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Defective Notice to Appear for Removal Doesn't Stop Time for Physical Presence Requirement

By George Khoury, Esq. on June 25, 2018 | Last updated on March 21, 2019

In an 8 to 1 decision issued late last week, SCOTUS held that a defective notice to appear for a removal proceeding cannot be used to justify stopping time from accruing toward a non-citizen satisfying the physical presence requirement.

The case involves a Brazilian born, now Martha's Vineyard man, Wescley Pereira, who has been in the United States for nearly two decades on a six month visa, and now has two children that are both U.S. citizens. Though he entered in 2000, in 2006, he was served with a Notice to Appear for a removal hearing. However, that notice did not provide the time and date of the appearance. Unfortunately, until he reached the Supreme Court, no one else seemed to care that the notice he received was no notice at all.

A Sotomayor Slam Dunk

Justice Sotomayor, writing for the majority, explains that the clear text of the statute in question required ruling that defective notices cannot stop time from accruing toward the physical presence requirement. The opinion clearly sets forth the following logic:

The statutory text alone is enough to resolve this case. Under the stop-time rule, "any period of . . . continuous physical presence" is "deemed to end . . . when the alien is served a notice to appear under section 1229(a)." 8 U. S. C. §1229b(d)(1). By expressly referencing §1229(a), the statute specifies where to look to find out what "notice to appear" means. Section 1229(a), in turn, clarifies that the type of notice "referred to as a 'notice to appear'" throughout the statutory section is a "written notice . . . specifying," as relevant here, "[t]he time and place at which the [removal] proceedings will be held." §1229(a)(1)(G)(i). Thus, based on the plain text of the statute, it is clear that to trigger the stop-time rule, the Government must serve a notice to appear that, at the very least, "specif[ies]" the "time and place" of the removal proceedings.

Although Justice Sotomayor continues on for another 10 pages, the above logic is the mantra that is continually called up to dismiss every argument to the contrary.

Shockingly though, the decision points out that for the last few years, most Notices to Appear have gone out with the actual time and place set as TBD. As a result, the Court's decision is likely to have far reaching implications.

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