Stop Time Rule, Pereira v. Sessions, Impact on Immigration Cases 15-Jul-2018

Stop Time Rule, Pereira v. Sessions, Impact on Immigration Cases

First, for all you non-lawyers with immigration rouble looking at this, please talk to a lawyer. A knowledgeable lawyer will best preserve your rights and abilities and be your guide.

Background
Once in the United States, it is not possible except at or near boarders to have a government worker to tell you to just leave. Most everyone must be brought before the Immigration Court and an Immigration Judge . When one gets in trouble with Immigration, if the government wants them to leave the United States, they must get an order from the Immigration Court and, if appealed, the Board of Immigration Appeals (BIA) must affirm.
To begin the process, the government must serve a special document called a Notice to Appear (NTA) on the alien. Currently, once that document is served on the Alien it goes to the Trial Attorney Unit (TAU) (DHS Employees) and then they file it with the Immigration Court. The Court does not have Jurisdiction over the matter until the NTA is filed with the Immigration Court. The usual flow after the filing is there is a Master Calendar Hearing (MC) and eventually an Individual Calendar Hearing (IC). An alien that is present at the IC that loses, can appeal to BIA as a matter of right. Further appeal, if BIA does not grant relief to the alien or remand to the Immigration Court is with the relevant Federal Circuit Court. If the alien is still dissatisfied, they may petition the US Supreme Court for Certiorari, the Supreme Court taking a case depends on whether they accept the case or not. There is no further appeal, what the Supreme Court says is the law of the land. Pereira was an 8:1 decision of the Supreme Court for the alien.
Pereira was narrowly argued and briefed before the BIA and the Circuit Court as a Stop Time rule case. Stop Time says when certain things happen, an alien stops accruing good time toward an application for relief. Non Permanent Resident (LPR) Cancellation of Removal requires, along with other things, 10 years of good time. This stops when the NTA is served or if the alien commits a criminal act.
In Pereira, the Court said that the Stop Time rule was not triggered unless the NTA was statutorily proper. The particular area the Court pointed to was the Time and Place notation at the bottom of the NTA. No time and place, no stop time trigger. The BIA is an expert administrative court that speaks for USCIS, so the 1st Circuit used a doctrine called Chevron deference to say “since the statute is ambiguous, the expert court decision will prevail.” The Supreme Court the statute is not ambiguous and therefor the NTA is not valid and it does not trigger the Stop Time rule.