BIA Skirts Supreme Court Decision

BIA Skirts Supreme Court Decision

In a win for civil rights the Supreme Court defined “notices to appear” in immigration court as defective if they did not provide a date, time and location for an immigrant to appear in court. The Immigration Customs and Enforcement’s (ICE) own paperwork requires this information. It is only common sense that a person can’t honor the requirement to show up without knowing when and where.

The ruling issued in June 2018 affects immigrants’ applications for cancellation of removal. The application must show that the person has resided in the U.S. for a defined amount of time. ICE argued that, even if it is defective, the notice to appear stopped the immigrant’s accrual of time toward their minimum stay. In other words, it eliminated their ability to show they met the burden for length of stay.

The Board of Immigration Appeals issued a new rule in September 2018 skirting the Supreme Court decision. If ICE issues a notice later that includes the date, time and place that counts as a correction to the original notice to appear. According to the BIA, the date of the original notice becomes valid and thus stopped the accumulation of time on that earlier date.

If the BIA rule is allowed to stand then immigrants will lose some of their required residency time despite the fact they have been physically present. It can also mean that immigrants and their attorneys may not be able to determine whether the applicant met the minimum physical presence requirement for cancellation of removal.

Essentially the BIA is saying it it does not have to comply with the Supreme Court ruling, or at least the spirit of it.

Experienced immigration attorneys provide your best chance to fight defective notices to appear and obtain a cancellation of removal. The team at Landerholm Immigration, A.P.C. has the knowledge to help you with your application. Contact us on our website or call us at (510) 756-4468 for an evaluation of how we can help you!

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