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Supreme Court’s in Niz-Chavez v. Garland may allow thousands more to qualify for cancellation of removal

May 17, 2021
Hon. Robert Vinikoor (Ret.)

U.S. Supreme Court’s decision in Niz-Chavez v. Garland may allow thousands of noncitizens to establish eligibility for the discretionary relief of cancellation of removal.

On April 29, 2021 the U.S. Supreme Court decided Niz-Chavez v. Garland, holding that, to constitute a Notice To Appear (“NTA”) sufficient to stop a nonpermanent resident alien’s accumulation of continuous presence in the country under the immigration statute, the notice must be a single document containing all information about an individual’s removal hearing, including the nature of the proceedings, the legal authority for the proceedings, the charges against the noncitizen, the fact that the individual  may be represented by counsel, the time and place at which the proceedings will be held and the consequences of failing to appear.

Under U.S. immigration law, a noncitizen under removal proceedings has the right to apply for cancellation of removal if they can establish:

  • 1) 10 years of continuous physical presence prior to being served with a NTA;
  • 2) 10 years of good moral character; and
  • 3) establishing exceptional or extremely unusual hardships to a permanent resident or U.S. citizen spouse, parent or child.

Thousands of noncitizens have been served with defective NTAs that did not include all the required information prior to their accumulation of the 10 years continuous physical presence necessary to apply for cancellation of removal. The Board of Immigration Appeal previously held in 2019 in MendozaHernandez, 27 I&N Dec. 520 that even with a defective NTA the “stop-time rule” and the accumulation of physical presence ended when subsequently served by the immigration court with a Notice of Hearing.  This decision has now been reversed by the Supreme Court’s decision in Niz-Chavez.

What are the consequences of the Supreme Court’s decision and how does the decision affect you?

Thousands of noncitizens could potentially benefit from the Supreme Court’s decision. Niz-Chavez will allow thousands of noncitizens whose cases are before Immigration Judges or on appeal to the Board of Immigration Appeals or the Federal Courts to apply for cancellation of removal.

It also could potentially benefit noncitizens who are under final orders of removal or who have been granted relief, which does not lead to permanent resident status.  If you were placed in removal proceedings, and your NTA did not specify the date and time of your initial hearing before the immigration court, you may be able to file a motion to reopen your proceedings.

It is important to consult with a knowledgeable immigration attorney to see whether you can qualify for a benefit under the Supreme Court’s decision. Contact the attorneys at Minsky, McCormick & Hallagan, P.C. who are available to consult with your concerning your case and advise you whether you have the potential for discretionary relief that was not previously available.

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