Published May 1, 2021

By Richard Hanus, Esq.

The U.S. Supreme Court this past week issued a major decision regarding the way foreign nationals must be notified to appear for their initial court date for removal (aka deportation) proceedings.  The decision was noteworthy in many regards, including that it bulks up the rights of immigrants fighting to remain in the U.S. and that it was penned by a notoriously conservative judge, with other conservatives on the court joining in the opinion.

A “Notice to Appear” or NTA is the charging document issued by the U.S. Department of Homeland Security’s Immigration and Customs Enforcement (ICE) notifying a foreign national of the legal basis upon which their removal from the U.S. is being sought.  By law, an NTA, among other requirements, must also contain a specific court location along with the date and time of their required appearance.  As a matter of administrative convenience though, ICE regularly issues an NTA setting forth the legal basis of the proceeding in an initial notice, and only in a later sent document, indicates the date, time and location of the first court appearance.

Per the recent SCOTUS decision, this two part notification process does not sufficiently adhere to the letter of the law, and its shortcomings have huge ramifications for those seeking the relief of “cancellation of removal” (COR)– a defense premised on an extended period of residence here and hardships to U.S. family.  Cancellation of Removal (COR) is among the most oft used defenses or avenues of relief for foreign nationals fighting their deportation.  The foreign national fighting removal could be a lawful permanent resident deemed removable due to a criminal act or other violation of law or simply a foreign national who entered without a visa or overstayed their visa status.  One of COR’s main requirements is the foreign national demonstrating a minimum number of years of residence in the U.S. – depending on whether the foreign national is a permanent resident or undocumented.

When the NTA is served on the foreign national and immigration court, it officially marks the initiation of removal proceedings.  This important event also, in most cases, marks the point at which the foreign national’s period of residence is deemed to end for purposes of cancellation of removal.  This is known as the “stop-time rule”.   But if the NTA was issued without adhering to the details of the underlying federal statute, then should the NTA really serve to stop a foreign national’s time in the U.S. for purposes of cancellation of removal eligibility?  The SCOTUS says no.  That means far more foreign nationals will become eligible for COR relief than previously allowed for under the law.  Furthermore, the courts will also likely see widespread measures being taken by foreign nationals to terminate removal proceedings altogether due to NTA deficiency.

Justice Gorsuch, writing for the majority, states “if the government finds filling out forms a chore, it has good company……The world is awash in forms, and rarely do agencies afford individuals the same latitude in completing them that the government seeks for itself today.”

The decision’s exact impact on pending cases, as well as its retroactive impact on proceedings already carried out in violation of the new SCOTUS pronouncement, will become known in the near future.  For more information about this case, see Niz-Chavez v. Garland, Case No. 19-863.

PUBLISHED May 1, 2021– “IMMIGRATION LAW FORUM” Copyright © 2021, By Law Offices of Richard Hanus, Chicago, Illinois