On June 21, 2018, the Supreme Court held in Pereira v. Sessions that a notice to appear (NTA) that fails to designate the time or place of the noncitizen’s removal proceedings is not a “notice to appear under 8 U.S.C. §1229(a),” and thus does not trigger the stop-time rule for purposes of cancellation of removal. EOIR has not published any public policy guidance specifying how immigration courts should interpret or apply Pereira. However, AILA member, Matthew Hoppock, obtained the internal EOIR implementation guidance via FOIA that showed Principal Deputy Chief Immigration Judge, Christopher A. Santoro sent an email on July, 11, 2017 advising immigration courts that “[t]he Department has concluded that, even after Pereira, EOIR should accept Notices to Appear that do not contain the time and place of the hearing. Accordingly, effective immediately, courts should begin accepting TBD NTAs.”
In the months following Pereira, some immigration judges applied Pereira to hold that NTAs that fail to identify the hearing time and place not only failed to trigger the stop-time rule, but also did not give the immigration court jurisdiction over the proceeding under 8 C.F.R. §1003.14(a). However, on August 31, 2018, the Board of Immigration Appeals issued Matter of Bermudez-Cota, 27 I&N Dec. 441, which held that an NTA that does not specify the time and place of an individual’s initial removal hearing can meet the requirements 8 U.S.C. §1229(a) if combined with a later hearing notice identifying that information. The BIA’s view is that the combination of an incomplete NTA and a subsequent hearing notice does vest jurisdiction in the immigration court.
The proper interpretation of Pereira, and the proper interpretation and validity of Bermudez-Cota, now rests largely in the federal courts of appeals. To assist those litigating these issues, Goodwin has volunteered to monitor and track federal court petitions for review that present issues related to Pereira and Bermudez-Cota. AILA members raising challenges to Bermudez-Cota, or other issues relating to the proper interpretation of Pereira, should fill out the following form (https://www.aila.org/pereiratracking). They will also be providing interested attorneys with a newsletter with updates concerning these issues. Special thanks to Goodwin for their time and work on this issue!