Breaking News: US Supreme Court Issues Groundbreaking Decision on Notices to Appear and the Stop-time Rule

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On April 28, 2021, the United States Supreme Court issued a 6-3 decision in the case Niz-Chavez v. Garland that will likely have a major impact on many noncitizens who are currently in immigration court proceedings or who previously lost their immigration court cases.

Specifically, the Supreme Court held that a “Notice to Appear” (NTA), which is the document that begins a noncitizen’s immigration court proceedings, only triggers the “stop-time rule” for the purposes of cancellation of removal for non-US lawful permanent residents (cancellation of removal or 10-year cancellation) if the NTA contains all of the information required by law in a single document, not in multiple documents.

The US Supreme Court’s Decision in Niz-Chavez v. Garland

The noncitizen in the case, Mr. Niz-Chavez, came to the United States from Guatemala by unlawfully crossing the US-Mexico border in 2005.  In March 2013, the US Department of Homeland Security began Mr. Niz-Chavez’s immigration court proceedings by issuing a document labeled a “Notice to Appear.” However, the NTA did not contain the time and date of Mr. Niz-Chavez’s court hearing. Later, in May 2013, the Department of Homeland Security issued a second notice to Mr. Niz-Chavez that contained the date and time of his immigration court hearing. Mr. Niz-Chavez applied for protection from deportation to Guatemala, but in 2017 the immigration judge denied Mr. Niz-Chavez’s applications and allowed him to voluntarily depart the US.

Mr. Niz-Chavez appealed the immigration judge’s decision and added the argument that his case should be sent back to the immigration court to allow him to apply for cancellation of removal under the US Supreme Court’s 2018 decision in Pereira v. Sessions. Cancellation of removal is a form of relief from deportation that requires, among other things, that the noncitizen continuously reside in the US for 10 years before an NTA is issued, since under the “stop-time rule,” the issuance of an NTA stops the 10-year clock for this relief. In Pereira v. Sessions, the Supreme Court held that the 10-year clock for cancellation of removal does not stop if the NTA does not contain all of the required information under the US immigration law, including the date and time of the immigration court hearing.

However, Mr. Niz-Chavez’s appeal failed because the Board of Immigration Appeals and the Sixth Circuit Court of Appeals determined that the “stop-time rule” is satisfied as long as a later hearing notice contains the time and date of the immigration court hearing. Therefore, since Mr. Niz-Chavez still lacked 10 years of continuous presence in the US by the time the hearing notice containing the time and date of his court hearing was served in May 2013, the BIA and Circuit Court determined that he was not eligible for cancellation of removal. Mr. Niz-Chavez requested that the US Supreme Court review his case.

In its majority decision today, the US Supreme Court focused on the word “a” in the immigration statute’s phrase “a notice to appear” to conclude, based on the plain language of the statute, that the 10-year continuous presence clock for cancellation of removal only stops if the US government serves a single NTA that contains all of the information required to start removal proceedings (including the date and time of the court hearing). However, the 10-year clock does not stop if the government serves two or more documents that contain the required information when considered together.

What This Means for You

While we still need to see how the Board of Immigration Appeals will respond to today’s decision, the Supreme Court’s decision in Niz-Chavez v. Garland means that if an noncitizen’s NTA lacks all of the information required to start removal proceedings, including the time and the date of the removal hearing, then the “stop-time rule” was never triggered by the issuance of the NTA, and the noncitizen may be eligible to apply for cancellation of removal in the immigration court if they can show at least 10 years of continuous physical presence in the United States, along with the other requirements for this relief. Additionally, noncitizens who were unable to apply for cancellation of removal in immigration court because an (incomplete) NTA presumably cut off their continuous presence in the US before they reached 10 years may now have a valid reason to request that their immigration cases be reopened.

If the NTA in your case did not contain the time and date of your immigration court hearing, and you can show that you satisfy the requirements for cancellation of removal [(1) you have at least 10 years of continuous physical presence in the US; (2) you have good moral character; (3) you have not been convicted of certain criminal offenses; and (4) you can establish that your deportation would result in exceptional and extremely unusual hardship to your US citizen or US lawful permanent resident spouse, parent, or child under age 21], then you may be eligible to pursue this application with the immigration court based on the Supreme Court’s decision today.

Please speak to an experienced immigration attorney to determine if the Supreme Court’s decision in Niz-Chavez v. Garland affects your immigration case.

 

 

Written by Joseph Fungsang, an immigration attorney and partner-in-charge of the New York City office of Margaret W. Wong & Associates LLC. The above text is for informational purposes only and is not legal advice.

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