On Thursday, April 29, 2021, the United States Supreme Court issued its decision in on Niz-Chavez v. Barr, in which it found that Notice to Appear (NTA) that does not include the date and time of the first hearing in Removal Proceedings is defective and does not trigger the “Stop-Time-Rule” for purposes of calculating the amount of time an individual has been in the United States, and that a subsequent Notice which includes that information neither corrects the defective NTA, nor triggers the Stop-Time-Rule.
Under Section 240A(b) of the Immigration and Nationality Act (INA), a foreign national unlawfully present in the United States and in Removal Proceedings can apply for Cancellation of Removal by showing:
1. 10 years continuous physical presence;
2. 10 years good moral character; and
3. that the applicant’s U.S. Citizen and/or Permanent Residence spouse, parent and/or child would experience exceptional or extremely unusual hardships if the applicant had to depart the United States.
Generally, the accrual of time toward the ten-year physical presence requirement of Cancellation of Removal stops upon service of the NTA upon the alien. On November 9th, 2020 the U.S. Supreme Court heard oral argument in Niz-Chavez v. Barr regarding whether or not the Stop-Time-Rule is triggered, thereby halting the accrual of qualifying time upon service of an NTA that does not include the date and time of the hearing, and if service of a subsequent notice, which includes the missing information, corrects the deficiency and triggers the Stop-Time-Rule then.
The INA provides at Section 240A(d) that the continuous physical presence period “shall be deemed to end …when the alien is served a Notice to Appear (NTA) …..” In Pereira v. Sessions, a case decided by the Supreme Court in 2018, the court in an 8-1 decision ruled that an NTA that was lacking time and date information did not trigger the stop-time rule. However, the Pereira decision left open the question of whether the government’s service of a deficient NTA and subsequent notices which contain the information missing from the NTA triggers the stop-time rule.
The outcome of this case could affect thousands of pending cases before the immigration court and could provide foreign nationals under orders of removal an opportunity to seek reopening of their cases to apply for cancellation of removal where they were served with defective NTA.
If you, or someone you know, needs help through the immigration process, please call Cella & Associates on our national toll-free free number 877.583.7080 and we will schedule a confidential consultation via Skype, Telephone or Zoom. In addition to English, consultations can be in Albanian, Italian, Portuguese, Russian and Spanish. Although we do hold in-person consultations when necessary in our offices in Clifton, New Jersey, Aventura, Florida and Hollywood, Florida, we discourage such consultations (due to CoVid concerns) for your safety as well as for the safety of our attorneys and staff.
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**Cella & Associates will not prosecute cases which we know, or have reason to believe, are fraudulent or frivolous.
Joseph G. Cella, Esq. is the managing founder of Cella & Associates, LLC. During his nearly 30 years of practicing Immigration Law, Mr. Cella has been published in the New Jersey Law Journal, and has authored many articles on Immigration Law. Mr. Cella has also lectured on numerous topics of immigration law for a number of organizations including the Federal Bar Association.