As we have discussed before, the United States federal court system serves an extremely important function in ensuring that Congress and the President follow the law [1]. On April 29, 2021, we saw yet another example of this in the case of Niz-Chavez v. Garland and the decision made by the U.S. Supreme Court.
In Niz-Chavez v. Garland [2], Agusto Niz-Chavez argued that the Government cannot trigger the stop-time rule by issuing a defective Notice to Appear and then issuing a Notice of Hearing. As you may remember, the U.S. Supreme Court ruled in Pereira [3]that a Notice to Appear is defective if it does not contain all of the information required by law, including the date and time of the immigrant’s hearing in Immigration Court. As a result, it could not trigger the stop-time rule, time being essential for individuals applying for Cancellation of Removal (“10-year law”) [4]. If a person does not have 10 years of physical presence in the U.S. when a proper Notice to Appear is issued, then they cannot qualify for Cancellation of Deportation [5].
After the Pereira case, several courts decided that a defective Notice to Appear can be “cured” or fixed by a properly-issued Notice of Hearing, and as a result, the stop-time rule would be triggered. In Niz-Chavez, the U.S. Supreme Court rejected this approach. The Court concluded that the law was clear and the Government’s obligation was to include all of the information, including the date of time of the hearing, in a single Notice to Appear. Only then, could the stop-time rule be triggered.
Now, it remains to be determined exactly who will benefit from the Niz-Chavez decision but this is an example of someone who might: Manuel arrived in the United States on January 1, 2005. He was stopped by Immigration and was issued a Notice to Appear (NTA) that same day. Manuel’s NTA did not list a time or date for his removal / deportation hearing but on July 1, 2005 the Immigration Court sent him a Hearing Notice with the missing information. In 2010, Manuel, had a child born in the U.S. who had a serious medical condition. Unfortunately when Manuel had his final hearing before an Immigration Judge in 2015 the fact that his U.S. Citizen child needed treatment here in the U.S. did not prevent him from receiving a Deportation / Removal Order. Even though Manuel had been in the U.S. for 10 years, the NTA he was given was defective, and his son would experience what could qualify as an exceptional and extreme unusual hardship, if he had to leave the U.S.
Prior to this recent Supreme Court decision, Manuel would not have been able to count his 10 years in the U.S. for the purposes of qualifying for cancellation of removal / deportation [4] (the “10 Year Law”) as the time would have stopped counting for him once he received the Hearing Notice with the information that was missing from the NTA. This new decision, which allows the time to keep counting if a person is sent an incomplete Notice to Appear, means Manuel may be eligible for residence (Green Card) under the “10 Year Law”, as he may comply with both the requirement of 10 years of continuous presence and the extreme unusual hardship to a US citizen or resident.
The immigration landscape began changing with the Biden Administration, and as can be seen from the Niz-Chavez decision, it continues to change. It is important to reach out to an experienced team of immigration lawyers [6] like that of FitzGerald Law Company if you believe any of these changes impacts you or your family. Call for an appointment with one of our Boston immigration attorneys at: (617) 303-2600 or request your appointment online [7].