Lopez v. Barr, a May 22, 2019, decision by the U.S. Court of Appeals for the 9th Circuit, holds out hope for thousands of persons who are in Removal proceedings that they can apply for cancellation of removal.

Lopez v. Barr relies on the Pereira v. Sessions, a 2018 U.S. Supreme Court decision which holds that a Notice to Appear (NTA) in Removal Proceedings which does not state the date and time of the hearing before an Immigration Judge as required by federal law is defective and does not trigger the stop-time rule.

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Cancellation of Removal and the Stop-Time Rule

Persons whose cases are in the Immigration Court may be able to apply for cancellation of removal if either (1) they have resided continuously in the U.S. for 7 years, 5 years as a green card holder, or (2) if they are not a green card holder, they have been continuously physically present in the U.S. for 10 years.

Once removal proceedings are instituted by the service of an NTA, the stop-time rule provides these periods of time required to apply for cancellation of removal come to a halt. For example, if an undocumented person is NTA’d after they had been in the U.S. for 9 years and 11 months, they can never reach the 10 years required to apply for cancellation of removal even if their removal proceedings drag on for years.

Pereira v. Sessions and the Stop-Time Rule

In Pereira v. Sessions, the U.S. Supreme Court ruled that because Mr. Pereira was served with an NTA which did not state the date and time of his hearing before the Judge as required by law, the issuance of a defective NTA did not trigger the stop-time rule. Hence, when he had 10 years of continuous physical presence in the U.S. and was the father of U.S. citizen children, he could apply for cancellation of removal.

This worried the U.S. Department of Justice because the government had neglected to state the date and time of the hearing on over 90% of NTAs during the past 20 years, in violation of federal law. With a backlog of over 800,000 cases in the Immigration Cases, this error had the potential to bring the government’s deportation machine to a grinding halt.

So, less than 3 months after the ruling in Pereira, the Board of Immigration Appeals (BIA), a part of the U.S. Department of Justice, issued a ruling in Matter of Bermudez-Cota stating that Pereira v. Sessions should be interpreted narrowly. It should apply only to people like Mr. Pereira who were subject to the stop-time rule.

Several U.S. Courts of Appeals have since deferred to the BIA’s interpretation of Pereira.

Can a Notice of Hearing “Perfect” a Defective NTA?

On May 1, 2019, the BIA issued a ruling in Matter of Mendoza-Hernandez which could all but negate the effect of the Supreme Court’s holding in Pereira. The majority of the Board held that even if the NTA was defective, a subsequent Notice of Hearing which stated the date and time of the hearing “perfected” the NTA and triggered the stop-time rule.

However, this time, 6 members of the BIA issued a strong dissent which stated as follows:

“the plain language of the Act leaves no room for the majority’s conclusion that a subsequent notice of hearing can cure a notice to appear that fails to specify the time and place of the initial removal hearing.”

Lopez v. Barr – A Defective NTA Cannot be Perfected

Just 3 weeks later, the U.S. Court of Appeals for the 9th Circuit ruled in Lopez v. Barr that the law provides that the NTA must contain the date and time of the hearing, otherwise it is defective and, therefore, does not trigger the stop-time rule. A subsequent Notice of Hearing cannot perfect a defective NTA. The government has the authority to issue a valid NTA, and only a valid NTA can invoke the stop-time rule.

The majority decision noted that the BIA reached a conclusion in Matter of Mendoza-Hernandez where, over a vigorous dissent, a closely divided BIA held that a Notice of Hearing that contains time-and-place information perfects a deficient Notice to Appear and triggers the stop-time rule. However, the 9th Circuit declined to defer to that conclusion because: (1) the BIA acknowledged that Pereira could be read to reach a different result, and the courts owe no deference to agency interpretations of Supreme Court opinions; (2) the BIA ignored the plain text of the statute; and (3) the BIA relied on cases that cannot be reconciled with Pereira.

What You Should Do Now

If you are currently under removal proceedings, take a close look at your Notice to Appear (NTA). If it fails to state the date and time of your hearing, it is clearly defective.

If you have been in the U.S. for over 10 years, you may be eligible to apply for cancellation of removal. If you have a green card, you only need 7 years in the U.S. and 5 years with a green card.

Remember, a defective NTA does not trigger the stop-time rule. So if you were placed under removal proceedings before you accumulated 10 years of physical presence in the U.S. and now you have been in the U.S. for 10 years, or if you will soon have 10 years presence in the U.S., speak with an immigration attorney to determine whether this is the right time to apply for cancellation of removal or if the Immigration Judge has already ruled in your case, whether you are eligible to file a Motion to Reopen or Reconsider your case.

The same may be true if you have already been ordered deported.

Remember, just as you may be deported if you fail to follow the law, the government also has an obligation to follow the law.

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