Travel Ban and Pereira

As you may have heard, the Supreme Court recently decided on two important cases that have significant immigration consequences.

The first is the infamous travel ban that President Trump issued soon after he assumed power. The travel ban was issued under the pretext that it was not possible to properly “vet” the identity of the applicants and therefore they should be banned. As you may recall, this caused a lot of turmoil at the airports and instigated a lot of demonstration all over. It had gone through two versions and the third version added a few more non-Muslim countries. The Supreme Court affirmed that the President’s powers in the Immigration and Nationality Act are broad and his words demonstrating any animus or bias on the trail should not be relevant. This was a close 5-4 decision largely around party lines. The countries affected are Yemen, Somalia, North Korea, Syria, Venezuela, Libya and Iran.

The second decision is one that many immigration practitioners are excited about and has potential to change the direction of many cases. By way of background, this case involves a Brazilian citizen who entered the United States on a tourist visa in 2000. In 2006 he was served with a Notice to Appear which is the charging document used to start the case in immigration court. The Notice to Appear has a place where the date and time is supposed to be clearly marked and yet over the last ten plus years that is usually marked “to be determined”. In Mr. Pereira’s case, this was a clear issue because he was applying for a relief called Cancellation of Removal which required he have 10 years of physical presence in the United States before the start of removal proceedings. He argued that the Notice to Appear was invalid and the case went all the way up to the Supreme Court. In an 8-1 astonishing decision the Court held that the Notice to Appear was invalid, but it did not outright dismiss the case. Since then, there has been mixed results with this decision. That still means that the government can issue new Notices to Appear. It is our opinion that it is worth filing a motion in three situations

  1. Those who have been ordered removed and if the case is re-opened have a relief available to them;

  2. Those that could use time if the matter is terminated

  3. Those that would have additional forms of relief like Mr. Pereira if a new NTA is issued. These are the more persuasive cases.

If you feel this can help you, or if you know others that could benefit, please set up a consultation at our office to review the matter.