Legal advice on Cancellation of removal in deportation

You Have The Right to an Attorney, But No Right to Be Assigned a Free Attorney Although some jurisdictions provide individuals with a free immigration attorney to assist you, most do not and are not required to do so. You always have a right to hire an attorney, but, generally, you will have to do so at your own cost or find a free immigration attorney through a nonprofit organization. You Generally Will Have At Least TWO Hearings: Master Hearing *and* Individual Hearing Generally, at your initial MASTER HEARING, you will answer the Government charges that seek to remove you from the US and ask the Judge for immigration relief. Although you may have more than one MASTER HEARING, you eventually will have your last hearing called an INDIVIDUAL HEARING (sometimes also referred to as a MERIT HEARING). An INDIVIDUAL HEARING is the opportunity for you to have your "day in court" where you provide testimony and evidence in support of your request(s) for immigration relief. Most INDIVIDUAL HEARINGS end with the Judge issuing his or her Decision denying or granting your immigration relief. Immigration Court Proceedings Are Generally Backlogged and So Take a Long Time Generally, unless detained, immigration court proceedings take at least several years. There are many new immigration judges being hired across the country to address the long delays, and, so, in some cases, the processing times between your first MASTER HEARING(s) and your eventual INDIVIDUAL HEARING may begin to be a year or less. Generally, however, most individuals are going to be in immigration proceedings for about two years or longer (and, in some cases, much, much longer). Everyone's Case is Different and Controlled By Different Factor(s) Many cases may seem similar but are in fact different based upon one or several factors. Different judges also make different decisions even when addressing similar cases. And, so, it is impossible to predict how one's immigration court case will conclude. The best you can hope for is to you put forth the strongest, best supported, and most credible case based upon the totality of all circumstances. You Can Appeal Any Negative Decision to the Board of Immigration Appeals (the "BIA") Hopefully, your case is successful. But, if not, you can appeal your decision to the BIA and it will determine if your Judge made any mistake(s). It is very important that the BIA receive your Notice of Appeal and any related materials in a timely fashion (generally, within 30 days of you receiving your decision denying your immigration court relief). Otherwise, you lose your right to appeal any negative decision that orders you to be removed from the US.

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.