05 May U.S. Supreme Court gives a second chance for those in deportation, on appeal or already deported
By Atty. Chris Caday Lozano
The U.S. Supreme Court issued a decision on April 29, 2021, in Niz-Chavez v. Garland that could save thousands of immigrants from deportation. The Court held that the charging document for a removal proceeding, the Notice to Appear (NTA), is invalid if it does not specify the date and time of the hearing.
Niz-Chavez Judge Gorsuch’s majority opinion, which was joined by Justices Clarence Thomas, Stephen Breyer, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett, held that “a” Notice to Appear must contain the date and time of the hearing in order to confer jurisdiction of the matter to the Immigration Court. A subsequent notice to the immigrant does not cure this defect.
The majority opinion goes on to state that “if men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.”
What is the “Stop-Time” Rule?
The immigration law allows certain persons who have resided in the U.S. for 10 years to apply for a green card from an Immigration Judge under a procedure known as Cancellation of Removal. Mr. Niz-Chavez, like Mr. Pereira before him, had lived in the United States for less than 10 years when he was served with an NTA.
The service of a valid NTA invokes the “stop-time” rule. This rule prevents a person who has been in the U.S. for less than 10 years when the NTA is served on him to accumulate more time in the U.S. in order to apply for Cancellation of Removal.
However, the NTAs served on Mr. Niz-Chavez and Mr. Pereira were invalid because they failed to state the date and time of their hearings in Immigration Court. The Supreme Court ruled that service of an invalid NTA does not trigger the stop-time rule.
As they have now lived in the U.S. for over 10 years, both of their cases were remanded to an Immigration Judge to allow Mr. Niz-Chavez and Mr. Pereira to apply for Cancellation of Removal.
What is the effect of the Supreme Court decision on those in removal proceedings, or on appeal with the BIA or in Federal Courts and those who were already deported?
The persons who could potentially benefit from the Supreme Court’s decisions are not just those who are eligible for Cancellation of Removal. The following persons may also benefit:
It will also benefit persons who have been ordered deported, granted voluntary departure or who have been granted relief, like withholding of removal, which does not lead to permanent resident status. They can now reopen their case or seek a termination of the removal proceedings and file their application for green card with USCIS assuming they have a petitioner who is a U.S. citizen or green card holder.
If you were placed in removal proceedings, and your NTA did not specify the date and time of your initial hearing before an Immigration Judge, you may be able to submit a motion to terminate or reopen the proceedings.
It is very important that you should consult with a knowledgeable immigration attorney to see whether it is in your interest to do so.
If you are already deported and you qualify under this Supreme Court ruling, you may be able to void your deportation and file an adjustment of status if you have a spouse or child over 21 years of age who is a U.S. citizen.
Note: This is not a legal advice and this article is for information purposes only. You should consult with an immigration attorney about the specifics of your case.
If you have immigration problems the Law Offices of Crispin C. Lozano can help you find a solution before your problem gets worse which could lead to deportation and family separation.
Chris Caday Lozano, Esq. is an active member of the State Bar of California, the American Immigration Lawyers Association and San Francisco Trial Lawyers. He practices immigration law, bankruptcy and income tax preparation since June 1999. His contact phone is 1-877-456-9266, email: info@CCLlaw.net Website: www.crispinlozanolaw.com/