- The "stop-time rule" bars an alien from accruing the residence and/or presence required for cancellation of removal under section 240A of the INA when the alien commits specified criminal offenses or is served with a "notice to appear under section 239(a)" of the INA.
- Congress created the stop-time rule in response to the fact that aliens in deportation proceedings would delay those proceedings to accumulate the physical presence required to apply for suspension of deportation — the predecessor to the current relief of 42B cancellation.
- The Supreme Court in Pereira v. Sessions determined that an alien who was served with a "notice to appear" (NTA) that did not specify the time or date of the initial master calendar hearing in his removal proceedings was not barred under the stop-time rule from accruing the required presence in the United States for 42B cancellation in a case where the hearing notice providing that information was not served until he had acquired the requisite 10 years of physical presence in the United States for that relief.
- That decision left open the question of whether a timely hearing notice served before an alien accumulates the required presence or residence in the United States to become eligible for cancellation of removal under section 240A of the INA will bar such applicant's eligibility for that relief where a DHS-issued notice to appear previously omitted the time, date, and or/place of the initial master calendar hearing.
- The Board of Immigration Appeals (BIA) has determined that immigration courts are not divested of jurisdiction over removal proceedings where the NTA that does not specify the time and date of the initial master calendar hearing, so long as the immigration court sends a subsequent hearing notice providing that information, "perfecting" the NTA — the so-called "two-step process".
- The BIA has also held that the two-step process will trigger the stop-time rule to bar cancellation of removal. The Ninth Circuit rejected that logic, over a forceful dissent, but other circuit courts have adopted the BIA's logic in cancellation of removal cases.
- The Supreme Court has agreed to decide, in Niz-Chavez v. Barr, whether the two-step process is sufficient to bar the accrual of presence under the stop-time rule, or whether a "defective" NTA that does not provide the time and date of the initial master calendar hearing can never trigger the stop-time rule.
On Monday, the Supreme Court agreed to review whether the service of a notice to appear (NTA), followed by a subsequent notice of the time and date of hearing, is sufficient to stop the accrual of presence for purposes of cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA) (42B cancellation). Its decision could have significant ramifications, and favor form (in this case, the Form I-862, captioned "Notice to Appear") over substance.
By way of background, while section 240 of the INA contains the rules for immigration judges (IJs) to follow in holding hearings and making rulings in removal proceedings, section 239 of the INA sets the standards for the government to follow in initiating those proceedings.
By regulation, removal proceedings commence, and jurisdiction over those proceedings vests with the IJ, when the Department of Homeland Security (DHS) files a "charging document" (by practice, the Form I-862) with the immigration court. Section 239(a) of the INA is captioned "Notice to Appear", and paragraph (1) therein contains the information that must be provided to the alien in such notice, including the allegations and the charges, the alien's right to counsel, and most pertinently, "[t]he time and place at which the proceedings will be held".
Notably, that provision does not state that what it describes as a "notice to appear" be prepared or served by DHS, the Department of Justice (DOJ), or any other identified entity.
The problem is that the NTA Form I-862 (which again, is issued by DHS) does not always contain all of the elements that are set forth in section 239(a)(1) of the INA, and in particular often omits the time, date, and/or place of the hearing. Why?
Because by regulation, the immigration court (which is within DOJ) is responsible for scheduling hearings. For that reason, the regulations provide that the NTA must contain "the time, place and date of the initial removal hearing" (known as the "initial master calendar"), but only "where practicable". After that hearing (and often in scheduling that hearing), the immigration court serves the hearing notice.
At issue in Niz-Chavez v. Barr, is the petitioner's eligibility for 42B cancellation. To be eligible for that relief, an alien who is not a lawful permanent resident (LPR) must establish that he or she has been physically present in this country for at least 10 years, has been a person of good moral character during that period, has not been convicted of specified criminal offenses, and that removal of the alien will result in "exceptional and extremely unusual hardship" to a qualifying relative who is a U.S. citizen or LPR.
The "stop-time" rule is a provision in section 240A(d) of the INA that, among other things, ends a 42B applicant's period of continued presence for purposes of 42B cancellation "when that alien is served a notice to appear under section 239(a)" of the INA.
More specifically, Niz-Chavez is asking the Court to determine whether the DHS's service of a Form I-862 NTA that did not contain the time and place of his hearing (which, as noted, is required under section 239(a)(1) of the INA), coupled with the immigration court's subsequent service of a hearing notice that provided that information before he accrued 10 years of presence in this country, was sufficient to trigger the "stop-time" rule barring him from 42B cancellation.
Why is there a "stop-time rule"? Because respondents for suspension of deportation under then-section 244 of the INA (the precursor to 42B cancellation, which generally required seven years of physical presence and a showing of simply extreme hardship to the alien or to a qualifying relative) would delay their then-deportation proceedings to accrue the necessary period of presence, by filing a non-meritorious asylum application or requesting numerous continuances, for example.
In the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Congress tightened the standards for such relief, and to address the issue of such delays added the stop-time rule, when it replaced suspension of deportation with 42B cancellation.
If Niz-Chavez's case sounds familiar, it is, because the Supreme Court previously addressed similar issues two years ago in Pereira v. Sessions. There, DHS issued an NTA approximately six years after the alien's entry into the United States that did not specify the time and date of the hearing. DHS did not file that NTA with the immigration court until more than a year later, and the court's attempt to serve him a hearing notice was frustrated by the fact that it was sent to his street address (from which he had moved) rather than his post office box (which he had provided to DHS).
He was ordered removed in absentia when he failed to appear for those proceedings, and remained for another six years, until he was again apprehended by DHS. He moved to reopen (which was granted), and applied for 42B cancellation. That application was denied under the stop-time rule based on the service of the initial NTA. The BIA affirmed that decision, and the Court of Appeals for the First Circuit denied his petition for review.
The Supreme Court held that a notice to appear that does not specify the time and place for the hearing does not trigger the stop-time rule, reversing the First Circuit and remanding the case. Notably there, however, the hearing notice that contained the information that was omitted from the NTA was not served on the alien until after he had accrued the 10 years of presence required for 42B cancellation.
The Supreme Court did not resolve the issue of whether the subsequent hearing notice could cure the defects in the NTA to trigger the stop-time rule, at least not directly. That is the issue in Niz-Chavez.
It has been a busy two years, for reasons that I had foretold in my post on Pereira, "SCOTUS Sets Up Potential Immigration Train Wreck". As the Court in Pereira noted, almost 100 percent of the NTAs issued over the prior three years had omitted the time and date of the proceedings. This meant that, even limited to the facts of that case, an untold number of aliens who had previously been barred under the stop time rule were newly eligible to apply for 42B cancellation.
"A much larger issue", I then noted, "would be if Pereira were applied to all cases involving NTAs that do not include the time and place of the hearing." Remember, it is the filing of the NTA that vests jurisdiction over the removal proceedings with the IJ and commences proceedings. Given this, I explained:
If what the Supreme Court describes as a "defective" NTA is insufficient to vest jurisdiction over a removal case with the immigration court, an argument could be made that any case involving such a defective NTA (which could number in the tens to hundreds of thousands) must be terminated. Taking this one step further, any case in which a final order of removal involving such an NTA has been issued would be amenable to reopening.
The Board of Immigration Appeals (BIA) addressed this issue in Matter of Bermudez-Cota, concluding that a "two-step process", by which the information required under section 239(a) of the INA is provided to the alien via the NTA from DHS and a subsequent hearing notice from the immigration court, vests that court with jurisdiction over removal proceedings and satisfies the requirements of that provision in the INA.
In reaching this conclusion, the BIA noted that the Supreme Court in Pereira had stated that "the issue before it was 'narrow' and that the 'dispositive question' was whether" an NTA "that does not specify the time and place at which proceedings will be held, as required by section 239(a)(1)(G)(i), triggers the 'stop-time' rule for purposes of" 42B cancellation. "Had the Court intended to issue a holding as expansive as the one advanced by" Bermudez-Cota, the BIA held, "presumably it would not have specifically referred to the question before it as being 'narrow'", nor would it have remanded Pereira's case "for 'further proceedings'" — because if the NTA alone was deficient, the Court would have lacked jurisdiction.
The Ninth Circuit deferred to BIA's reasoning in Matter of Bermudez-Cota on the jurisdiction of the immigration court under the two-step process in Karingithi v. Whitaker, as did the Sixth Circuit in Hernandez-Perez v. Whitaker and the Second Circuit in Banegas Gomez v. Barr.
In Matter of Mendoza-Hernandez, the BIA held that a deficient NTA can be "perfected" by the subsequent issuance of a notice of hearing that specifies the time and place of the initial master calendar hearing, for purposes of barring 42B cancellation under the stop-time rule. In other words, it held that a "two-step process", where a notice of hearing specifying the time and the date of the hearing otherwise omitted from the NTA is served on the alien within the 10-year period of required presence, is sufficient to bar a 42B cancellation application.
The Ninth Circuit subsequently rejected the BIA's reasoning in Matter of Mendoza-Hernandez in a case involving cancellation of removal under section 240A(a) of the INA (42A cancellation). Specifically, the circuit court held in Lopez v. Barr that "a Notice to Appear that is defective under Pereira cannot be cured by a subsequent Notice of Hearing."
That panel decision was accompanied by a vigorous dissent, in which Judge Consuelo Callahan stated:
I do not read Pereira as holding that the notice of the time and place must be provided in a single document. Rather, I read Pereira as not prohibiting the Government from supplementing a deficient notice to appear by subsequently providing notice of the time and place of the removal proceedings, with the consequence that the stop-time rule is triggered upon receipt of the supplemental notice.
Similarly, in Ortiz-Santiago v. Barr, the Seventh Circuit held that the two-step procedure was not compatible with section 239(a) of the INA, but denied the alien's petition for review, finding that the defect did not deprive the immigration court of jurisdiction.
Rather, it found that the statutory provision was a "claim-processing rule" like a filing deadline, that can be waived by an aggrieved party if it is not raised in a timely manner. There, the NTA had been served on the alien more than 10 years after his illegal entry, but his application for 42B cancellation had been denied because he failed to show hardship to his LPR stepfather. The Seventh Circuit did not cite the BIA's decision in Matter of Mendoza-Hernandez.
Likewise, in Perez-Sanchez v. U.S. Att'y Gen., which involved an asylum and statutory withholding of removal claim, the Eleventh Circuit held that a deficient NTA is not cured by the subsequent service of a notice of hearing, rejecting the BIA's analysis in Matter of Bermudez-Cota. Nonetheless, the circuit court held that the immigration court and the BIA still had jurisdiction over the matter because neither section 239(a) of the INA nor its implementing regulation "speak to jurisdiction", but rather the regulation "sets out a claim-processing rule".
On the other hand, the Fifth Circuit held in Pierre-Paul v. Barr (a case involving asylum, statutory withholding of removal, and 42A cancellation) that an NTA that does not meet the time and date requirement in section 239(a) of the INA is not defective (noting that Pereira was focused on the stop-time rule), but that even if it were, that defect is cured by the subsequent filing of a notice of hearing, finding: "The two-step process comports with relevant statutory language." Notably, it held that "the two-step process also furthers 'Congress' aim' by ensuring that aliens receive notice of the time and place of the proceedings."
The Sixth Circuit reached the same conclusion as the Fifth Circuit, in the 42B cancellation context, in Garcia-Romo v. Barr. In that case, the NTA lacked the time and date information, but the court sent a hearing notice shortly thereafter providing that information. The Sixth Circuit held that "written communications to a noncitizen in multiple components or installments may collectively provide all the information necessary to constitute 'a notice to appear' under" the stop-time rule.
Significantly, the court held: "Nothing in Pereira majority's reasoning suggests that the government may not supplement the first incomplete communication with an additional communication so that the noncitizen receives all the required information in" section 239 of the INA. Equally significant is the fact that the Sixth Circuit directly rejected the Ninth Circuit's reasoning in Lopez v. Barr, and adopted the BIA's interpretation of the statute in Matter of Mendoza-Hernandez.
All of this was inevitable, and sadly unavoidable, after the Supreme Court's decision in Pereira. As I explained recently: "Federal courts cannot issue advisory opinions because of the Constitution's case-or-controversy requirement, meaning that federal judges cannot rule on questions not before the court." Lawyers take their cases as they walk in the door, and courts take them as they are litigated by the parties.
That decision left open a lot more questions than it answered, however, including whether a so-called "defective" NTA is rendered so defective that adjudicators from immigration judges to Supreme Court justices lack jurisdiction over subsequent removal proceedings; whether such defects could be cured by hearing notices in a two-step process; and if they could be so cured, would they still trigger the stop-time rule for 42A and 42B cancellation?
This time around, the Court should focus on first things first:
- Section 239(a)(1) of the INA does not specify who shall give the written notice of the information required therein.
- Although that provision refers to "a 'notice to appear'", and although there is a government document (Form I-862) captioned "Notice to Appear", there is nothing to suggest that the information required must be conveyed in one document or several (as the Sixth Circuit noted, the submission of chapters one at a time to an editor does not prevent the sum of all from being considered "a book").
- Congress created the stop-time rule to prevent delays by respondents seeking to draw out their cases to accumulate sufficient presence to become eligible for suspension of deportation. Congressional intent should be a strong consideration in interpreting the statutes it drafts that courts should not frustrate through pinched interpretations.
- The immigration court controls its docket, and given the millions of aliens illegally present in the United States, it may not always, often, or ever be possible for DHS to serve an alien with an NTA that contains the time and date of the initial master calendar hearing.
Note that all of this relates to an alien's ability to apply for 42B cancellation — not to meet the stringent standards Congress imposed for that relief. Rejecting the two-step process would render thousands, tens of thousands, or hundreds of thousands eligible to apply for that relief, and to remain until the backlogged immigration courts can get to those cases. Even if those aliens are ultimately denied (as most will be — the relief is capped at 4,000 aliens per fiscal year under section 240A(e)(1) of the INA), they will still be able to remain in the United States indefinitely, and will likely never be removed. That is the exact opposite of what Congress intended when it created the stop-time rule.
The INA should not be a game of "Mother May I" or "Simon Says", where process is favored over results — or where Form I-862 is crated, boxed, and frozen in place when served, and its blemishes and omissions favored over substance.