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.
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.
In the past few weeks Immigration and Customs Enforcement has been arresting aliens as they are released or exiting District Court buildings. No one really knows why this is happening now. It might be a new computer resource coming on-line, it might be a response to Lunn v. Commonwealth, trying to demonstrate that ICE’s power is stronger than the Massachusetts Supreme Judicial Court, no one really knows. The one thing that is clear is that it increases the pressure on those present in the US without authorization when they have to appear as a defendant in a criminal matter, no matter how minor.
Many minor crimes – driving with no license for example – usually end with a fine or a payment of court costs. The presence of ICE ready to arrest the alien on immigration matters make a routine court appearance very high stakes indeed. For those who have no plan or available immigration relief, it will likely end with deportation to their home country.
A plan is sometimes possible based on long term presence in the United States coupled with a wife or child who is a US Citizen or Permanent Resident. Sometimes a reasonable and well-founded fear of return to one’s home country is a possible ground for relief. There are a few other bases of relief to stay in the United States. The most important thing is to start planning now! Make an appointment with a licensed attorney and build a relationship now!
Michael Dougherty of the US DHS testified at a Senate hearing. During his testimony, in addition to setting out Trump administration support for status that would lead to eventual citizenship for DACA and other childhood arrivals (later walked back), Below is a quote from his testimony which seems insightful as to the Administration immigration agenda:
During the hearing, Dougherty said the administration’s immigration priorities include border control, better vetting, reducing visa overstays, reforming non-immigrant business visas and establishing a merit-based system that favors skilled immigrants. He said the administration also wants to expand its ability to quickly remove people who enter illegally and do not claim asylum.
Reuters, Yeganeh Torbati and Richard Cowan, 03-Oct-2017,
Again, it is very clear that those with a problematic status in the United States, should seek licensed legal counsel to establish a plan which will advance their goals.
This is a link to Immigration Law Week Q & A on DACA (best I have scene).http://discuss.ilw.com/content.php?8637-News-Frequently-Asked-Questions-Rescission-Of-Deferred-Action-For-Childhood-Arrivals-(DACA)
Well, he did it.
DACA is going to fade away across the next maybe 30 months.
Read together, the Press Release Press Release_DACA_Sept 5 17 (1) and Memorandum on Rescission Of DACA _ Homeland Security say it is over. They also say it is going to be a long good bye.
As of Today: 09/05/2017
No more initial requests for DACA.
No more Advance Parole for those with DACA. Pending AP applications will be administratively closed and fees refunded.
The applications that are pending for initial grant, as of today (09/05/2017), will be adjudicated.
For the next 6 months, until March 5, 2018, renewals will be adjudicated. Pending initial applications and renewals that are granted will apparently be good for the full 2 years of protection against removal. So the final renewals will not expire for up to 30 months from today.
Current DACA recipients, and those with pending renewal applications will have 6-30 months to explore other forms of relief from removal for which they may be eligible. The time to start planning for life after DACA is now.
I will try and update this item as more information becomes available.
USCIS will begin to interview some classes of immigrants where, as a rule, the interviews were previously waived.
It appears that Asylees, Refugee Family Members will now require interviews before getting a their green card.
Those requiring interviews will include Employment Visa holders seeking to adjust.
There is not a release of source documents for the new policy and the news articles seem to diverge in their limits. As an example, it appears that those seeking to “update” their visa may require a interview. Updating may include COS (Change of Status) applications of other routine updates.
Not mentioned was if there would be additional interviews for Fiance (K-1) visa Adjustments.
The News Stories can be found at:
The Department of Homeland Security has started the process for suspending the issuance of visas to citizens and nationals of 4 countries, including Cambodia. A rarely used law, section 243(d) of the Immigration and Nationality Act, authorizes the Secretary of State to suspend the issuance of visas to citizens of countries which refuse to accept returning citizens of that country who were ordered deported.
Under INA Section 243(d), the process begins with the Secretary of Homeland Security notifying the Secretary of State that a particular country has refused to accept its citizens who have been ordered deported. The Secretary of State then begins the process for suspending visa issuance. The law gives the Secretary of State discretion on how to implement the suspension. The Secretary may suspend issuance of immigrant visas (visas to come to the U.S. as a permanent resident), or non-immigrant visas (visas to come to the U.S. temporarily, such as student visas, business visas or visitor’s visas) or both.
The suspension does not take place immediately. “We follow a standard process to implement a visa suspension as expeditiously as possible in the manner the Secretary determines most appropriate under the circumstances to achieve the desired goal,” the State Department said in a statement. “That process includes internal discussions with, and official notification to, affected countries. We are not going to get ahead of that process.” During any period that visa issuance is suspended, the consular posts in the affected countries should continue to receive cases, and to adjudicate cases. Consular officers will explain the suspension of issuance to the applicants. Visa fees will not be refunded. Once the suspension is lifted, cases that were approved will be reviewed again to ensure the applicant is still eligible for the visa.
This law has only been used twice. In 2001, it was used against Guyana and in 2016 it was used against The Gambia. In both cases, the Secretary of State decided to suspend only the issuance of visas to officials of the government in question and their families. Immigrant and non-immigrant visas for ordinary citizens of the countries were not affected. The Secretary of State has given no indication as to how he intends to implement the law against the 4 countries who are the subject of the current DHS request.
For many years now, employers have been required to have the new employee provide proof of lawful employability after the commencement of employment. A Green Card, an EAD (Work Card) an I-94 showing Asylum or Refugee status are just a few ways an alien can prove they can work lawfully. Anyone with a U.S. Drivers License and an Unrestricted Social Security card can successfully claim that they are authorized to work in the United States.
There have been rumors and information in the alien community for many years that one of the easy ways to work was to claim to be a U.S. Citizen and present a Social Security Card and a Drivers License. In years past, there have been may social security cards issued to aliens and many drivers licenses issued. I assume that many have done this to be able to work in the United States.
Since the 1990s, making a claim of U.S. Citizenship to gain an immigration benefit has been an offense that makes you Deportable and Inadmissible for life. There are many ways to be lawfully employed in the United States and the requirements are covered in the M-374 which is available on the USCIS web site.
If you are faced with producing an I-9 for USCIS or being denied a benefit, please consider talking to legal counsel before supplying it. But remember, in today’s environment, many employers will give out even the most private employee information to someone from USCIS on the telephone.
 Deportable under INA § 237(a)(3)(D).
 Inadmissible under INA § 212(a)(6)(C)(ii).
 Some narrow exceptions were added in 2000.