Did your NOTICE TO APPEAR have a date time and place?

By Jessica Suotmaa 2

Since the Pereira v. Sessions decision in June 2018, immigration attorneys have been flooding the courts with variations of motions to reopen and terminate, with the most important being the Cancellation of Removal.  In this post, we’ll review the importance of this decision and how it may affect you.

What is a “Notice to Appear” (NTA)?

A notice of appear is a charging document the government sends or hands to you to inform you that you have been determined “removable” (a.k.a “deportable”).  An NTA will include the following:

  • biographical information
  • nature of proceedings
  • factual allegations
  • charge(s) of removability
  • date and place of proceedings (immigration court hearing)

Why is the Pereira v. Sessions decision significant?

The most significant takeaway from the Pereira v. Sessions decision is the Supreme Court’s decision that the NTA for Pereira was invalid because it failed to include an exact time and place for proceedings.

In the past, many NTAs were issued by other agencies (not the Department of Justice) so they would put “To be decided”, “TBD”, “To be set”, etc. on the NTA and let the immigration court send out a followup “Notice of Hearing” with an exact date, time, and location.  The Supreme Court ruled that a literal interpretation of the law means an NTA without a date, time, and location for proceedings is  invalid. An invalid NTA means that the immigration court has no jurisdiction, or power, over the alien.

In Pereira’s case, the decision means that his NTA was invalid so the immigration court did not have jurisdiction over his case. Since the department of justice (DOJ) did not have jurisdiction over Pereira, he was not technically in removal proceedings. Or at the very least, he should not have been in removal proceedings.

Pereira had been in the US approximately six years before receiving his NTA, which put a stop to his “time in the US” as time in removal proceedings does not count.  After his NTA was ruled invalid, Pereira had accrued enough time (ten years) to qualify for Cancellation of Removal.

What if my NTA didn’t have a time and place but I haven’t been here long enough?

It’s important for anyone with a similar NTA to be aware of the possible consequences. Just because the government served you an invalid NTA at some point, doesn’t mean you will suddenly be able to “get your papers” or live under the radar.  In fact, most likely they will serve you a new NTA with the date, time and location of your next hearing. If that happens, you will still be in removal proceedings.

As we discussed above, in Pereira’s case, he had prepared to ask for relief in the form of Cancellation of Removal.  If you are married to a U.S. citizen, or have a qualifying US citizen family member to petition for you, then you may be able to request relief in the form of allowing you to adjust your status.

A qualified immigration lawyer could analyze your situation and give you a clear idea of what your options may be.  Contact one of the qualified immigration attorneys at Lum Law Group today for a free phone consultation!