Matter Of BERMUDEZ-COTA
Author: New York Immigration Lawyer Alena Shautsova
Just a few months ago, the entire Immigration community became very excited after the US Supreme Court held that the Notice to Appear that does not list specific date and time for the hearing cannot be used for the “stop-time” rule purposes, opening the door for thousands of immigrants to reopen their cases and apply for a relief. It also meant that the Immigration court did not have jurisdiction over the case at all, and all those cases that were started pursuant to such notices had to be terminated. Pereira v. Sessions, 138 S. Ct. 2105 (2018).
And just a few days ago, the Board of Immigration Appeals held that a subsequent notice of a hearing listing the date and time is, in fact, sufficient for the Immigration court to have jurisdiction over the case. Matter of BERMUDEZ-COTA, 27 I&N Dec. 441 (BIA 2018).
This is how it often works: ICE determines that it has grounds to send a person into removal proceedings. It issues to a person a Notice to Appear containing charges against him/her, but at the bottom of the notice, the date and time of the hearing in Immigration court is missing. Instead it states: “TBD”. It is so because ICE has to file the NTA with the court first and obtain the available date and time. Often, the NTA itself never gets amended, but the court sends the person a notice of the hearing containing the date and time.
Under the “stop-time” rule, continuous physical presence needed to apply for cancellation of removal is deemed to end “when the alien is served a notice to appear under section 239(a)” of the Act, 8 U.S.C. § 1229(a) (2012). According to section 239(a), a notice to appear must “be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any) specifying,” among other things, “[t]he time and place at which the proceedings will be held.” Section 239(a)(1)(G)(i) of the Act.
The Supreme Court stated “TBD” is not specific enough and cannot be used to stop the time of the person’s accumulation of necessary years in the US relevant when applying for cancellation of removal. But the BIA rejected an extended argument that in addition, the Immigration court does not have jurisdiction over the case at all and the entire proceedings were invalid.
It should be noted that despite the fact that BIA held that the court remained jurisdiction even under the “TBD” notice to appear, it did not address the issue of possible application for cancellation. It means that even though the proceedings may not be terminated as invalid, a person may have a chance of filing for a cancellation of removal, basically a “green card” with the judge.
It is very important to use this opportunity to try to reopen one’s case right now. If you have Immigration questions related to the reopening of the proceedings, please schedule a consultation by calling 917-885-2261.