BREAKING NEWS FOR REMOVAL PROCEEDINGS: Niz-Chavez v. Garland and Notices to Appear

BREAKING NEWS FOR REMOVAL PROCEEDINGS: Niz-Chavez v. Garland and Notices to Appear

By Davis & Associates | May 17, 2021
On April 29th, 2021, the US Supreme Court issued a highly significant decision to people in removal proceedings. In this article, we will break down the decision and explain the implications for people facing deportation.
As a preliminary matter, many people facing removal proceedings from the United States have the option to pursue relief from removal from the US under INA Section 240A(b). That section is called Cancellation of Removal for Nonpermanent Residents.

The Requirements To Seek Cancellation of Removal

  • The person must have been served with a Notice to Appear, the document issued by the Department of Homeland Security that when served on a person and filed with the Executive Office for Immigration Review (the Immigration Court) places the person into deportation or “removal” proceedings.
  • The person must prove that he or she has been in the US for at least 10 years. The 10 years could be after a legal entry or an illegal entry, as long as the person can prove presence in the US for those 10 years. There are rules that stop the 10 years from counting, which is central to the Supreme Court decision.
  • The person must prove that he or she has been a person of good moral character and has no barring criminal record.
  • Finally, the person must prove that a qualifying family member would suffer “exceptional and extremely unusual hardship” in the event the relative in removal proceedings were to be deported from the US. Those who qualify as family members for this purpose are a spouse, parent or child under age 21 who is a US citizen or lawful permanent resident.
As I mentioned, there are situations that stop the accrual of the 10 year time required for a person to be eligible for relief from removal under Cancellation of Removal for Nonpermanent Residents. One of those, central to the Supreme Court decision for Mr. Niz-Chavez, is the service of a Notice to Appear. Until today, the service of a Notice to Appear was sufficient to stop the clock counting on the 10 years required for Cancellation of Removal for Nonpermanent Residents.
Often when a Notice to Appear is issued by the government, it does not actually state when the person is supposed to appear in court. The blanks on the form document that would advise the person served with the Notice to Appear of when to appear were completed with To Be Determined, TBD, or something similar.

The Supreme Court Decision: Notice To Appear

In a surprising decision, considering the conservative majority, the Supreme Court held that a Notice to Appear that does not include a specific notification of when and where to appear for the hearing does not stop the clock for the 10 years for Cancellation of Removal eligibility.

What This Means For Removal Proceedings

If you are facing removal proceedings and have been waiting for your hearing for a long time, you should check your Notice to Appear. If it was either left blank or completed with something like To Be Determined, you may still be accruing time towards eligibility for Cancellation of Removal for Nonpermanent Residents.
This could be a serious game changer. If you are now eligible for Cancellation of Removal for Nonpermanent Residents and you have confirmation that the Notice to Appear is pending with the Immigration Court, you could be eligible for Employment Authorization and for permanent residence through Cancellation of Removal.
If you believe this decision may apply to you, please contact us for a free consultation and let us help you determine whether or not you have a benefit in light of this decision.

 

About Davis & Associates:

Davis & Associates is the immigration law firm of choice in Houston & North Texas including Dallas, Fort Worth, Plano, Frisco, McKinney and surrounding areas. Their attorneys provide expert legal counsel for all aspects of immigration law, including deportation defense, writs of habeas corpus and mandamus, family-sponsored immigration, employment-sponsored immigration, investment immigration, employer compliance, temporary visas for work and college, permanent residence, naturalization, consular visa processing, waivers, and appeals. Attorney Garry L. Davis is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.

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