Are you an immigrant or non-US citizen that received a document in the mail informing you that you may need to leave the United States or that you will not be allowed to re-enter if you leave the United States? If you received a document titled “Notice to Appear,” a recent Supreme Court case called Niz-Chavez v. Garland could provide you with a way to cancel that order through 42(B) Cancellation of Removal.

Prior to this year, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) allowed immigrants and non-US citizens the ability to go before an Immigration Judge and ask them to eliminate the removal order against them. If you have a removal order against you, the INA outlines three conditions necessary to qualify for cancellation of the removal order.

Put simply, these are three steps to try and overturn your deportation order:

1. Prior to service of the Notice to Appear, you have maintained continuous physical presence in the United States for ten (10) or more years, and you have been a person of “good moral character.”
2. You have not been convicted of an offense covered under sections 212(a)(2), 237(a)(2), or 237(a)(3) of the INA.
3. Your removal would result in “exceptional and extremely unusual hardship” to your spouse, parent, or child who is a legal United States citizen.

The second (2) prerequisite involves offenses dealing with criminal acts. If you engaged in criminal conduct, or have particular criminal convictions against you, then you would not be able to pass this requirement.

The third (3) qualification to apply for a cancellation of your removal order addresses those who may be harmed by your potential deportation. If your child, parent, or spouse would suffer “exceptional hardship” by your deportation, then you could have an argument that you need to be able to remain in the United States in order to take care of those loved ones. It is important to note that the harmed individual must be a genuine citizen of the United States. Typical examples of “exceptional hardship” include cases such as caring for a sick or disabled family member and being the sole financial provider for a family. If this condition is met, and you have no criminal record, then we turn back to that first (1) stipulation.

Before this year, non-US citizens had to live continuously in the United States for at least ten years to qualify to have their Order of Removal cancelled. This ten-year period stopped counting as soon as a person received their Notice to Appear. If they did not reside in the United States for the complete ten years before their NTA arrived, then they would not qualify to cancel their removal.

The Supreme Court’s decision in Niz-Chavez v. Garland changes the first requirement.

On April 29, 2021, the Supreme Court ruled that each Notice To Appear must contain the exact time and date of the hearing, or else the entire NTA would be deemed invalid. If the NTA contains phrases like “a date to be set” or “a time to be set” as the details of the person’s upcoming hearing before an Immigration Judge, then the countdown towards an immigrant’s or non-US citizen’s ten years of continuous living in the United States does not stop. This ticking clock ends when a non-US citizen leaves the United States or when they receive a valid NTA. A valid NTA must contain the exact date and time of the hearing before the Immigration Judge (in addition to the other required routine information).

Question 1: What do I do if my NTA contains a specific date and time for my hearing before an Immigration Judge?

Answer: The Supreme Court’s ruling in Niz-Chavez v. Garland does not impact your case. You must appear at that date and time.

Question: What do I do if my NTA does not state a specific date and time for my hearing before an Immigration Judge? (Like the example above)

Answer: Call us! Although we cannot guarantee any potential outcome without first meeting you and learning about your specific circumstances, we can sit down and discuss your best options moving forward. If you are a person in good-standing with the United States (for example, you do not have a criminal record and you consistently pay your taxes on time), you have a family member who is a US citizen and would suffer exceptional hardship if you were to be deported, and you have lived in the United States for at least ten consecutive years prior to receiving a valid Notice to Appear, then you may be eligible to cancel your removal order.