© Lawyer Farhad Sethna, 2019
in the Matter of Sylvestre Mendoza-Hernandez and Rufina Capula-Cortes 27 I & N Dec. 520 (BIA 2019), issued on May 1, 2019, the BIA confuses the Supreme Court decision in Affair of Pereira against meetings138 p. 2105 (2018).
Short, Matter of Pereira If a foreigner did not receive a notice stating the date, time and place of the hearing before the Immigration Court, such a notice would be flawed in order to prevent the "Stop time" rule trigger a hearing that would exclude foreigners from requesting removal of the distance. That's all the Supreme Court in Pereira v. Sessions,
Given the current anti-immigration character of the Trump administration and the increasing politicization of the BIA, it is not surprising that the BIA continues to pursue this very clear judgment. In his recent incarnation of Pereira, a split BIA (9: 6) took place Mendoza-Hernandez / Capula-Cortes, 27 I & N Dec. 520 (BIA 2019), the BIA found that the decision of the Supreme Court in Pereira is used only in cases where not only the NTA was broken as described in PereiraBut since the foreigner's entry into the United States, more than ten years had passed before the immigration court issued a new hearing announcement (more on that later) in which it communicated the alien's date, time, and place of entry to the Immigration Court.
The BIA has deliberately confused the provisions on "publication of the show" with the provision of "publication of the show". In essence, the BIA stated that the "termination obligation" had been fulfilled by the service of a hearing notice issued by the Immigration Court.
A small background is attached here:
The notice is issued by the Department of Homeland Security to a foreigner who implements her in a deportation procedure. This notice is not issued by the court. It is exhibited by the DHS. This notice contains a field for the date, time and place of the hearing of the Immigration Court. This date and time are usually left blank since it is then for the Immigration Court to produce an actual "Hearing Notice" informing the respondent of the date and time of the Hearing at the Immigration Court.
The US Supreme Court has in Pereira v. Sessions that a reference that did not contain the date and time of the actual appearance of a respondent before the Immigration Court was a poor indication. Therefore, such a deficient notification could not trigger the "stop-time" rule, which prevents a respondent from applying for cancellation of removal for non permanent residents, if in the United States the required 10 years prior to notification of a "notice to appear".
In contrast, a "Notice of Hearing" is a notice of immigration court sent to the last known address of the foreigner (usually the address in the notice of the date and time of the foreigner) Hearing. The hearing announcement is not issued by the Ministry of Internal Security, but by the Immigration Court.
In Mendoza-Hernandez / Capula-CortesThe BIA decided to turn the clear meaning of these terms upside down and instead stated that a simple delivery of a "hearing announcement" to the foreigner also triggered the stopwatch.
The decision of the BIA is clear and obviously wrong. Despite the intricate gymnastics of the BIA trying to justify its decision, the decision is simply a matter of political expediency: in this distorted view of immigration under the Trump administration, even the BIA was co-opted as a (partially willing) co-founder of immigration policy the Trump government. However, this decision goes a long way: it not only abolishes the rule of law, as laid down in the statutes and regulations, but also violates the binding supreme court Pereira v. Sessions Decision. Such a breathtaking leap into jurisdiction is scary for the future of immigration tribunals. If the immigration courts can be bowed to the extent that they seek to create exceptions Pereira v. SessionsIt then follows that other decisions and regulations will soon be mowed on the slippery slope of the BIA's misguided decision-making process.
Until there is a split within the circles that causes the matter to go to the Supreme Court, Mendoza-Hernandez / Capula-Cortes thing will remain in force. It is up to the seasoned immigrant to question the improper maintenance of this case at every step of the way, and to lay the foundations for a successful appeal to the Circuit Courts and then again for possible disputes before the Supreme Court.
For specific decisions about how Mendoza-Hernandez / Capula-Cortes If you would like to work within the constituency of a particular respondent, please refer to the current case law (not the BIA decision) to determine whether the "stop-time" rule still applies or does not apply to a respondent's circle.
For more information on this very interesting topic, stay tuned!
© Farhad Sethna, Lawyer, 2019
Farhad Sethna has been practicing law for over 25 years. He received his JD in 1990 and his MBA from the University of Akron in 1991. Since 1996, he has also been an Associate Professor of Immigration Law at the University of Akron, School of Law, Akron, Ohio, where he authored and used his own immigration textbook. Attorney Sethna is a frequent speaker at training seminars and training seminars on various immigration issues. His practice is limited to immigration and small business. He has received awards for outstanding teaching and volunteer service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and immigration tribunals across the country. As a private pilot, Farhad's goal is to fly to each of Ohio's 88 County Airports. Our number is: (330) -384-8000. Please send your general immigration questions to [email protected] We will try to answer as many questions as possible.
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