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AILA Doc. No. 19082210 | Dated August 13, 2020
Per the decision in Pereira v. Session, individuals must be served with a notice to appear that specifies the time and place at which removal hearings will be held. This page tracks government efforts to comply with the ruling, court decisions, attorney and media resources, and more.
Immigrants who are subject to removal proceedings and have accrued 10 years of continuous physical presence in the United States may be eligible for cancellation of removal under to so-called “stop-time rule.” That period of continuous presence, however, is deemed to end when the individual is served with a notice to appear (NTA).
Per 8 U.S.C. §1229(a), such notices must specify the “time and place at which the proceedings will be held.” Nevertheless, in recent years, DHS served notices to immigrants that failed to specify the time, place, or date of initial removal hearings. The Board of Immigration Appeals (BIA) held that such notices triggered the stop-time rule, and the First Circuit Court of Appeals deferred to BIA’s interpretation.
In its June 21, 2018, decision in Pereira v. Sessions, the Supreme Court held that a putative NTA that fails to designate the specific time or place of removal proceedings is not an NTA under 8 U.S.C. §1229(a) and does not trigger the stop-time rule.
In the months following Pereira, some immigration judges applied Pereira to hold that NTAs that fail to identify the hearing time and place not only failed to trigger the stop-time rule, but also did not give the immigration court jurisdiction over the proceeding under 8 C.F.R. §1003.14(a).
On August 31, 2018, the BIA, however, issued Matter of Bermudez-Cota holding that an NTA that does not specify the time and place of an individual’s initial removal hearing can meet the requirements of 8 U.S.C. § 1229(a) if combined with a later hearing notice identifying that information. The BIA also determined that the combination of an incomplete NTA and a subsequent hearing notice vests jurisdiction in the immigration court.
On May 1, 2019, in another decision, the BIA held that, where an NTA lacks the date and time of the first removal hearing, the subsequent service of a hearing notice indicating the date and time of initial removal hearing triggers the stop-time rule as of the date of the hearing notice for purposes of cancellation of removal. (Matter of Mendoza-Hernandez and Matter of Capula-Cortes) In general, courts of appeals have agreed with the BIA that lack of time and place information in an NTA does not deprive IJs of jurisdiction.
Since Pereira, DHS has issued some NTAs with fake hearing times and dates in an attempt to comply with the ruling. AILA members have reported that their clients have received both NTAs listing fake times/dates outside of normal court operating hours—such as a hearing time of midnight or a hearing on a date that does not exist—as well as times/dates that may not appear to be obviously fake, but are not scheduled in the EOIR system. Many respondents with these fake time/date NTAs have appeared at court on the date and time listed on their NTAs, only to discover that their NTAs have not been filed with the court or that their hearings were scheduled for different dates. Immigration courts have confirmed that the times/dates are not real.
Cite as AILA Doc. No. 19082210.
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