Pereira v. Sessions: What should you do? Motion to Reopen? Terminate?

In Pereira v. Sessions, the Supreme Court held that a Notice to Appear that does not contain the date, time, and place where a removal hearing is to take place is defective.  Further, it will not"stop time" for various purposes.  Let's take a look at the stop time rule.


INA § 240A(d) states that continuous physical presence stops when an alien is served with a Notice to Appear (NTA).  Ten years of continuous physical presence is a necessary element of Cancellation of Removal for Non-Permanent Residents.  So if a person has been physically present for fifteen years, but was served with an NTA at year 9, they cannot get the necessary ten years of physical presence.  


Many immigrants have encountered this heartbreaking situation.  


Until now, most NTA's simply stated that an alien will have to show "At a time and place to be determined." The Supreme Court ruled (by an 8-1 majority) that for an NTA to be truly effective, it needs specify the date and time the alien must appear.  So the effect is that most NTA's are defective and that some aliens may now qualify for Cancellation of Removal.


Should I terminate my case?

In some situations, terminating a case may make sense.  In most situations immigrants who did not get ten years of presence before their NTA was issued should.  But there may be times when an immigrant in removal proceedings would want to keep their NTA.  Some immigrants have children who may turn 21 years old by the time they get a decision by an immigration judge.  You'll want to consider your decision carefully.


What about 212(h) waivers?

One area where I've litigated a number of cases is the 212(h) waiver.  One of the requirements of these waivers is that an alien who has not been a lawful permanent resident for 7 years or more before committing the deportable offense cannot apply.  Once again, the time counted toward the 7 years stops when an NTA is issued.  While Pereira dealt with Cancellation of Removal, it is not a stretch to argue that the holding should affect 212(h) waiver eligibility as well.   


If I was denied Cancellation of Removal because I did not have ten years of physical presence, can I get my case reopened?

This is an unanswered question.   I've previously argued that since the law did not change, the courts are obliged to rectify a misinterpretation of the law.  In that case, various courts have reopened cases.  The BIA also has the ability to reopen a case sua sponte, which means "on its own."  In some instances the BIA will look at the equities or the strength of the case, and determine that an immigrant should get another opportunity to present his or her case.  If you are in this position, no matter your location in the country, please contact me.  


Michael Campise





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