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Wescley Fonseca Pereira entered the United States a tourist visa in June 2000 and able to legally to stay until December 21, 2000. Pereira overstayed his visa, and in May 2006, the Department of Homeland Security (DHS) personally served him with a Notice to Appear for a Removal Hearing. His notice did not specify the date and time of his initial removal hearing, but instead ordered him to appear before an immigration judge “on a date to be set at a time to be set”; when the immigration court set a date and time, it mailed Pereira a notice with such information but Pereira never received it, when Pereira did not appear for his removal hearing, an immigration judge ordered him removed in absentia.

Pereira was not removed and instead remained in the country, in March 2013, he was arrested for a motor vehicle violation and detained by DHS, through his Attorney, Pereira filed a motion to reopen his removal proceedings, claiming he had never received the hearing notice with the time and place, although Pereira conceded that he could be removed, he sought relief in the form of cancellation of removal the provision that gives the Attorney General discretion to cancel the Removal of a Non-Permanent Resident Alien if the alien meets certain criteria, including ten years of continuous physical presence in the United States. This continuous period ends “when the alien is served a Notice to Appear”, given by USCIS. Pereira contends that because he did not receive notice of the time and place of his removal hearing, his presence in the country was continuous and over ten years under the statute.

A Notice to Appear (“NTA”), is a document that signals the start of removal proceedings against you. If you receive an NTA, it means that you must appear in Immigration Court on the date specified or at a date to be determined in the future. The Department of Homeland Security (DHS), at least in recent years, have served noncitizens with notices that fail to specify the time, place, or date of their initial removal hearings.

During the Supreme Court decision Pereira vs. Sessions, Attorney General, it was decided that if a Notice to Appear (NTA) does not specify the time and place of the hearing, it does not trigger the “stop-time rule.” In an 8-1 decision authored by Justice Sonia Sotomayor, the Court reasoned that a “Notice to Appear” that does not include with specificity both “when” and “where” cannot reasonably be expected to result in a person appearing at their hearing. This is one of the rare times that the Supreme Court rules in favor of the immigrant and a victory for those who are in immigration proceedings including order or removal or deportation.

The “stop- time rule” defines when continuous residence or continuous physical presence ends and it can only end when either the alien commits a designated criminal offense or is served with a Notice to Appear (NTA) placing him/her in removal proceedings. There is a relief called Cancellation of Removal that if you have been in the United States for the minimum of 10 years, you are eligible for relief under the Cancellation of Removal. If your NTA does not specifically state the time, date, or place for your hearing, it would be as if you were never given an NTA, and deemed as if you were never here (if you entered without a visa and was never inspected) and can resume to the original date and year you arrived at the United States.

To be eligible for Non-LPR Cancellation of Removal, the alien must establish:

  1.   Has been physically present in the U.S. for a continuous period of at least ten years
  2.   Has been a person of good moral character during the past ten years;
  3.   Has not been convicted of certain criminal offenses
  4.   Has a U.S. citizen or lawful permanent resident spouse, parent or child who would endure exceptional and extremely unusual hardship if the removal was not canceled

An alien who has been placed in removal proceedings and has been living in the United States without legal status for a long time may be eligible for Non-LPR Cancellation of Removal.

If you were ever served with an NTA, ordered deported and did not leave the United States and believe you have a meritorious Cancellation of Removal, based on the decision of the Supreme Court, we may be able to go back to court, reopen the case and close your order of deportation. This is one of the many solutions we may be able to help you with. Contact our office for the best solution for you.

At Mercedes Cano we are here to help you. To have your case reviewed by our office, please contact us at 718-505-8506 or please fill out our Contact Form.

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