The U.S. Supreme Court’s recent decision in Niz-Chavez could mean new hope for thousands of long-term residents who are out of status.

The U.S. Supreme Court recently issued a decision in Niz-Chavez v. Garland that could help thousands of people who have been in the U.S. for over a decade and who do not have lawful immigration status. The exact people who are helped by this decision are people who are or were in immigration court removal proceedings and are eligible for a form of relief called Cancellation of Removal for Certain Non-Permanent Residents. This decision can help people who have been in the U.S. for more than a decade, have good moral character and who have a close relative who has lawful immigration status and who will suffer greatly if they are deported. There are other requirements for Cancellation of Removal which are outlined below.

WHO WILL BE HELPED BY THIS DECISION?

If you are or were in immigration court removal proceedings and you would be eligible for Cancellation of Removal, but immigration officers sent you a document called a Notice to Appear less than 10 years after you entered the U.S., this decision could be a game changer for your case. Why? Because in 2018, the Supreme Court said in a decision called Pereira v. Sessions that if the Notice to Appear you received does not have the time, date and location of your first Court hearing, then it is legally deficient. Why is that important? Because of something called the stop time rule. The stop time rule says that if you are otherwise eligible for Cancellation of Removal, but you are sent an NTA before you have been then the U.S. for the required 10 years, then you are not eligible for Cancellation of Removal. That is because receiving an NTA stops the clock on your 10 years of physical presence in the U.S., which is required to qualify for Cancellation.

Even if you receive the NTA nine years, eleven months and 29 days after you entered the U.S. you could be forever ineligible for Cancellation of Removal because of the stop time rule.  This is the law and it can have disastrous consequences for long-term residents of the country who do not have lawful status. Even if you have parents and a spouse and children who were born in the U.S. and you have never been arrested and you are an amazing person and your entire family suffers from horrible medical conditions that cannot be treated in your home country, you cannot even have a hearing in immigration court on Cancellation of Removal if you were served your NTA before you were in the U.S. for 10 years.

CAN THE NIZ-CHAVEZ DECISION HELP MY CASE?

Before you read on, lets discuss what types of cases the Niz-Chavez decision can help. This decision can help people who have no deportable criminal convictions, have good moral character, have a spouse/parent/child who has lawful status and will suffer tremendous hardship if you are deported and:

  • Are currently in immigration court removal proceedings with a Notice to Appear that does not have the time, date and location of your first hearing, and you received the NTA before you were in the U.S. for 10 years, but you have now been here for more than 10 years; or
  • Were in immigration court removal proceedings, but were ordered removed and the case is on appeal, and your Notice to Appear does not have the time, date and location of your first hearing, you received the NTA before you were in the U.S. for 10 years, but you have now been in the country for more than 10 years; or
  • Were in immigration court removal proceedings, but have a final order of removal and your Notice to Appear does not have the time, date and location of your first hearing, and you received the NTA before you were in the U.S. for 10 years, but you have now been in the country for more than 10 years; or
  • You previously filed a Motion to Reopen your removal proceedings under Pereira v. Sessions, but the Board of Immigration Appeals or Immigration Court denied your motion because you received your hearing notice before you had 10 years in the United States.

WHO QUALIFIES FOR CANCELLATION OF REMOVAL?

The requirements for this form of relief are found in section 240A(b) of the Immigration and Nationality Act and you apply for this type of relief on Form EOIR-42B. Cancellation of Removal allows certain people with no lawful immigration status to become lawful permanent residents and obtain their “green cards.” In order to qualify for Cancellation, the person MUST be in immigration court removal proceedings, they must have been in the United States for the last 10 years, they must not have been convicted of almost any deportable crime, they must be a person of good moral character and they must prove that their U.S. citizen or lawful permanent resident spouse, parent or child (under 21) will suffer exceptional or extremely unusual hardship if they are deported.

HOW DID PEREIRA V. SESSIONS HELP?

In 2018, the U.S. Supreme Court stepped in and said an NTA that is legally deficient, that is, one that does not have your time, date or location of your first immigration court hearing, cannot stop your 10 years of physical presence in the U.S. from counting. That decision was great for many people who had legally deficient NTAs and who were eligible for Cancellation. However, through a series of decisions, the Board of Immigration Appeals tried to stop people from being eligible for Cancellation, even if their NTA was missing that important scheduling information. The Board said that even if the NTA was missing that information, as long as the Court sent you a hearing notice with the time, date and location of your hearing, your 10 year clock for Cancellation would stop and if you did not have 10 years already, you were no longer eligible for Cancellation.

Those decisions made thousands of people who were suddenly eligible for Cancellation after the Supreme Court decision in Pereira again ineligible.  Many were ordered removed and many were actually deported. Then the Supreme Court came back this year in the Niz-Chavez decision and opened the door again for thousands to apply for Cancellation. The Supreme Court said that the notice of hearing sent by the Court does not stop the clock on the 10 year requirement if the NTA was deficient to begin with. That is wonderful news for people who are now again eligible for Cancellation of Removal.

If you fit into any of the categories listed above or you simply want to know if the Niz-Chavez decision can help you, call an experienced immigration attorney right away. Time is not on your side, waiting to act could cost you your chance at lawful permanent residence.

John Gihon,

Florida Bar Board Certified Immigration & Nationality Law Attorney

Chapter Chair, AILA Central Florida Chapter

Shorstein, Lasnetski & Gihon

Orlando Office: 407-228-2019

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