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Damaging BIA Decision Takes Away Cancellation of Removal From Many in Deportation Proceedings

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In 2018, the United States Supreme Court opened up an avenue of relief from deportation for many non-U.S. Citizens in the landmark decision of Perreira v. Sessions, 138 S.Ct. 2105 (2018). That avenue of relief has been closed down by the Board of Immigration Appeals (BIA) in a newly released decision of Matter of Mendoza-Hernandez, Matter of Capula-Cortes, 27 I&N Dec. 520 (BIA 2019).  Here’s how the new decision will affect people in deportation proceedings:


What did the U.S. Supreme Court say in Perreira v. Sessions?


Many people believe that when a non-citizen is in the United States without lawful status, they are automatically deported.  However, there are many forms of relief that can help a person stay in the country.  Some of those forms of relief require that the person has been inside the United States for a certain amount of time.  For example, a person who does not have a greencard and has overstayed their visa or entered without authorization has to have been in the United States for 10 years to ask for “Cancellation of Removal.”  If the government files a Notice to Appear with the Court within that 10 year period, the person is not eligible to seek “Cancellation of Removal.”

A Notice to Appear is a document served on the deportable person that lists the allegations and charges and is supposed to give the person a date, time and place to appear for their deportation hearing.  Unfortunately, the government had been cutting corners for years and simply entering “To be determined” under the date, time and place entries on the notices.  Later, when the Notice to Appear was filed with the court, the immigration court would send a letter to the last known address with an actual date, time and place.

Mr. Pereira was one of those individuals who entered the United States on a visitor visa in 2000.  In May 2006, he was served a Notice to Appear at a deportation hearing. No date, time or place was entered on the Notice to Appear.  In August 2007, the government filed the Notice to Appear with the Immigration Court.  The Immigration Court then mailed Mr. Perreira a Notice of Hearing with an actual date, time and place, but they mailed it to the wrong address and it was returned.  The Immigration Judge entered a deportation order against Mr. Perreira anyway, without Mr. Perreira being present and without having been given notice of the hearing.   In 2013, Mr. Perrira reopened his deportation proceedings after he established that he never received notice of the hearing.  He sought “Cancellation of Removal” and argued that as of 2013, when he received proper notice of a hearing, he had been in the United States for 10 years.  The Immigration Judge again ordered Mr. Perreira to be deported, finding that the 2006 Notice to Appear that was sent to the wrong address served to end his physical presence and therefore he did not have 10 years physical presence in the United States.

Mr. Pereira’s case made its way to the United States Supreme Court, which held that a Notice to Appear that does not specifically list the date, time and place for the immigration hearing does not “stop time” for purposes of the person accruing the required 10 years physical presence needed to obtain “Cancellation of Removal.”


How did the Perreira decision affect people?


The Perreira decision was a huge victory for people who had been denied or who were previously ineligible to obtain Cancellation of Removal because they had been served with a Notice to Appear within 10 years of their entry into the United States.  After Perreira, people who had been issued a Notice to Appear without a specific date, time and place could file a motion to reopen their case to apply for Cancellation of Removal if an Immigration Judge had previously denied their request.   This has helped many people get a second chance after being issued a deficient Notice to Appear.


So, how does the BIA decision change things?


The BIA has now drastically limited the scope of the Perreira decision.  In Matter of Mendoza-Hernandez, Matter of Capula-Cortes, the BIA held that if a person was served with a deficient Notice to Appear, but then served with a subsequent Notice of hearing specifically listing the date, time and place, that subsequent Notice of Hearing “stops time” for purposes of determining whether the person has 10 years of physical presence.  So now, according to the BIA, the government can cure a deficient Notice to Appear by sending a Notice of Hearing.  This means that all of those people who were given hope that they may be eligible for “Cancellation of Removal” because they were served with a deficient Notice to Appear will not be eligible if they were served with a subsequent Notice of Hearing within the requisite physical presence period.


So, what now?


As of now, the BIA decision is the law of the land.  However, that decision will presumably be appealed to the Federal Circuit Court and then eventually back up the United States Supreme Court to determine whether a deficient Notice to Appear can be saved by a subsequent Notice of Hearing which serves to stop time for purposes of Cancellation of Removal’s 10 year physical presence requirement.  Stay tuned!


Jeremy12-15-17-224x300Jeremy Lasnetski is a partner at the Law Offices of Shorstein, Lasnetski, & Gihon.  The firm focuses on criminal defense, immigration and personal injury. Mr. Lasnetski focuses his practice on immigration and criminal defense.  Mr. Lasnetski is the former Jacksonville Regional Vice Chair of the American Immigration Lawyer’s Association, Central Florida Chapter and has represented clients in deportation proceedings, USCIS benefit cases, consular processing cases, and more.  He routinely gives presentations on immigration law issues to both criminal and immigration lawyers at conferences and seminars throughout the State of Florida.