Series of Articles on Pereira v. Sessions and Related Issues (Validity of NTA Lacking Time/Place of Proceedings)

Introduction

On June 21, 2018, the Supreme Court of the United States issued an important decision in Pereira v. Sessions, 138 S.Ct. 2105. In the decision, the Court ruled that a putative “notice to appear” at removal proceedings that does not specify the time or place of the removal proceedings is not a “notice to appear” under section 239(a) of the Immigration and Nationality Act (INA) for purpose of triggering the “stop-time” rule under the cancellation of removal provisions of section 240A(d). In so doing, the Court abrogated the Board of Immigration Appeals (BIA) decision in Matter of Camarillo, 25 I&N Dec. 644 (BIA 2012), and the decisions of several Federal appellate courts which deferred to the Board's interpretation of the relevant statutes.

Following Pereira, however, the Board ruled in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), that a notice to appear lacking the time or place of proceedings is sufficient to vest authority over the removal proceedings in an Immigration Judge provided that a notice of hearing specifying the time and place of proceedings is subsequently sent to the alien. The Board distinguished the jurisdiction question from the Supreme Court's decision in Pereira.

On May 1, 2019, the Board issued an en banc decision in Matter of Mendoza-Hernandez and Capula-Cortes. A nine-member majority of the Board held that a deficient notice to appear could be “perfected” by the subsequent issuance of a notice of hearing including the time and place of the alien's initial removal hearing. In this situation, the combination of notices is sufficient for triggering the stop-time rule and the alien's accrual of continuous physical presence is halted with the issuance of the notice of hearing. Six members of the Board dissented, arguing that the two-step approach was foreclosed by the Supreme Court in Pereira. This decision will likely be subject to further litigation.

We have written several articles about Pereira v. Sessions, Matter of Bermudez-Cota, and related cases and issues. Below, you will find links to our full articles on the subject. We expect that issues stemming from Pereira v. Sessions and Matter of Bermudez-Cota will continue to be litigated over the coming months and years. We will update this article index with new posts on the issues if and when we post further articles on the subject.

Articles on Pereira v. Sessions

“Pereira v. Sessions, 138 S.Ct. 2105 (2018): NTA Must Include Time and Date of Hearing to Trigger Stop-Time Rule” [see article]
This is our full article on the Pereira v. Sessions decision. It includes a discussion of the Opinion of the Court authored by Justice Sotomayor, a concurring opinion authored by Justice Anthony Kennedy, and a dissenting opinion authored by Justice Samuel Alito. We recommend beginning with this article to understand the relevant issues.

“SCOTUS Oral Arguments in Pereira v. Sessions (When NTA Triggers Stop-Time Rule) [see article]
In this blog post, we analyzed the oral arguments in Pereira v. Sessions. Although we now know the Court's view of the issues because of the publication of the decision, the oral arguments still provide an interesting discussion of the issues and the Justices' grappling with them.

“SCOTUS Grants Cert in 17-459 Pereira v. Sessions: When Does an NTA Trigger Stop-Time Rule for Cancellation Purposes?” [see article]
This was our initial article on Pereira v. Sessions, written to discuss the Supreme Court's decision to agree to hear the case. The article has been updated with a comment to reflect that the Court has published a decision in the case. This article provides a thorough discussion of the issues that the Court would eventually resolve in its decisions.

Articles on BIA Post-Pereira Administrative Decisions

“Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018): When an NTA With No Time and/or Place For Hearing Vests Authority in IJ” [see article]
This article provides a comprehensive discussion of the Board's decision in Matter of Bermudez-Cota and what it may mean going forward.

“BIA Holds that Notice of Hearing Can “Perfect” NTA for Stop-Time Rule Purposes” [see article]
This article provides a comprehensive discussion of the Board's decision in Matter of Mendoz-Hernandez and Capula-Cortes, 27 I&N Dec. 520 (BIA 2019) (en banc) and discusses what it will mean going forward. The article also provides a general overview of the arguments made by six Board members in a dissenting opinion.

“Matter of Pena-Mejia: Rescission of In Absentia Order/Termination Unnecessary Where Alien Fails to Appear After Receiving NOH” [see article]
The BIA held that Pereira does not require the rescission of an in absentia removal order or the termination of an alien's removal proceedings when an alien who was served with a notice to appear which did not specify the time and place of the initial removal hearing failed to appear after being sent the notice of hearing in accord with the statutory and regulatory requirements.

“Matter of Miranda-Cordiero: Rescission of In Absentia Order/Termination Unnecessary When Alien Fails to Provide Address for NOH” [see article]
The BIA heald that Pereira does not require the rescission of an in absentia removal order or the termination of an alien's removal proceedings when an alien who was served with a notice to appear which did not specify the time and place of the initial removal hearing failed to appear after failing to provide an address where the notice of hearing could be sent.

Articles on Other Relevant Court Decisions

“Ninth Circuit Holds That Deficient NTA Cannot Be Cured By Notice of Hearing” [see article]
On May 23, 2019, the Ninth Circuit published a decision in Lopez v. Barr, — F.3d —— (9th Cir. 2019) rejecting the Board’s precedent in Matter of Mendoza-Hernandez and Capula-Cortes (see above) and holding that a deficient notice to appear cannot be cured by the subsequent issuance of a notice of hearing specifying the time and place of the initial removal hearing.

“Dababneh v. Gonzales, 471 F.3d 806 (7th Cir. 2006): Sufficiency of NTA and NOH For Jurisdiction and Stop-Time Purposes” [see article]
In 2006, the United States Court of Appeals for the Seventh Circuit ruled that a notice to appear that lacks the time or place of proceedings, supplemented by a notice of hearing that includes this information, is sufficient both to vest authority over proceedings in the Immigration Judge and to trigger the stop-time rule. The Board cited favorably to this decision, among others, in Matter of Bermudez-Cota. The Board later adopted the two-step process sanctioned by Dababneh as sufficient for triggering the stop-time rule in Matter of Mendoza-Hernandez and Capula-Cortes.

Articles on Other Guidance

“EOIR Memorandum on Acceptance of NTAs Post-Pereira” [see article]
On December 21, 2018, Executive Office of Immigration Review (EOIR) Director James McHenry published a memorandum for EOIR on the EOIR's policies for accepting NTAs post-Pereira. The memorandum specifically addresses the EOIR's new procedures for working with the DHS in setting initial hearing dates and accepting NTAs in non-detained cases.