On June 21, 2018, the Supreme Court of the United States issued a decision that will allow many, if not most immigrants who were issued (deportation) removal orders by the Immigration Court to apply to have their removal orders reopened and to have proceedings before the court terminated.
For the past 21 years, every person who has been placed into proceedings before the Immigration Court has been placed into proceedings by being served a paper called a “Notice to Appear.” (Previously the document was called an “Order to Show Cause.”) The Notice to Appear (and the Order to Show Cause beforehand) is the document served by the Department of Homeland Security on the immigrant that will state why the person should be removed from the country. It will allege, for example, the country of origin, that the person is not lawfully present in the United States, if the person entered with a visa or without inspection, and often the date of the person’s entry into the United States.
Significantly, the Notice to Appear was also supposed to state the date, time and place where the immigrant would have to appear before the Immigration Judge. However, the vast majority of the Notices to Appear failed to state the date, time and place of the court appointment. On June 21, 2018, the Supreme Court ruled Notices to Appear that failed to state the date, time and place of the court appointment were defective. (The name of the case is Pereira v. Sessions.)
Immigrants who could have an order of removal need to obtain a copy of their Notice to Appear to determine if they can reopen their old orders of removal. (Obviously, this should be done with the assistance of an attorney.) This has two significant consequences. First, if you do not qualify for relief or your case is not strong, your attorney should be able to terminate removal proceedings before the Immigration Judge. Second. If the Notice to Appear was improperly served and you reopen the proceedings you could be in a situation to qualify for relief for which the person was previously ineligible. This most commonly happens for people who can now qualify for cancellation of removal for nonpermanent residents.
Imagine the following scenario. You were apprehended after entry in 2004. You were issued a Notice to Appear that says your court date will be scheduled at a time, date and place to be determined. The court appointment is then scheduled in 2006 and the Immigration Judge issues an in absentia order of removal. You now have children born in the United States. You now seek to reopen your case based on this new Supreme Court decision. You could pursue applying for Cancellation of Removal for Nonpermanent Residents because if you are placed into proceedings again, it will have been more than ten years after you entered the United States. To be clear, you will want to have a deeper analysis of your case to determine whether you will want to pursue cancellation of removal or termination of removal proceedings, but both options would be available to you in that scenario.
