New Supreme Court Decision Could Save You From Deportation

On April 29, 2020, the U.S. Supreme Court issued a decision in Niz-Chavez v. Garland that could save thousands of immigrants from deportation. Justice Gorsuch wrote the 6 to 3 majority decision.

The Court held that the charging document for a removal proceeding, the Notice to Appear (NTA), is invalid if it does not specify the date and time of the hearing.

This is exactly how the Supreme Court ruled in 2018 in Pereira v. Sessions. However, during the past 3 years, the government has used numerous tactics in an attempt to limit the Court’s ruling in Pereira in order not to slow down the operation of its deportation machine.

For instance, the government has taken the position that even if the NTA does not specify the date and time of the hearing, a subsequent notice could “cure” it’s failure to do so.

In Niz-Chavez, the Supreme Court rejected this argument.

Judge Gorsuch’s majority opinion, which was joined by Justices Clarence Thomas, Stephen Breyer, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett, held that “a” Notice to Appear must contain the date and time of the hearing in order to confer jurisdiction of the matter to the Immigration Court. A subsequent notice to the immigrant does not cure this defect.

The majority opinion goes on to state that “if men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.”

The immigration law allows certain persons who have resided in the U.S. for 10 years to apply for a green card from an Immigration Judge under a procedure known as Cancellation of Removal. Mr. Niz-Chavez, like Mr. Pereira before him, had lived in the United States for less than 10 years when he was served with an NTA.

The service of a valid NTA invokes the “stop-time” rule. This rule prevents a person who has been in the U.S. for less than 10 years when the NTA is served on him to accumulate more time in the U.S. in order to apply for Cancellation of Removal.

However, the NTAs served on Mr. Niz-Chavez and Mr. Pereira were invalid because they failed to state the date and time of their hearings in Immigration Court. The Supreme Court ruled that service of an invalid NTA does not trigger the stop-time rule.

As they have now lived in the U.S. for over 10 years, both of their cases were remanded to an Immigration Judge to allow Mr Niz-Chavez and Mr. Pereira to apply for Cancellation of Removal.

Disclaimer: This newsletter is not intended to establish an attorney-client relationship. All information contained in this newsletter is generalized. Any reliance on information contained herein is taken at your own risk.