How the Supreme Court’s Decision in Niz-Chavez v. Garland Can Help Noncitizens

One of the most significant factors that could open the door for a noncitizen facing a removal also known as a deportation proceeding to fight to stay in the United States is the amount of time that the noncitizen has been living in the United States. A form of relief based on the time present in the United States is available that is known as Cancellation of Removal that if granted by an immigration judge will lead to the noncitizen to be allowed to permanently live in the United States.

For noncitizens that are Legal Permanent Residents, (LPR) and who committed an immigration law violation, such a noncitizen can qualify for such relief if the LPR can prove continuous residence in the United States of 7 years. For a noncitizen who has no legal status in the United States, such noncitizen would have to prove continuous physical presence of 10 years. You can view our discussion of the eligibility requirements for both versions of Cancellation here.

The immigration laws state that the accrual of either the 7- or 10-year time periods will end upon the commission of certain crimes or when the noncitizen is served a notice to appear (NTA). This article addressing recent Supreme Court holdings is focused on the portion of the law that stops accrual of the relevant time due to service of the NTA.

This is a significant case because the Supreme Court held that an NTA is invalid if it does not specify the place, date or time of the hearing. The Court in an 8-1 decision concluded that an NTA that does not inform a noncitizen of when and where to appear for removal proceedings is not a notice to appear under the immigration law.

In the months after the Pereira decision thousands of motions were filed before Immigration Courts nationwide arguing that a defective NTA could not vest proper jurisdiction on an immigration court resulting in a significant rise of dismissals of removal proceedings in immigration courts across the country. However, these cases were then appealed by the government.

Formed as a neutral tribunal to hear immigration court appeals, the Board of Immigration Appeals, (BIA) issued a decision on August 31, 2018 titled Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), concluding that a defective NTA did not deprive the immigration court of jurisdiction and could not serve as a basis for termination of removal proceedings, when the court also served a subsequent notice of hearing on the noncitizen communicating the time and place of the hearing.

Subsequently in a case titled Matter of Mendoza-Hernandez & Capula Cortez, the same BIA concluded that a defective NTA that is followed by a subsequent hearing notice also cures the defective NTA for purposes of triggering the stop-time rule.

The Supreme Court in a case titled Niz-Chavez v. Garland clarified that the subsequent hearing notice, informing a noncitizen of the time and place of the hearing does not cure the defective NTA for the purposes of the stop time rule. This is the latest chapter in the litigation involving the potential consequences of a defective NTA on pending removal proceedings. Although the Supreme Court has clarified the issue with respect to the stop time rule, the issue with respect to whether an immigration court has proper jurisdiction has yet to be addressed and clarified by the Supreme Court.

Essentially two classes of noncitizens. Noncitizens who have a pending removal proceeding who had an NTA served before the noncitizen accrued the required 7 or 10 years, and now can count time accrued after the service of the NTA towards the 7- or 10-year time period.

Noncitizens who similarly were served with an NTA before accruing the 7 or 10 years, but whose case is completed, and have a pending removal order which if executed will result in their physical removal from the United States.

If the noncitizen is still in a pending removal proceeding, the noncitizen should now calculate how much time he or she has been present in the United States, including time accruing after the service of the NTA and if the total time meets the relevant time mark, then proceed to file the application for Cancellation of Removal.

Options for noncitizens with an outstanding order of removal are not as simple to carry out, but these options are still very viable.

Both motions could be appropriate. A Motion to Reconsider is appropriate when arguing that the judge incorrectly interpreted the stop time rule prior to the Niz-Chavez decision. The problem with the Motion to Reconsider is that such a motion is supposed to be filed within 30 days of discovering the error which if based on the date of the Supreme Court decision of April of 2021, such a motion may be out of time since more than 30 days have run since the date of the decision.

A Motion to Reopen maybe appropriate when arguing that new eligibility was created for Cancellation of Removal in light of the Niz-Chavez decision. Again, like the Motion to Reconsider, although the time to file a Motion to Reopen is longer, 90 days, it has been more than 90 days since the issuance of the Supreme Court’s decision.

However, keep in mind that depending on the circumstances of the noncitizen, arguments can be made that the 30- or 90-day limitation should be equitably tolled based in part on the circumstances under which the noncitizen discovered the new eligibility for Cancellation of Removal. That’s a discussion for another day.

Based on the recent policies being implemented by President Biden’s administration, the U.S. government, more specifically, the Department of Homeland Security, (DHS) has issued guidance for government attorneys to review and potentially exercise their discretion to join or not oppose a motion to reopen filed by a noncitizen who now can be credited with the qualifying time period and can demonstrate that they are prima facie eligible for Cancellation of Removal. However, it is important to note that this posture remains in effect until November 16, 2021, six months after the Supreme Court’s decision. It’s not entirely clear whether such discretion will be exercised after the November date, but if you or a loved one has a pending order of removal and was not previously allowed to apply for Cancellation of Removal because of the stop time rule, you will want to have one of our experienced attorneys review your case and help you determine if you are now eligible to potentially file a motion to reopen using the assistance of the government’s discretionary authority.

Likewise, we can help you with your pending removal proceeding and in preparing and filing an application for Cancellation of Removal. Also, keep in minds other forms of prosecutorial discretion in effect that we have discussed in our article here.