Leading Immigration Attorney Comments on Supreme Court’s Decision Not to Honor Notices to Appear That Do Not Specify the Date and Time of Any Removal Hearings

Kerry Bretz
Kerry Bretz, Partner, Bretz & Coven, LLP

New York, New York — In a decision that can be considered a victory for non-citizens possibly facing removal, the U.S. Supreme Court recently ruled that, if a notice to appear does not indicate a date and time when the person is supposed to attend removal proceedings, then it is defective and, therefore, cannot stop time for the physical presence requirement. Kerry Bretz, Partner, Bretz & Coven, LLP, says that eligible non-citizens who have been living in the U.S. and have received an incomplete notice to appear can now apply for 10-year cancellation of removal.

In Pereira v. Sessions, the plaintiff, a non-citizen who came from Brazil, was ordered removed in absentia when he did not answer a notice to appear. In 2006, the Department of Homeland Security issued the plaintiff a notice to appear for his initial hearing, but it did not provide him a date and time; instead, it ordered him to appear at a date and time to be determined. In 2007, the immigration court sent a notice to appear with the date and time, but it was sent to the wrong address and the notice was returned as undeliverable. The plaintiff claimed that he never received the notice to appear and argued that he was eligible for cancellation of removal because he lived in the U.S. continuously for 10 years. The immigration court and the Bureau of Immigration Appeals rejected the plaintiff’s argument.

On June 21, 2018, the U.S. Supreme Court ruled 8-1 in favor of the plaintiff. “[A]n essential function of a ‘notice to appear’ is to provide non-citizens ‘notice’ of the information (i.e., the ‘time’ and ‘place’) that would enable them ‘to appear’ at the removal hearing in the first place,” the Court wrote. “Without conveying such information, the Government cannot reasonably expect non-citizens to appear for their removal proceedings.”

Under certain circumstances, non-citizens who have accumulated 10 years of continuous physical presence in the U.S. may be eligible to apply for 10-year cancellation of removal. However, once the government issues a notice to appear to the non-citizen, it triggers a “stop-time” rule and the individual is no longer able to accrue time towards the physical presence requirement. The Supreme Court’s recent decision allows non-citizens to continue to accumulate physical presence if the notice is considered to be defective because it does not provide a date and time for a hearing.

Mr. Bretz says the Pereira decision will be far-reaching beyond typical removal cases. He also noted the U.S. government admitted that almost none of the notices they sent out in the last three years provided a date and time for the hearing.

“This decision may impact a wide range of cases, including those who failed to appear in immigration court and were ordered removed and deported in absentia, those who have already been ordered removed and deported and those whose cases are pending or on appeal,” he says. “This is an indication that this Supreme Court — even with Trump appointees — is concerned about erosions of due process under the Trump administration.”

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