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Notice to Appear (NTA) Without Date and Time

Pereira v. Sessions and the aftermath

Section 1229b(d) of 8 U.S.C., also known as the stop-time rule, governs the calculation of continuous residence or physical presence for accumulating the 10 years of continuous physical presence required for non-LPR (non-Legal Permanent Resident) cancellation or the 7 years of continuous residence required for LPR (Legal Permanent Resident) cancellation. Subsection (A) of 8 U.S.C. § 1229b(d)(1), provides that the accrual of these time periods “shall be deemed to end . . . when the [noncitizen] is served a notice to appear under [8 U.S.C. § 1229(a)]

In Pereira v. Sessions, __ U.S. __, 138 S. Ct. 2105 (2018), the U.S. Supreme Court held that service of a defective Notice to Appear (NTA) which does not contain the time and place of the removal proceedings, does not cut off eligibility for cancellation of removal. In other words, a defective NTA does not cut off a noncitizen’s ability to accrue the time in the United States required to qualify for cancellation of removal.

The rationale underlying the Court’s decision in Pereira, more broadly affects both ongoing and closed cases initiated by defective Notices to Appear. Those aliens with final orders of removal may seek reopening and termination of proceedings based on the argument that jurisdiction cannot vest with an Immigration Court where a defective NTA is filed or they can seek reopening to allow them to pursue non-LPR cancellation of removal.

However, in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018) the BIA determined that an NTA “that does not specify the time and place of an alien’s initial removal hearing vests an Immigration Judge with jurisdiction over the removal proceedings and meets the requirements of section 239(a) of the Act, so long as a notice of hearing specifying this information is later sent to the alien.”Id.at 446. Despite Matter of Bermudez-Cota, it is our opinion that the decision in Pereira is not limited to the stop-time rule and our attorneys will continue to bring the issue to the Circuit Courts.  

Matter of A-B- and asylum claims based on domestic violence and gang-based asylum claims

Early this year, a decision issued by Attorney General Jeff Sessions, Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), overruled Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). In A-R-C-G- the Board had previously held that, depending on the facts and evidence in an individual case, "married women in Guatemala who are unable to leave their relationship" could constitute a cognizable particular social group. Through Matter of A-B- the Attorney General has made clear his desire to close the door on domestic violence and gang-based asylum claims by those fleeing persecution from "private actors."

But we continue to push these cases forward, just as we did pre-Matter of A-R-C-G. We will continue to argue viable claims based on multiple social groups and other protected grounds, such as gender, religion, nationality, race and political opinion.

For example, when focusing mainly on the domestic relationship will now be unsuccessful, a viable argument can be for that gender is the primary motivating factor for the persecution in a domestic violence case, gender alone can constitute a particular social group in some cases.

We will continue to conduct a case by-case analysis and articulate viable social groups for cases based on gang violence. As Matter of A-B cites to Matter of M-E-V-G-, gang violence claims are not precluded as a blanket matter. (see Matter of M-E-V-G-, 26 I. & N. Dec. at 251).

Gordon Landefeld