Featured Issue: The Pereira Ruling and Resulting Fake NTAs
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.
- Supreme Court Rules That Notices Triggering Stop-Time Rule Must Include Time and Place in Pereira v. Sessions -June 21, 2018
- Think Immigration: A Victory for Due Process – June 27, 2018
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.
Attorney Practice Resources
- CLINIC Practice Advisory on Strategies and Considerations in the Wake of Pereira v. Sessions – December 3, 2019
- Geoffrey A. Hoffman: Litigation Post-Pereira: Where Are We Now? - August 27, 2019
- Practice Alert/Call for Examples: DHS Issuing NTAs with Fake Times and Dates – August 16, 2019
- Jeffrey S. Chase Blog: Latest Pereira Developments – June 3, 2019
- Practice Alert: Pereira v. Sessions and Matter of Bermudez-Cota – October 10, 2018
- Strategies and Considerations in the Wake of Pereira v. Sessions and Matter of Bermudez-Cota (Recording) – September 26, 2018
- An Attorney’s Ethical and Legal Obligations to Pereira-Affected Clients - September 18, 2018
- NIPNLG and IDP Practice Advisory: Challenging the Validity of Notices to Appear Lacking Time and Place Information – July 16, 2018
- EOIR Provides Guidance on the Phase-Out of the Interactive Scheduling System
- Companion guidance: ICE Provides Guidance on the Phase-Out of the Interactive Scheduling System
- Aaron Hall obtained emails via FOIA that confirmed that for scheduling of initial immigration court dates, the DHS Portal replaced CASE-ISS as of August 2019.
- FOIA Results: Failure To Prosecute Cases – October 28, 2019
- On December 21, 2018, EOIR Director McHenry published PM 19-08, “Acceptance of Notices to Appear and Use of the Interactive Scheduling System,” instructing immigration courts to “reject any NTA in which the time or date of the scheduled hearing is facially incorrect—e.g. a hearing scheduled on a weekend or holiday or at a time when the court is not open.”
- In over 5,000 immigration court cases that DHS attempted to initiate after the 12/21/2018 EOIR memo proclaimed the “fake date” issue solved, EOIR had to close the case because DHS failed to submit the charging document to the court by the purported initial hearing date.
- EOIR "Acceptance Guidelines for Notices to Appear"
- In response to a FOIA submitted by AILA member Aaron Hall, EOIR produced a chart of "Acceptance Guidelines for Notices to Appear." Most glaringly, the chart shows that immigration courts have been instructed to accept NTAs directing an initial appearance at a "TBD" time. This is in spite of the Supreme Court's holding that "…Congress fully intended to attach substantive significance to the requirement that noncitizens be given notice of at least the time and place of their removal proceedings" and that a "document that fails to include such information is not a "notice to appear" under the statute. Pereira v. Sessions, 138 S. Ct. 2105, 2118 (2018).
- The chart also indicates that if an NTA lists one court and the NTA is filed in another, the court NTA-receiving court should reject the NTA unless it is filed along with a DHS memo memorializing the change in location that has been served on the respondent. It is unclear from the acceptance guidelines what that DHS "memo" would look like or what it would be required to contain.
- EOIR Policy Memo, PM 19-08: EOIR Releases Memo on Acceptance of Notices to Appear and Use of the Interactive Scheduling System – December 21, 2018
- EOIR Releases Internal Guidance on Pereira v. Sessions – July 11, 2018
- Matthew Hoppock: FOIA response containing email from EOIR to a court administrator authorizing "set up" and use of "dummy dates" – June 27, 2018
- Matthew Hoppock: FOIA response containing EOIR emails on “dummy dates”
- BIA Dismisses Motion to Reopen, Distinguish Pereira in Matter of Miranda-Cordiero – May 22, 2019
- BIA Denies Motion to Reopen and Distinguishes Pereira in Matter of Pena-Mejia – May 22, 2019
- BIA Remands, Finding that a Subsequent Notice of Hearing Can "Perfect" a Deficient NTA in Matter of Mendoza-Hernandez and Matter of Capula-Cortes - May 1, 2019
- BIA issued a precedent decision in Matter of Bermudez-Cota - August 31, 2018
Courts of Appeals Decisions
- CA9 Says NTA That is Defective Under Pereira Cannot Be Cured by a Subsequent Notice of Hearing in Lorenzo Lopez v. Barr – May 22, 2019
- CA7 Finds DHS’s Failure to Include Date and Time in NTA Was Not a Jurisdictional Flaw in Ortiz-Santiago v. Barr – May 20, 2019
- CA2 Upholds Asylum Denial to Petitioner Convicted of First-Degree Assault in Connecticut in Banegas Gomez v. Barr – April 23, 2019
- CA9 Denies Petition for Review Citing Bermudez-Cota After NTA Didn’t Specify Time/Date in Karingithi v. Whitaker – January 28, 2019
- CA6 Grants Review of BIA Denial of Cancellation, Holds Findings Were Not Supported by Record and BIA Failed to Apply Appropriate Standard of Review in Hernandez-Perez v. Whitaker – December 14, 2018
AILA Amicus Briefs
- AILA, the Council, and Partners Submit Amicus Brief to SCOTUS on Two-Step Notice Process in Niz-Chavez v. Barr
- AILA, the American Immigration Council, and partners submit an amicus brief to the Supreme Court in Niz Chavez v. Barr, arguing that the government’s two-step notice practice distorts the congressional scheme and undermines fundamental fairness. The amicus brief includes case examples of how DHS’s use of fake dates for removal hearings as a solution to the Court’s mandate in Pereira has bred chaos and confusion in the immigration system.
- AILA Submits an Amicus Brief on the Two-Step Notice Process
- AILA submitted an amicus brief to the Fourth Circuit in Barillas v. Barr arguing that the BIA's conclusion that the two-step process triggers the stop-time rule conflicts with the statute's unambiguous text and unreasonably departs from the agency's consistent recognition that "a 'notice to appear'" is a single document, of which a subsequent hearing notice is not a constituent part.
- AILA Submits an Amicus Brief in the Third Circuit on the Two-Step Notice Process
- AILA submitted an amicus brief in Ramirez Perez v. Barr, arguing that the BIA's conclusion of the two-step process triggers the stop-time rule conflicts with the statute's unambiguous text and unreasonably departs from the agency's consistent recognition that a NTA is a single document.
- AILA Submits an Amicus Brief to the First Circuit on the Two-Step Notice Process
- AILA submitted an amicus brief to the First Circuit in Boutriq v. Barr, arguing that the BIA's conclusion of the two-step process triggers the stop-time rule conflicts with the statute's unambiguous text and unreasonably departs from the consistent recognition that a NTA is a single document.
- San Antonio Express-News: More than 100 show up at San Antonio immigration court for artificial hearing date – November 30, 2019
- Miami Herald: Fake court dates are being issued in immigration court. Here’s why – September 18, 2019
- Reuters: No 'day in court': U.S. deportation orders blindside some families - July 26, 2019
- Clerical errors and lack of notice are common in the U.S. immigration court system, say immigration lawyers and former judges. Clerks are juggling a backlog of more than 900,000 cases and rely on numerous people to log information based on quick interviews at the border.
- Of the about 64,000 cases filed on the docket, about 17,000 have been completed. Of those completed, more than 13,000 resulted in an in absentia removal order, Deputy Assistant Attorney General Joseph Edlow told lawmakers on Thursday.
- Washington Post: Hundreds Show Up for Immigration-Court Hearings That Turn Out Not to Exist – January 31, 2019
- CNN: 100+ Immigrants Waited in Line in 10 Cities for Court Dates That Didn’t Exist – November 2, 2018
- Vice: ICE Is Sending Out Fake Court Dates to Immigrants. Here’s Why. – November 1, 2018
- Reuters: U.S. Courts Abruptly Tossed 9,000 Deportation Cases. Here’s Why. – October 17, 2018
- AILA ICE Liaison Committee Meeting Q&As (10/23/18) – October 23, 2018
- Matthew Hoppock: Post-Pereira, the DOJ Chooses Harsh IJ Performance Metrics over Compliance with Supreme Court Mandate – September 20, 2018