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Explained by former INS Attorney Carl Shusterman.

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How to Stop Your Deportation under Pereira v. Sessions.

The Supreme Court issued a decision in Pereira v. Sessions (2018) which will benefit many thousands of persons who are in deportation proceedings, who have been ordered to leave the US or who have already been deported.

Immigration attorneys are filing Motions to Terminate Removal Proceedings and are applying for Cancellation of Removal for persons who have been found deportable in the past. Some of these persons may also be eligible for other forms of relief from deportation. For example, a person who married a US citizen may be eligible for adjustment of status.

The U.S. Supreme Court, by an 8 to 1 vote, ruled that Mr. Pereira who came to the US on a visitor’s visa in 2000, overstayed and was placed in removal proceedings in 2006, was eligible to apply for a green card through cancellation of removal as a non-LPR.

One of the requirements for Cancellation of Removal is that a person be physically present in the US for 10 years or more. The law provides that if the person receives a Notice to Appear (NTA) before an Immigration Judge, his period of continuous residence is deemed to end. This is known as the “stop time rule”.

How did Mr. Pereira satisfy the 10-year rule since he was served with an NTA 6 years after he arrived in the US?

The Immigration Judge, the BIA and the US Court of Appeals for the 1st Circuit all held that he did not satisfy the 10-year requirement since he was served with an NTA in 2006, 6 years after he arrived in the US. However, the Supreme Court held that because the NTA did not specify the date and time of his hearing before the Immigration Judge as required by law, the NTA was invalid and the stop time rule did not apply.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created the requirements for both Cancellation of Removal and the stop-time rule. IIRIRA requires that the NTA must specify the “time and place at which the proceedings will be held”. 8 USC 1229b(d)(1)

However, the NTA which Mr. Pereira received in 2006 did not specify the date and time of his hearing. Instead, it simply ordered him to appear before an Immigration Judge “at a date to be set at a time to be set”. Therefore, the Supreme Court held that since the NTA did not comply with the requirements of the law, the stop-time rule does not apply.

Who Benefits Under the Pereira Decision?

This decision is significant in that it applies not only to Mr. Pereira, but to many thousands of persons who are currently in removal proceedings as well as to persons who have been ordered deported from the US and to those who have already been deported.

In 1997, after the passage of IIRIRA, the Attorney General promulgated a regulation stating that an NTA served on a noncitizen need only provide “the time, place and date of the initial removal hearing, where practicable.” 62 Fed. Reg. 10332 (1997). Per this regulation, the government typically does not inform persons of the date and time of their initial hearings in Immigration Court on their NTAs. The Supreme Court held this regulation to be invalid, and ruled that these NTAs do not comply with the law and, therefore, the stop-time rule does not apply.

As a result, there are many thousands of persons who are now eligible to reopen their removal proceedings to enable them to apply for relief from deportation.

Mr. Pereira was able to accumulate 10 years of physical presence in the US because, in 2007, when the government sent him an NTA with the date and time of his hearing before an Immigration Judge, the government sent the NTA to an incorrect address. By the time he was turned over to the DHS in 2013 as the result of a traffic violation, he had satisfied the 10-year continuous physical presence requirement for cancellation of removal.

The Supreme Court’s decision will allow thousands of persons whose cases are before Immigration Judges or on appeal to the BIA or the Federal Courts to apply for cancellation of removal. It also benefits persons who have been ordered deported, granted voluntary departure or who have been granted relief, like withholding of removal, which does not lead to permanent resident status...



Below are various helpful resources:


Apply for Relief from Removal under Pereira v. Sessions

https://www.shusterman.com/pereira_re...


Could Matter Of Bermudez-Cota Narrow The Holding In Pereira?

https://www.shusterman.com/bermudez-c...


Winning Your Case in Immigration Court

https://www.shusterman.com/winningimm...


Deportation Defense Guide

https://www.shusterman.com/deportatio...

Cancellation of Removal for Non-LPRs

https://www.shusterman.com/cancellati...