Defective Notice to Appear

Immigration Lawyers to Reopen Removal Proceedings for Defective Notices

Immigration Attorneys for Defective Notice to Appear

The Visa Pros at Weinstock Immigration Lawyers specialize in helping people fight a defective notice to appear. Our immigration attorneys can help many people to reopen or cancel their deportation orders or removal orders in some cases. A non-citizen begins their immigration court case by receiving a document known as the “Notice To Appear” (NTA) from the Department of Homeland Security (DHS), previously INS. This document is starts removal or deportation proceedings against an individual who the government wants to remove because they don’t have the proper visa or status to remain here. The Immigration and Nationality Act (INA) lays out what must be included in the NTA. Importantly, the “time and place at which the proceedings will be held” must be listed as an item and specified in the NTA document itself. The “time and place” to be changed after issuance of the NTA so long as the non-citizen is provided notice of the new “time and place” he is required to appear.

For many years, DHS was providing NTAs that did not include the “time and place” for the non-citizen to appear before the immigration judge. Instead, the NTAs came in the mail or were personally served on people with “a date to be set,” instead of including a specific court time and place. Many people were ordered removed or deported in absentia, without even being present at their court hearings, because they did not check the system or did not know when or where their hearings would take place. Many times, DHS just mailed the NTA to the last known address or to a wrong address. This issue was first taken up by the Supreme Court of the United States in Pereira v. Sessions.

What is a defective NTA?

There could be several defects in an NTA, which has to be reviewed carefully by an experienced removal attorney or deportation defense lawyer. One of them was decided in Pereira, where the Supreme Court looked at this defective NTA issue in the context of cancellation of removal. Cancellation of removal is a form of relief available for people before the immigration court. There are two types of cancellation of removal. The first is cancellation of removal for lawful permanent residents (LPRs) who have been convicted of crimes and have continuously resided in the U.S. for at least 7 years, 5 of which as an LPR.

The second type of cancellation of removal for non-lawful permanent residents and requires 10 years of continuous physical presence in the U.S., among other requirements. DHS’ practice of issuing NTAs, even without listing the required “time and place,” would “stop the clock” and prevent people from qualifying for both types of cancellation of removal. In Pereira, however, the Supreme Court ruled that a notice to appear that does not list the time and place is defective and therefore does not trigger the stop-time rule. As such, many immigration court judges terminated immigration court proceedings for those whose NTA were defective due to lacking the “time and place” the hearing should take place. The Board of Immigration Appels, however, ruled in Matter of Mendoza-Hernandez & Capula Cortez that a subsequent hearing notice issued by the immigration court “cures,” or fixes, the defective NTA.

New hope for removal defense attorney to reopen deportation proceedings

A recent U.S. Supreme Court case brings new hope for removal defense attorneys and thousands of people who were ordered deported to possibly allow them to reopen deportation proceedings. The ruling in Niz-Chavez v. Garland can help thousands of people to reopen their removal orders now. The court determined that even if DHS sent a subsequent hearing notice, it could not fix an original defective NTA lacking the “time and place” requirements. The Court found a valid NTA must be a single document to provide notice to the individual which must include the time and place of the court hearing. The court found Congress intended for DHS to issue a single document that included everything an individual would need to know to navigate the complex immigration system.

Several options for eligibility to hire a deportation lawyer

There are several options that a non-citizen may now be eligible for in light of the Supreme Court’s ruling and may need to hire a deportation lawyer for. It is best to consult with an immigration attorney specializing specifically in removal and deportation in order to evaluate each case carefully.   

  1. Eligibility for Cancellation of Removal

If a non-citizen received an NTA that failed to include the “place and time” of the hearing notice, they may be eligible to apply for cancellation now because the defective NTA should not have stopped the time towards their residency or physical presence requirements as mentioned above. In order to obtain this form of relief, you would need to hire a removal defense attorney to raise this issue in a legal brief or oral argument before the Immigration Court or the Board of Immigration Appeals. Hiring a good immigration attorney that specializes in removal proceedings is very important to increase the likelihood of success in the case.

  1. Post-Conclusion Voluntary Departure Eligibility

A non-citizen may receive voluntary departure in lieu of a removal order at the end of their immigration court case. Sometimes it is better to obtain a voluntary departure order instead of a removal or deportation order, but it depends on each case.

Because this form of relief requires physical presence that is also time stopped by the NTA, the same legal arguments applied towards the cancellation of removal may be applied towards a post-conclusion voluntary departure. Hiring a good removal defense lawyer who can file this paperwork correctly is very important.

  1. Rescind and Reopen previous orders in cases with defective NTAs

Many in absentia order of removal, or a deportation order for failing to appear in court have been issued throughout the years by immigration courts, even in cases of defective NTAs. Many people were ordered removed by courts even though their NTAs were defective. Therefore, now if individuals file proper motions to reopen previous orders in cases with defective NTAs, their case may be reopened. To do this, an individual must file a motion to reopen with either the Immigration Court or the Board of Immigration Appeals. A motion to reopen must be brought within 90 days of discovering facts that merit eligibility for the motion to reopen. Given the significant and detailed legal argument that must be made, it is critical to the success of the case to hire an immigration court attorney that specializes in defending removal cases. 

  1. Terminate your Immigration Case due to Defective NTA

Because the NTA is what gives the Immigration Court jurisdiction over a removal matter, a defective NTA should not grant the Immigration Court the ability to move forward with a removal case. In some cases, a good removal defense lawyer can file pleadings that will ultimately lead to termination of an individual’s immigration court proceedings and prevent a potential removal order.

Do I need an immigration attorney to reopen deportation proceedings?

 Immigration court proceedings are a difficult matter even for experienced immigration lawyers. Because the field of immigration law is constantly fluctuation, it is important to remain vigilant for new forms of relief. It is especially important to contact a removal defense attorney soon if you know of anyone that had a prior deportation case since many of these forms of relief are time sensitive and must be brought before the court in a prompt manner. If you know of anyone who may qualify, or someone who was ordered removed without attending their hearing, please contact one of our immigration lawyers at (770) 604-1603  to find out if we can help.

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