Supreme Court Decision Expands Eligibility for Cancellation of Removal
The U.S. Supreme Court ruled in Niz-Chavez v. Garland that the “stop-time rule” — used to calculate the 10-year continuous physical presence requirement for non-lawful permanent resident (non-LPR) cancellation of removal and the 7-year continuous residence requirement for lawful permanent resident (LPR) cancellation of removal — is only triggered when the Department of Homeland Security (DHS) serves a single Notice to Appear (NTA) that contains all of the statutorily required information, including the time and place of the immigration court hearing. 1
In a 2018 decision, Pereira v. Sessions, the Supreme Court had ruled that a putative NTA lacking information about the time or place of the hearing did not trigger the cancellation statute’s stop-time rule. In 2019, the Board of Immigration Appeals (BIA) ruled that even though under Pereira a defective NTA did not stop time, a subsequent immigration court hearing notice listing the hearing’s time and place cured the NTA’s deficiency and stopped time for cancellation purposes. The Supreme Court’s Niz-Chavez decision focused heavily on one word — “a” — and concluded that the use of “a” preceding “Notice to Appear” in the INA signified a single, statutory-compliant document. The Court rejected the government’s argument that it could fulfill its obligation to serve a proper NTA piecemeal, through multiple documents over a period of time, observing that “[t]o an ordinary reader . . . ‘a’ notice would seem to suggest just that: ‘a’ single document containing the required information, not a mishmash of pieces with some assembly required.” The Niz-Chavez decision thus invalidated the BIA’s ruling that a hearing notice following a deficient NTA stopped time. In other words, a noncitizen’s physical presence or continuous residence clock for cancellation purposes continues to run unless and until DHS serves an NTA with all of the information required by statute, including the hearing’s time and place. A hearing notice issued by the immigration court cannot stop time.
While the Niz-Chavez decision interpreted the meaning of “a” Notice to Appear for purposes of the cancellation statute’s stop-time rule, practitioners should consider how the decision’s reasoning applies to other statutory provisions tying serious consequences to DHS issuance of an NTA. These include the post-conclusion voluntary departure stop-time rule (INA § 240B(1)(A)), the rules for when an IJ can proceed in absentia against a noncitizen who fails to appear for a hearing (INA § 240(b)(5)), the ten-year bar to certain discretionary relief for failing to appear at a removal hearing (INA § 240(b)(7)), and the IJ’s authority or jurisdiction to conduct removal proceedings at all (INA § 239(a); 8 CFR § 1003.14(a)). Where it is in the client’s interests, practitioners could argue in these other contexts that the consequences triggered by DHS issuance of an NTA do not arise when the NTA lacks statutorily required information. In the wake of Niz-Chavez, practitioners should watch for legal developments impacting these arguments.
Given the Niz-Chavez decision, practitioners should review cases of clients in removal proceedings — including clients who have a final order of removal — who have now accrued the requisite physical presence or continuous residence in the United States and meet the other requirements for cancellation, to assess whether their NTA contains all of the information required by INA § 239(a)(1). If the NTA is missing required information such as the hearing’s time or place, time has not stopped — even if the immigration court subsequently issued a hearing notice supplying the missing information — and the client is eligible to apply for cancellation. Visit the Defending Vulnerable Populations program webpage for a forthcoming practice advisory on the Niz-Chavez decision.