In June 2018, the U.S. Supreme Court issued a landmark 8-1 decision in Pereira v Sessions holding that a Notice to Appear (NTA) in Immigration Court which does not state the date and time of the hearing is a defective Notice to Appear and does not give the Immigration Court jurisdiction over a case.

The government has failed to include the date and time in over 90% of the NTAs that it has issued over the past 20 years. Thus, the Pereira decision could void hundreds of thousands of existing and completed removal proceedings.

This would be a disaster for an Administration which is intent on deporting as many people as possible.

In August 2018, the Board of Immigration Appeals (BIA) which is part of the U.S. Department of Justice, came to the rescue in Matter of Bermudez-Cota which stated that the holding in Pereira only applies to a “narrow” category of foreign-born persons who, like Mr. Pereira, were subject to the “stop-time” rule in applying for relief from removal.

Though this conclusion seems a bit far-fetched, a number of U.S. Courts of Appeals have held that the language of the law is ambiguous, and therefore, they would defer to the BIA’s decision in Bermudez-Cota.

BIA – Perfecting a Defective Notice to Appear

boardofimmigrationappeals.jpgEmboldened by their success in Bermudez-Cota, the BIA issued a new decision on May 1, 2019 in Matter of Mendoza-Hernandez and Matter of Capula-Cortes which severely restricts the holding in Pereira v. Sessions.

The BIA held that even if the NTA is invalid because it does not state the date and time of the hearing as required by law, a subsequent Notice of Hearing which does state the date and time of the hearing “perfects” the original NTA. In other words, the original defective NTA and the later Notice of Hearing, in combination, result in an NTA which complies with the law.

Once the NTA is perfected, the stop-time rule applies and any time period which occurs after the service of the Notice of Hearing cannot be utilized by the respondent to apply for cancellation of removal.

These decisions would almost completely cancel the negative effects of the government’s failure to follow the law in issuing hundreds of thousands of defective NTAs.

But wait, there’s more…

Dissent: A Defective NTA Cannot be Perfected

Unlike the decision in Bermudez-Cota, various members of the BIA strongly dissented from the majority decision in Matter of Mendoza-Hernandez and Matter of Capula-Cortes.

John W. Guendelsberger, Charles K. Adkins-Blanch, Vice Chairman; Patricia A. Cole, Edward R. Grant, Michael J. Creppy, and Molly Kendall Clark joined together in a strong dissent which held that the majority decision is clearly in conflict with the Supreme Court’s decision in Pereira v. Sessions.

Simply put, the dissent states that a subsequent Notice of Hearing cannot cure a defective Notice to Appear. The dissent states that the majority opinion relies on a 3rd Circuit decision which was decided prior to the Supreme Court’s decision in Pereira. The reasoning of the Circuit Court’s decision “does not take into account the Supreme Court’s determination that the ‘stop-time’ rule contains plain and unambiguous language in its description of the event that triggers the ‘stop-time’ rule, namely, the service of a section 239(a)(1) notice to appear.”

The dissent states that “the plain language of the Act leaves no room for the majority’s conclusion that a subsequent notice of hearing can cure a notice to appear that fails to specify the time and place of the initial removal hearing.”

Moving Forward

Hopefully, the May 1st decision of the BIA restricting the reach of the Supreme Court’s decision in Pereira v Sessions will be overturned in Federal Court. Nothing in the Supreme Court’s holding in Pereira suggests that a defective notice to appear can be perfected at a later time.

Rather than defer to this decision, one hopes that the Federal Courts will abide by the decision of the Supreme Court and uphold the immigration law as written, thus insuring that persons in removal proceedings are entitled to their legal rights.
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