As ICE continues to target the greater Austin area, and the Trump administration aggressively expands its crackdown on immigrants everywhere, one ray of hope has emerged for those seeking relief from deportation. On June 21, 2018, the U.S. Supreme Court issued its decision in Pereira v. Sessions, which has broad implications for persons in removal proceedings.
The most immediate effect of the Supreme Court’s decision in Pereira is to expand eligibility for cancellation of removal. A non-permanent resident is eligible for cancellation of removal if he or she has been physically present for ten continuous years in the United States, has demonstrated good moral character, has a U.S. citizen or lawful permanent resident (LPR) spouse, child, or parent who would suffer exceptional and extremely unusual hardship in the event of deportation, and meets certain other requirements. Likewise, a permanent resident who is otherwise deportable (for instance, because of a criminal conviction) is eligible for cancellation of removal if he or she has been physically present in the United States for seven or more years following a lawful admission and meets certain other requirements.
Prior to Pereira, the ten years of physical presence, or seven years in the case of an LPR, would stop on the day the person was issued a “notice to appear,” which is the charging document that the Department of Homeland Security (DHS) that serves to place a person into removal proceedings. However, in Pereira, the Supreme Court concluded that a notice to appear which does not contain the date and time of the person’s removal hearing, as required by the Immigration and Nationality Act, is not sufficient to invoke this “stop-time” rule. Indeed, most of the notices to appear issued by DHS over the 15 years do not contain the date and time of the removal hearing; rather, the document often lists the date and time of the hearing as “TBD” (to be determined), which is legally insufficient. Thus, following Pereira, many persons who were not previously considered eligible for cancellation of removal because they were not physically present for at least ten years at the time their notice to appear was issued (or seven years in the case of LPRs), may now be eligible to apply because of the extended delays which are common in removal proceedings.
Notwithstanding, the effects of Pereira may be even broader. An Immigration Judge does not have jurisdiction to issue a removal order against a person unless DHS files a notice to appear with the Immigration Court. Yet, if that notice to appear does not contain the date and time of the removal hearing, it is defective; indeed, the Supreme Court stated that a notice lacking the date and time of the hearing cannot even be considered a notice to appear. In such cases, the Immigration Judge might not have jurisdiction over the case.
Accordingly, DMCA attorneys have been filing motions to terminate proceedings in cases where the notice to appear failed to state the date and time of the removal hearing. In the short time since Pereira was decided, we have already seen several of our motions granted. We will also be filing motions to reopen cases in cases where the person’s notice to appear did not list the date and time of their hearing, but the person was ordered removed nonetheless.
If you or a loved one have been detained, picked up by ICE, placed into removal proceedings, or ordered removed, please schedule an appointment to visit a DMCA attorney to see if this new Supreme Court decision has any effect on your case. DMCA has an experienced and committed team of litigators, including in Austin, who are dedicated to fighting for the rights of our clients in removal proceedings.