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Pereira v. Sessions, 585 U.S. _____ (2018) was decided by the Supreme Court on June 21, 2018.  In it, the Court held that a “putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under § 1229(a),’ and so does not trigger the stop-time rule.”  The stop-time rule is a statutory rule for a form of relief called Cancellation of Removal.  Cancellation of Removal requires the non-citizen has been physically present in the United States for a certain period of time, but that the time stops being accumulated upon the proper service of a notice to appear promulgated under § 1229(a).

Why Does This Matter?

This decision matters for a few reasons.  First of all, it is important to understand that immigration proceedings begin with the proper service of a notice to appear.  Second, it is important to understand that the vast majority of “notice[s] to appear” that have been issued by the government in the last 15 years have not had the time or date of the proceedings.  These “notice[s] to appear” therefore do not meet the Pereira standard for a “notice to appear”, certainly as it applies to Cancellation of Removal.  This means the clock did not stop, and people who thought the timer on their cancellation of removal had stopped may find that they now have the time accumulated necessary to be eligible to apply for cancellation of removal.

Finally, the big question before us is whether this decision can be interpreted on a broader scale to include ALL cases in the immigration courts that do not have the time and place of the proceedings on the notice to appear.  Consider that there are approximately 700,000 pending cases in the immigration courts at this time.  The government believes that over 95% of the notices to appear in these cases do not have the time or date of the initial hearing.  Consider further that there are hundreds of thousands of cases that may have been denied where the court didn’t have jurisdiction over the case in the first place; this could allow hundreds of thousands of other people to reopen their cases for relitigation.

Judges all around the United States are taking differing stances on this subject.  Some judges are terminating these cases immediately, placing the burden on the government to appeal.  Others are taking motions to terminate under advisement.  And finally, some are simply denying.  Most of these cases will be appealed and likely will be brought to the circuit courts and eventually back to the Supreme Court. The question will be how broad Pereira can and should be read.