The Supreme Court speaks! – Niz-Chavez v. Garland, and what to do now

On April 29, 2021, the Supreme Court issued its decision in Niz-Chavez v. Garland, No. 19-863 (U.S. Apr. 29, 2021).

In Niz-Chavez, Justices Gorsuch and Barrett joined the Court’s historically “liberal” wing to rule in favor of Mr. Niz-Chavez, finding that he remained eligible for non-LPR cancellation of removal under INA 240A(b).  Justice Gorsuch, writing for the majority, held that despite Mr. Niz-Chavez being served with a Notice to Appear (NTA) and Notice of Hearing before he accrued ten years continuous physical presence in the United States, the stop-time rule at INA 240A(d) did not apply because his NTA did not contain the time, date, and location of his first removal hearing.  Relying almost exclusively on the text of the immigration statute, the Court held that service of a Notice of Hearing containing the time, date, and location of a noncitizen’s first removal hearing will not satisfy the stop-time rule, and that unless a compliant NTA is served upon a noncitizen, the noncitizen will continue to accrue continuous physical presence and may become eligible for non-LPR cancellation of removal.

In so holding, the Supreme Court resolved a circuit split, and implicitly vacated the Board of Immigration Appeals’ contrary holding in Matter of Mendoza-Hernandez and Capula-Cortes, 27 I&N Dec. 520 (BIA 2019).  Somewhat ironically (and while favorable for noncitizens), this decision by Justice Gorsuch technically goes against Attorney General Merrick Garland, who was nominated to the Supreme Court by President Obama but, because the Senate did not hold a hearing, did not receive the seat, which was eventually given to Justice Gorsuch.   Whether this decision will provide grounds for noncitizens to reopen or terminate their removal proceedings remains to be litigated.