Notice to Appear with no time and place for Removal Proceedings is Invalid

“Symbol of law and justice in the empty courtroom, law and justice concept.”

In its June 21, 2018, decision, the Supreme Court reversed the First Circuit Court of Appeals. Justice Sotomayor, writing for the 8-Justice majority, began her opinion by stating what the majority viewed as the narrow question in the case and the simple answer:

If the Government serves a noncitizen with a document that is labeled “notice to appear,” but the document fails to specify either the time or place of the removal proceedings, does it trigger the stop-time rule? The answer is as obvious as it seems: No. A notice that does not inform a noncitizen when and where to appear for removal proceedings is not a “notice to appear” and therefore does not trigger the stop-time rule.

The Supreme Court stated that the cancellation of removal stop-time rule provides that “any period of . . . continuous physical presence” is “deemed to end . . . when the alien is served a notice to appear. The Court concluded: “Thus, based on the plain text of the statute, it is clear that to trigger the stop-time rule, the Government must serve a notice to appear that, at the very least, ‘specif[ies]’ the ‘time and place’ of the removal proceedings.”

The Supreme Court observed that “in the case of any change or postponement in the time and place of [removal] proceedings,” the Government shall give the noncitizen “written notice . . . specifying . . . the new time or place of the proceedings.”  The Supreme Court stated: “By allowing for a ‘change or postponement’ of the proceedings to a ‘new time or place,’ presumes that the government has already served a ‘notice to appear’ that would need to be amended with the new time or place of the proceedings.

Finally, the Court stated that common sense supported its ruling. The Court stated: “If the three words ‘notice to appear’ mean anything in this context, they must mean that, at a minimum, the Government has to provide noncitizens ‘notice’ of the information, i.e., the ‘time’ and ‘place,’ that would enable them ‘to appear’ at the removal hearing in the first place.”

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