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USCIS Expands Implementation of NTA Policy and DOL Implements New LCA

main:USCIS may issue a Notice to Appear (NTA) based on the denial of certain humanitarian applications and petitions as part of its continued implementationof the agency’s new NTA policy

Supreme Court rules on defective Notice to Appears

In Pereira v. Sessions, __ U.S. __, 138 S. Ct. 2105 (2018), the U.S. Supreme Court held that service of a putative charging document that does not specify the time and place of removal proceedings does not meet the statutory definition of a Notice to Appear (NTA) under 8 U.S.C. § 1229(a) and, therefore, does not cut off a noncitizen’s ability to accrue the time in the United States required to qualify for cancellation of removal. Although the government is attempting to cabin the ruling’s impact to the cancellation of removal context, practitioners can apply the rationale underlying the Court’s interpretation of § 1229(a) to a wider variety of challenges. Furthermore, practitioners can file motions to reconsider and/or reopen prior removal orders predicated on defective NTAs within 30 to 90 days of the decision or as soon as practicable after learning of the decision.

Brian D. Lerner (blerner@californiaimmigration.us) USCIS and the Notice to Appear

USCIS is authorized to issue Notices to Appear (NTAs) under INA §§103(a), 239(a) and 8 CFR §§2.1, 239.1.

Serving the NTA

Where the Department of Homeland Security seeks to re-serve a respondent to effect proper service of a notice to appear that was defective under the regulatory requirements for serving minors under the age of 14, a continuance should be granted for that purpose. Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013), followed.

Stop Time rule applies moment NTA is served

The Ninth Circuit upheld the Board of Immigration Appeals, holding that the failure of a Notice to Appear (NTA) to specify the date and location of a removal hearing has no effect on the stop-time rule. Accordingly, the court found that the petitioner, who had not accrued the requisite period of continuous physical presence by the time he was served with the NTA in his removal proceeding, was statutorily ineligible for cancellation of removal.

Physical Presence continues to accrue if NTA not served

The BIA sustained the respondent’s appeal and remanded, holding that a notice to appear (NTA) that was served but never resulted in removal proceedings does not have “stop-time” effect for purposes of establishing eligibility for cancellation of removal pursuant to section 240A(d)(1) of the Immigration and Nationality Act.

The Notice to Appear and Removal Proceedings

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