HAWAII'S ONLY WEEKLY FILIPINO-AMERICAN NEWSPAPER
SERVING THE FILIPINO COMMUNITY SINCE 1993
JULY 7, 2018
LEGAL NOTES

NTA with No Time or Place Does Not Stop Cancellation of Removal

by Atty. Reuben S. Seguritan

A recent US Supreme Court decision on cancellation of removal could benefit thousands of nonpermanent residents who are currently under deportation proceedings or who have been ordered removed, or who have already been deported.

Cancellation of removal is a relief available to nonpermanent residents who are subject to removal proceedings. They may be eligible for green card through cancellation of removal if the following criteria are met:

1. They have been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of application for cancellation;

2. They have been a person of good moral character for 10 years;

3. They have not been convicted of certain crimes or violated certain laws that would make them inadmissible or deportable; and

4. Their removal would result in exceptional and extremely unusual hardship to their spouse, parent or child, who is a citizen of the United States or lawful permanent resident.

The 10 years of continuous physical presence requirement means that the person has not been out of the US for more than 90 days at a time, or 180 days in the aggregate during the 10 year period. If however, he has served a minimum of 24 months in the US Armed Forces, was present in the US during the enlistment or induction and is either currently serving or has been honorably discharged, then the 10 year continuous presence requirement has been met.

However, if he receives a Notice to Appear (NTA) from the Department of Homeland Security (DHS) informing him of removal proceedings against him, then the period for the 10 year continuous presence requirement is deemed to have ended. This is known as the stop-time rule.

In the recent case of Pereira v. Sessions, a Brazilian citizen entered the US in 2000. He remained in the US after his visa expired. In 2006 he received an NTA from the DHS. However, the NTA did not specify the date and time of his initial removal hearing.

In 2007, the Immigration Court mailed him an NTA with the date and time for his initial hearing. But the notice was sent to the wrong address and was returned as undeliverable. Hence, the Brazilian did not appear during the hearing. The Brazilian was ordered removed from the US by the Immigration Court in absentia.

In 2013, the Brazilian was arrested for a minor motor vehicle violation and detained by the DHS. The Immigration Court reopened the removal proceedings against him after he proved that he never received the NTA in 2007 with the date and time for his removal hearing. He then applied for the cancellation of removal on the ground that he had continuously lived in the US for more than 10 years. The Immigration Court disagreed with him and ordered his deportation because the NTA sent to him in 2006 triggered the stop-time rule which ended the period to complete the 10 years.

The Board of Immigration Appeals (BIA) agreed with the findings of the Immigration Court and stated that even if the 2006 NTA did not specify the date and time for his removal hearing, the NTA was sufficient to trigger the stop-time rule.

On appeal to the Court of Appeals for the First Circuit, his petition for review was denied. The court said that although the stop-time rule was ambiguous, the BIA’s interpretation of the rule was a permissible reading of the law.

The US Supreme Court reversed the decision of the Court of Appeals and remanded the case for further proceedings. It declared that the Department of Homeland Security (DHS) must include the time, place or date of initial removal hearings in the notice to appear (NTA) sent to nonpermanent residents in order to trigger the stop-time rule. In the case of the Brazilian, none of the NTAs that were sent to him satisfied this requirement and hence the stop-time rule was not triggered. The NTA sent to him in 2006 did not state the date and time for the hearing. The NTA in 2007 was not received by the Brazilian and was returned undeliverable.

REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at (212) 695 5281 or log on to his website at www.seguritan.com

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