On June 21, 2018, the Supreme Court issued a decision in Pereira v. Sessions which will benefit many thousands of persons who are in removal/deportation proceedings, who have been ordered to leave the US or who have already been deported.
Immigration attorneys are filing thousands of Motions to Reconsider and applying for Cancellation of Removal for persons who have been found deportable in the past. Some of these persons are also be eligible for other forms of relief from deportation. For example, a person who married a US citizen may be eligible for adjustment of status.
The Supreme Court, by an 8 to 1 vote, ruled that Mr. Pereira, a Brazilian citizen who came to the US on a visitor’s visa in 2000, overstayed and was placed in removal proceedings in 2006, was eligible to apply for a green card through cancellation of removal as a non-LPR.
One of the requirements for Cancellation of Removal is that a person be physically present in the US for 10 years or more. The law provides that if the person receives a Notice to Appear (NTA) before an Immigration Judge, his period of continuous residence is deemed to end. This is known as the “stop time rule”.
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How did Mr. Pereira satisfy the 10-year rule since he was served with an NTA 6 years after he arrived in the US?
The Immigration Judge, the Board of Immigration Appeals (BIA) and the US Court of Appeals for the 1st Circuit all held that he did not satisfy the 10-year requirement since he was served with an NTA in 2006, 6 years after he arrived in the US. However, the Supreme Court held that because the NTA did not specify the date and time of his hearing before the Immigration Judge as required by law, the NTA was invalid and the stop time rule did not apply.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created the requirements for both Cancellation of Removal and the stop-time rule. IIRIRA requires that the NTA must specify the “time and place at which the proceedings will be held”. 8 USC 1229b(d)(1)
However, the NTA which Mr. Pereira received in 2006 did not specify the date and time of his hearing. Instead, it simply ordered him to appear before an Immigration Judge “at a date to be set at a time to be set”. Therefore, the Supreme Court held that since the NTA did not comply with the requirements of the law, the stop-time rule does not apply.
Who Benefits Under the Pereira Decision?
This decision is significant in that it applies not only to Mr. Pereira, but to many thousands of persons who are currently in removal proceedings as well as to persons who have been ordered deported from the US and to those who have already been deported.
In 1997, after the passage of IIRIRA, the Attorney General promulgated a regulation stating that an NTA served on a noncitizen need only provide “the time, place and date of the initial removal hearing, where practicable.” 62 Fed. Reg. 10332 (1997). Per this regulation, the government typically does not inform persons of the date and time of their initial hearings in Immigration Court on their NTAs. The Supreme Court held this regulation to be invalid, and ruled that these NTAs do not comply with the law and, therefore, the stop-time rule does not apply.
As a result, there are many thousands of persons who are now eligible to reopen their removal proceedings to enable them to apply for relief from deportation.
Mr. Pereira was able to accumulate 10 years of physical presence in the US because, in 2007, when the government sent him an NTA with the date and time of his hearing before an Immigration Judge, the government sent the NTA to an incorrect address. By the time he was turned over to the DHS in 2013 as the result of a traffic violation, he had satisfied the 10-year continuous physical presence requirement for cancellation of removal.
The Supreme Court’s decision will allow thousands of persons whose cases are before Immigration Judges or on appeal to the BIA or the Federal Courts to apply for cancellation of removal. It also benefits persons who have been ordered deported, granted voluntary departure or who have been granted relief, like withholding of removal, which does not lead to permanent resident status.
To qualify for relief from removal under Pereira, a person must qualify to apply for cancellation of removal if the stop time rule does not apply to them because their NTA did not specify the date and time of their hearing before an Immigration Judge. Cancellation of removal is available to those who meet the following requirements:
- You have been physically present in the US for a continuous period of 10 years prior to the institution of removal proceedings. (This requirement is not applicable if you have served a minimum of 24 months in the US Armed Forces, were present in the US during your enlistment or induction, and are either serving honorably or have received an honorable discharge.) “Continuous” means that you can not be out of the U.S. for more than 90 days at a time, or 180 days in the aggregate, during the 10-year period.
- You have been a person of good moral character for 10 years;
- You are not inadmissible under §212(a)(2) or (3) (criminal and security grounds) or deportable under §237(a)(1)(G) (marriage fraud), (2) (criminal grounds), (3) (failure to register and falsification of documents) or (4) (security and related grounds).
- Your removal would result in exceptional and extremely unusual hardship to your spouse, parent, or child, who is a citizen of the United States or a lawful permanent resident.
Persons who meet the above criteria should consult with immigration attorneys as soon as possible to learn what needs to be filed to request that an Immigration Judge or the BIA reconsider their cases. While their applications for cancellation of removal are pending, they are eligible to receive Employment Authorization Documents (EADs).
An even bigger question is whether any removal proceeding initiated with a defective NTA fails to comply with jurisdictional requirements. Already, some Immigration Judges have granted Motions to Terminate. We will discuss this issue in a subsequent blog post.
As a former INS Trial Attorney (1976-82), I wouldn’t be surprised if the number of persons who benefit from the Pereira decision number is in the hundreds of thousands.
Additional Resources: Pereira v. Sessions
- Strategies and Considerations in the Wake of Pereira v. Sessions – AIC & CLINIC (July 2018)
- Pereira v. Sessions: Challenging the Validity of Notices to Appear Lacking Time-and-Place Information – National Immigrant Project (July 2018)
- Could Matter Of Bermudez-Cota Narrow The Holding In Pereira? (8-31-18)