November 23, 2020
Hon. Robert Vinikoor (Ret.)
On November 9th, 2020 the U.S. Supreme Court heard oral argument in Niz-Chavez v. Barr, a case that centers on the “stop-time rule.” The stop-time rule limits access to cancellation of removal, a form of relief for permanent residence status for foreign nationals who find themselves in removal proceedings.
Under Section 240A(b) of the Immigration and Nationality Act (INA), a foreign national under 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 U.S. citizen or permanent residence spouse, parent or child of the applicant would experience exceptional or extremely unusual hardships if the applicant had to depart the United States.
The issue before the Supreme Court is when does the 10 years continuous physical presence period end for purposes of eligibility. 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. The Pereira decision left open the question now raised in Niz-Chavez whether the government’s service of a notice via multiple documents, specifically, an NTA without date and time information, followed by a hearing notice with the time and date, 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.
Attorneys at the firm of Minsky, McCormick and Hallagan, P.C. would be happy to speak to anyone who believes that their case may be affected by this possible change in law. Please contact us at 312-427-6163 to schedule an appointment.