ON April 29, 2021, the U.S. Supreme Court ruled that a Notice to Appear (NTA) is defective unless it includes, in a single notice, all the required information, including:
• The charging allegations (why the person is subject to deportation/removal); and
• The date, time, and location of the court hearing.
If the initial NTA does not include the date, time, and place of the hearing, it could provide relief for certain people in removal/deportation, especially those who were applying for cancellation of removal.
By way of background, nonpermanent resident aliens ordered removed from the U.S. could be eligible for certain discretionary relief, including cancellation of removal, which requires, among other things, that the person had been in the U.S. for at least 10 continuous years. However, under the “stop time rule,” the period of continuous presence “shall be deemed to end… when the alien is served with a notice to appear” in removal proceedings. Therefore, if a person had been in the U.S. for nine years and 11 months, and was served with an NTA, it would stop the running of their continuous presence, and they would not have accumulated at least 10 years of continuous presence in the US to be eligible for cancellation of removal.
A Notice to Appear (NTA) is defined as written notice specifying certain required information, such as the charges against the alien, as well as the time and place at which the removal proceedings will be held. If an NTA omits any of the statutorily required information, it does not trigger the “stop time rule,” and the alien’s “continuous presence” in the U.S. continues accumulating.
In the case before the US Supreme Court, the government sent the person an NTA containing only the charges against him. Two months later, it sent a second document, providing him with the time and place of the hearing. The government contended that by taking these two separate documents together, all the required information for an NTA was provided, and the alien’s continuous presence stopped when he was served with the second document.
The US Supreme Court disagreed. It stated that for an NTA to be sufficient to trigger the stop time rule (or stop the running of an alien’s continuous presence in the U.S.), the government must serve “a notice.” According to the Supreme Court, “Congress’s decision to use the indefinite article “a” suggests it envisions “a” single notice” provided at one time, rather than a series of notices providing different information, that would collectively provide all of the information. In other words, to be sufficient or effective, the government has to serve a single NTA containing ALL the required information, including the date and time of the hearing.
I know there have been many cases where the government served an NTA containing only the charging allegations against the alien, and, where it specified the date and time of the hearing, it stated “to be determined,” rather than giving a specific date and time. The government argues it needed to do this because, at the time of issuing an initial NTA, they did not know the availability of their witnesses or had access to the court calendar. The Supreme Court stated the initial NTA must contain all the required information, including the date and time of the hearing. (The Court did note that the government could have served a single notice containing all the required information, including the date and time of the hearing, and then later amend or change the time and place of the hearing if circumstances required it, but the government did not follow that practice in this case.)
If you have been placed in removal proceedings, but your initial NTA was defective, you may want to consult with an attorney who can evaluate your situation, and determine if you could now be eligible for certain immigration relief or possibly, because of a defective notice, have the case terminated. While there’s no guarantees, an attorney could help evaluate your situation.
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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.
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Michael J. Gurfinkel has been an attorney for over 40 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different, and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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