On April 29, 2021, the U.S. Supreme Court issued a decision providing new hope for immigrants and advocates navigating the complex and confusing world of the immigration court system. The opinion in Niz-Chavez v. Garland requires the government to specify the date and time for an individual in deportation proceedings to appear before an Immigration Judge for the notice to “stop the clock” on the 10-year continuous presence requirement for Cancellation of Removal.
To understand the import of the opinion, some background is necessary. Immigration court proceedings start with a Notice to Appear (“NTA”) or Form I-862. The NTA instructs a person to appear before an Immigration Judge to begin the deportation process. The form itself has blanks where the date and time of the hearing are to be inserted. For decades, immigration officials neglected to include the date and time of the hearing on the NTA, instead simply noting in the blanks that dates and times would be set some time in the future.
Why is including this information on the NTA important, aside from the obvious issues associated with commanding someone to appear before a judge at an unspecified date and time? Because it can be determinative of whether a person can apply for “Cancellation of Removal.” Cancellation of Removal is a limited form of legal relief that can stop or cancel a person’s deportation and provide them with legal status to remain in the United States.
However, convincing an immigration judge that a person qualifies for Cancellation of Removal is not easy. One challenging evidentiary requirement involves establishing that the applicant has a close relative who is a U.S. citizen or Green Card holder and that that relative will suffer “extreme and exceptional” hardship if the applicant is removed from the United States. A seemingly simple requirement is proving that the person in deportation proceedings has been continuously present in the United States for at least 10 years. The 10-year “continuous presence” clock stops when a person is served with a valid NTA, even if the person remains physically located in the United States until the date of his or her eventual hearing. This means a wife caring for her disabled U.S. veteran husband who receives an NTA just days short of reaching 10 years would not be eligible for Cancellation of Removal.
With this Supreme Court decision, the government can no longer rely on NTAs lacking specific dates and times for removal hearings to stop the “continuous presence” clock. A valid NTA must include the date and time.
How does this impact me?
If you received an NTA that did not include a specific date and time for your deportation hearing you may now be eligible to apply for Cancellation of Removal. This opinion applies to individuals that are currently in removal proceedings, with a pending decision, or even if a decision has been issued. If you or your family member are currently in or were in immigration proceedings, contact us today to see if you are eligible for Cancellation of Removal after this significant Supreme Court ruling. We are ready to be of service to you and/or your loved ones.
