The “Stop-Time” Rule
The stop-time rule in immigration law – An individual who has been unlawfully present in the United States for a very long time may be eligible for a removal defense known as Non-LPR Cancellation of Removal. This defense is available under the Immigration and Nationality Act § 240A(b)(1). Part of this defense requires proof that the individual has been physically present in the United States for a continuous period of at least ten years. When ICE issues an NTA to the individual, the time in which they have resided in the U.S. “stops,” for purposes of determining how long the individual has been physically present in the U.S.
What is the Stop-Time Rule?
The “stop-time” rule describes when the timer for continuous physical presence or residence ends. As mentioned above, the government can stop the clock by serving an NTA (Notice to Appear) on the foreign national.
Pereira v. Sessions
This case was heard in the U.S. Supreme Court on April 23, 2018. It serves a very important purpose in immigration law, as this case decided how the stop-time rule comes into play during a Non-LPR cancellation of removal request. In Pereira, Wescley Pereira had overstayed his visa for a period of approximately six years. He was subsequently served with a Notice to Appear, which named the court that he had to report to, but did not state the date or time for when the proceedings were to occur.
Under §240A of the INA, the stop-time rule takes effect once the government has served an NTA on a foreign national. Pereira understood this, but also argued that the statute requires that the NTA must also specify the time and the place of the immigration proceedings. After much review, the Supreme Court agreed with Pereira and concluded that an NTA which fails to designate a specific time and place of a noncitizen’s removal proceedings cannot be considered a notice to appear, as it applies to the statutory definition provided in 8 U.S. Code § 1229.
Why is the Stop-Time Rule so Important?
If a person’s only removal defense is a Non-LPR Cancellation of Removal, then the time in which they must remain physically present in the United States is critical. Their presence in the United States must be continuous for ten years. Because having a properly issued NTA served on an individual stops the clock on their continuous presence, the decision rendered in Pereira allows the individual to contest their continuous presence timer when a defective NTA has been served on them.
Putting together an application that has the best chances for fighting a removal order can be time consuming and burdensome. Consider setting up a consult with an immigration attorney at Gilles Law, PLLC. You can reach us at 980-272-8438 at our office in Uptown Charlotte. We are here to assist with your inquiries.
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