June 26, 2018

Due process is an essential tenant of the rule of law. In the immigration context, there are certain standards that must be met to ensure a full and fair hearing for the immigrant. The immigration laws require that "Notices to Appear" (NTAs), which are essentially the immigration version of a charging document, must contain specific things. These include: nature of proceedings, legal authority for proceedings, the charges against the immigrant, the time and place of the hearing, and a notice that the alien may be represented and that they must provide the court with their contact information. On June 21st, the Supreme Court ruled in Pereira v. Sessions that failing to meet the requirement to list the time and place of the hearing when serving an NTA invalidates it. The case has potentially far-reaching implications for removal cases.

Routinely, both Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) do not list the time and/or place of the hearing, instead listing "to be set." An immigration court case cannot commence without proper service and filing of the NTA. If an NTA is invalid, then arguably the court does not have jurisdiction over the case and proceedings must be terminated. This opens the door for thousands of immigrants to file motions to terminate their court case. Presently, this decision is being inconsistently applied nationwide. Some judges are terminating proceedings, and some are requesting that both the immigrant and the government file written arguments. Still others are continuing cases until further guidance is received, and a few are denying such motions.

There are specific cases in which terminating proceedings — even if ICE files a correct NTA right away — is beneficial. For example, in cancellation of removal cases, the NTA stops the accrual of time the immigrant can use to meet an eligibility requirement. If the old NTA is deemed invalidated and a new NTA is issued, the immigrant might now qualify. Additionally, for I-601A Provisional Waiver cases, an immigrant must either not be in removal proceedings or have his or her case administratively closed. If the court terminates their case based on Pereira, the immigrant could become eligible for the waiver. Overall, this decision will help immigrants and ensure that future NTAs are issued in accordance with the law.

back to Updates