The Government is Issuing NTAs with Fake Times and Dates
More than 1,000 immigrants showed up at courts across the United States on January 31, 2019 for hearings they’d been told were scheduled but didn’t exist. The U.S. Immigration and Customs Enforcement (ICE) has been placing so-called “fake dates” on Notices to Appear (NTAs), in an apparent attempt to comply with the Supreme Court’s recent decision in Pereira v. Sessions.
At issue in Pereira was whether an alien, who had been served with an NTA that did not contain the time and date of an initial removal hearing, was barred from applying for cancellation of removal for nonpermanent residents under INA section 240 (b)(1). Among other requirements, to be eligible for cancellation of removal under that provision, an alien must have been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of the application. An alien who is granted cancellation of removal receives lawful permanent residence.
INA Section 240 (d)(1), also known as the “stop-time rule”, contains special guidance relating to continuous physical presence. Specifically, for purposes of cancellation of removal under INA section 240A(b)(1), such physical presence is deemed to end, with some exceptions, when the alien is served a notice to appear under INA section 239(a).
Under that Section, an NTA shall 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, specifying the time and place at which the proceedings will be held.
However, Pereira’s NTA did not specify the time and place which his proceeding would be held. Instead, it ordered him to appear before an Immigration Judge in Boston ‘on a date to be set at a time to be set.’ The Supreme Court in Pereira held that a putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a notice to appear under INA section 239(a).
If Pereira were applied to all cases involving NTAs that do not include the time and place of the hearing, tens of thousands of NTAs would be invalid given the fact that, as the Court noted, almost 100 percent of the NTAs issued over the last three years omitted the time and date of the proceedings.
In an attempt to comply with Pereira v. Sessions, DHS began issuing NTAs with fake hearing dates and times. Without consulting with the immigration courts, DHS appears to have arbitrarily chosen fake dates and times for upcoming hearings in removal proceedings. On October 31, 2018, American Immigration Lawyers Association (AILA) members reported that “they were experiencing extraordinarily long lines outside of the following immigration courts across the country: Atlanta, Boston, Charlotte, Orlando, Chicago, Los Angeles, Dallas, Phoenix, Houston, Baltimore, and San Diego. Many of AILA members appeared at immigration court with their clients who were carrying Notices to Appear (NTA) issued by DHS with the fake date of October 31st, 2018”.
On January 31, 2019, the Executive Office of Immigration Review, the body that oversees all the immigration courts, issued the following public statement:
“[T]he Executive Office for Immigration Review (EOIR) was unable to proceed with hearings for some respondents who believed they had hearings scheduled on that date. In some cases, the cases had been rescheduled to another date, but the lapse in appropriations prevented the immigration courts from issuing new hearing notices far enough in advance of the prior hearing date. In other cases, EOIR did not receive the Notice to Appear (NTA) in a timely manner. Immigration proceedings do not commence until the Department of Homeland Security (DHS) has filed an NTA with an immigration court. Consequently, even if a hearing time and date has been provided to a respondent on an NTA, the hearing cannot go forward until the NTA is actually filed with an immigration court”.
All individuals who have been served an NTA with a hearing date and time on it are encouraged to contact EOIR’s Automated Case Hotline at 1-800-898-7180 for up-to-date information on case status. If no information is found concerning a correctly-entered alien registration number and the scheduled hearing is less than 10 calendar days away, the individual is encouraged to contact the DHS office that issued the NTA or the relevant immigration court.
The government’s implementation of the Supreme Court’s decision in Pereira v. Sessions continues to be chaotic and has caused nationwide confusion.