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Niz-Chavez v. Garland: New Defense Against Deportation

Knowing and asserting your rights is something we can’t stress enough in any legal situation. The same is true for immigrants who are facing removal proceedings. We could speak endlessly about immigrants facing removal proceedings and the rights guaranteed to them throughout the process.

These guaranteed rights and whether procedures were properly carried out are a foundation for a great defense against removal. Today, we’re going to take a closer look at one of those defense strategies based on a recent Supreme Court Ruling. This decision is going to affect everybody who is facing removal proceedings.

Removal Proceedings?

Removal proceedings—you probably know them better by the term deportation. This term was changed from deportation to removal proceedings, likely in an attempt to sound more friendly and less severe.

So what are removal proceedings, exactly?

Any instance in which an undocumented person is apprehended by immigration and detained, whether it be due to an arrest for an alleged crime committed or any other violation, removal proceedings is the next step. For removal proceedings to lawfully begin, immigration must provide the apprehended undocumented person with a Notice to Appear document (“NTA” for those familiar with this process).

If you’re not familiar with NTAs, let’s get acquainted now. NTAs have several items of note that contain important details, such as your name, date of birth, country of origin, and the alleged crime for which this person is being held. The note on the NTA that we want to look at today is one of the most important: court information.

The court location and date and time of the proceedings should be listed on your NTA. Now, we say should because the problem is with it not always being there. As a matter of practicality over the past 20 years, immigration has been flexible with that requirement. Many NTAs are issued without that pertinent information, and therein lies the problem.

They’d often say that the relevant court information would later come in the mail. But, that’s an incomplete document, right? Right!

 So, what’s to be done about incomplete NTAs?

Well, in 2018, the Supreme Court heard this exact argument about the unlawful distribution of incomplete NTAs in a case called Pereida. In the Pereida Decision, the Supreme Court concluded that an NTA missing those required court dates is deemed defective notices. Good news, right?

 Wrong.

Remember, this was in 2018 when we were under the Trump Administration, which had a reputation for being unreasonably harsh and playing fast and loose when it came to immigration. The Trump Administration and its Attorney General, Jeff Sessions, did not find the Pereida Decision very pleasing, so they circumvented the Supreme Court’s decision by reinterpreting the decision through the Board of Immigration Appeals, an alternative to Supreme Court immigration. So, this seemingly black-and-white decision became rather gray, but that’s where the Niz-Chavez v. Garland ruling comes into play.

Niz-Chavez v. Garland

Here we are, two and a half years later, and the Supreme Court rules on this issue again, essentially reconfirming what we know to be relatively straightforward: an incomplete NTA, one issued without all information completed, is defective. But what does that mean, and why does that affect so many people?

Remember how we mentioned that immigration has routinely issued incomplete NTAs over the last years? Everyone who received an incomplete NTA is deemed defective. Therefore, you now have a few new defense strategies against their pending removal.

It’s imperative to speak with a well-practiced immigration attorney because they could convince a judge to toss out your case entirely if your NTA was defective.

What’s more? The additional defense of continued accumulating time is an option. Cancellation of removal requires the person to have been in the U.S. for a minimum of 10 years. So, because that NTA document is deemed defective, it didn’t stop the accumulation of time here for the undocumented person to whom it was issued.

 In short: a defective NTA could erase removal. 

At Peek & Toland, we’re pretty excited about this news and the possibilities it makes available for our clients and the immigrant community. If you are in removal proceedings or need to know how this ruling might give you additional defenses and a chance to stay in the U.S., please reach out to one of our trusted immigration attorneys. We’d love to talk to you about your options.

Continue to follow along with us on social media as we continue to cover the latest immigration news that affects you.

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