Despite Supreme Court, B.I.A. Says Defective NTA Might Not End Removal Proceedings

B.I.A. response to Supreme Court Pereira decision dashes immigrants' hopes that their defective NTAs might lead to termination of removal proceedings, though the issue of accruing ten years toward cancellation of removal after a defective NTA is issued remains unclear.

** LEGAL UPDATE **

In the last several months, immigration courts across the U.S. have been consumed by the issue of whether some missing bits of information on the initial paperwork that puts immigrants into removal proceedings can provide cause for terminating those proceedings altogether.

By way of background, in June 2018, the U.S. Supreme Court held in the case Pereira v. Sessions that if a key deportation charging document—the Notice to Appear (NTA)—does not specify the time and place at which the non-citizen should show up for removal proceedings, it is by definition not complete. Therefore such an NTA does not “stop the clock” for calculating the person's time of residence in the U.S. if he or she is applying for cancellation of removal—a form of relief from deportation. To apply for cancellation, one must demonstrate having resided in the U.S. for ten years or more before the NTA's filing. Under the Pereira ruling, if the NTA does not have this important information the non-citizen can still accrue time towards this ten-year residency requirement even after the NTA is filed.

Since then, immigration judges across the country have come to differing conclusions about the full meaning and scope of the Pereria decision.

Some found that an NTA without a time, date, and place of hearing is still valid as long as a notice of hearing is later sent to the person in removal proceedings.

Other immigration judges, however, found that if an NTA is defective the case must be terminated and a new, proper NTA filed. These judges reasoned that because the NTA formally begins the removal process and gives the judge jurisdiction (the power to decide a case), a case cannot move forward with a defective NTA. This second interpretation gave hope to many people that their removal proceedings could be ended, as few NTAs were issued by the government with the time and place of hearing.

In September 2018, the Board of Immigration Appeals (B.I.A.) addressed this issue in the case Matter of Bermudez-Cota. It found that removal proceedings can move forward even with a defective NTA if a notice of hearing was later sent to the person in removal proceedings. The B.I.A. reasoned that if a respondent is later informed of a hearing, the defective NTA is cured. If you are in removal proceedings and have a defective NTA (without time, date, and/or place of hearing) this decision means, for now, the immigration judge is unlikely to terminate your case on this basis alone.

Nonetheless, many immigrant advocates believe that the B.I.A.’s interpretation in Matter of Bermudez-Cota is not in line with the Supreme Court’s decision in Pereria and could be decided differently by higher courts.

This issue will now be appealed to federal courts of appeal across the country, and could possibly go back to the Supreme Court, so it is worth following developments related to this case if you have a defective NTA and are in removal proceedings.

Cancellation of Removal and Bermudez-Cota

Matter of Bermudez-Cota leaves open the question of when the clock will stop for calculating ten years of residency once a notice of hearing is issued for people applying for cancellation of removal. It seems to conflict with the Supreme Court decision as to when an NTA is defective.

Because the Bermudez-Cota case did not involve someone applying for cancellation of removal, it is unclear whether or not being served a notice of hearing will stop the clock for determining ten years of residency. Additional litigation may be required before the matter is fully settled.

Effective Date: August 31, 2018