Immigration Blog

April 30, 2021

New Supreme Court Ruling On How To Calculate Continuous Presence for Cancellation of Removal — e42b

Supreme Court Ruling

Many Immigrants in Removal Proceedings May Benefit from the US Supreme’s Court’s Ruling on April 29, 2021 On How to Calculate Whether An Undocumented Individual Has 10 Years of Continuous Presence To Apply For Cancellation of Removal

On April 29, 2021 the US Supreme Court ruled in Niz-Chavez v. Garland that a charging document (Notice to Appear–NTA) must have the date, time and place of the court hearing in order to Stop Time from accruing for Cancellation of Removal.

Here is an example:

Teresa was placed in Removal Proceedings (Deportation Court) after having lived in the United States for 7 years continuously. On the 7th year, she is served a Notice to Appear. If the service is correct, she will not continue to accrue ‘time’ in the USA to gain 10 years for 10 year cancellation of removal. If the Notice to Appear is deficient and it lacks the date, time and place of the hearing, then Theresa continues to accrue time in the USA for cancellation of removal. So if her last immigration court hearing is in 3 years, Teresa will accrue enough time to apply for cancellation of removal.

If the Notice to Appear is served correctly and it includes the time, date and place of the hearing, then Teresa will not be eligible for 10 year cancellation as the proper service of the Notice to Appear Stops additional time from accruing.

The US Supreme Court essentially reinforced Pereira v Sessions ruling that a deficient NTA (Notice to Appear) that lacks the date, time and place of the hearing, cannot be cured with a subsequent hearing notice that has the date, time and place of the hearing.

This is a big win for immigrants in Removal/Deportation proceedings. Thousands will be affected by the US Supreme Court ruling in Niz-Chavez v. Garland.

The US Supreme Court further stated:

“Besides, even viewed in isolation the government’s policy arguments are hardly unassailable. If the government finds filling out forms a chore, it has good company. The world is awash in forms, and rarely do agencies afford indi­viduals the same latitude in completing them that the gov­ernment seeks for itself today. Take this example: Asylum applicants must use a 12-page form and comply with 14 single-spaced pages of instructions. Failure to do so properly risks having an application returned, losing any chance of relief, or even criminal penalties.”

If you are currently in removal proceedings or have been ordered deported, it is important to speak with an immigration attorney as soon as possible so that this issue can be raised timely with the Immigration court or appellate court. Being eligible for ten cancellation of removal and filing it with the court, allows the individual to apply for a category c10 work permit and if it is approved, a legal permanent resident card will be issued.

Please call our office to see if you may be impacted by the US Supreme Court’s ruling — call (866) 521-6422.