People in immigration court often call it "42B," after the number on the application form. The legal name is cancellation of removal for certain nonpermanent residents, under section 240A(b)(1) of the Immigration and Nationality Act. In my professional opinion it is one of the strongest defenses against deportation for people that qualify. It is not something you file with USCIS. It is relief you ask an immigration judge to grant after the government has already placed you in removal proceedings.
Almost every one of these cases runs into the same document: the Notice to Appear, or NTA. That is the charging paper the Department of Homeland Security uses to start the case. Whether it was written correctly can decide whether your ten-year clock ever stopped running. This article explains what the statute requires, what the Supreme Court has held, and what a defective NTA does and does not do.
Key takeaways
- Cancellation of removal under INA § 240A(b)(1) has four elements — ten years of continuous physical presence, good moral character, no disqualifying conviction, and exceptional and extremely unusual hardship to a qualifying relative.
- The stop-time rule ends your accrual of presence when a compliant notice to appear is served, so a defective NTA can mean the clock kept running.
- Pereira v. Sessions has not been overruled, and Niz-Chavez v. Garland strengthened it by requiring a single complete document.
- An NTA that names the immigration court but leaves the date and time blank is still noncompliant under Board precedent.
- The objection is time-sensitive — under Matter of Fernandes it is generally timely only if raised before the close of pleadings.
What the statute actually requires
The Supreme Court restated the four criteria in Wilkinson v. Garland: continuous physical presence, good moral character, the absence of specified criminal bars, and a showing that removal would cause exceptional and extremely unusual hardship to a qualifying relative. In plain terms:
- Ten years of continuous physical presence in the United States immediately preceding the date of the application.
- Good moral character during that period. Good moral character questions are often more complicated than people expect.
- No conviction of an offense described in INA § 212(a)(2), § 237(a)(2) or § 237(a)(3).
- Exceptional and extremely unusual hardship to a United States citizen or lawful permanent resident spouse, parent or child. Hardship to the applicant alone does not satisfy this element.
Meeting all four makes a person eligible. It does not make a grant automatic — the decision remains discretionary with the immigration judge. The application carries a fee, and filing mechanics and fees change; confirm them against current EOIR instructions rather than against anything you read online.
How the ten-year clock is built — and how it breaks
"Continuous physical presence" is a legal term, not a description of how long your life has been here. Subsection (d) of 8 U.S.C. § 1229b contains the special rules, including rules on departures. A single absence of more than ninety days, or absences adding up to more than one hundred eighty days, breaks continuity. The ten years must also run in the period immediately before the application.
Presence is usually shown through ordinary life records — school, medical, employment, tax, lease, religious and remittance records among them. No particular document guarantees anything; what matters is the record as a whole. A departure made under threat of removal, or a formal turnaround at the border, raises separate legal questions that depend heavily on the paperwork the government created at the time.
The stop-time rule
Under INA § 240A(d)(1), the period of continuous physical presence is deemed to end when the person is served a notice to appear under § 239(a), or when the person commits an offense referred to in § 212(a)(2) that renders them inadmissible or removable — whichever comes first. The second trigger is one reason criminal cases and immigration status are so tightly linked, and why the exact words of a plea matter more than the sentence served.
The entire Pereira line of cases exists because of that one subsection. If the NTA never triggered the stop-time rule, presence may have continued to accrue — possibly past ten years.
Is Pereira v. Sessions still good law?
Yes. In Pereira v. Sessions (2018) the Supreme Court concluded that a notice to appear which fails to designate the specific time or place of the removal proceedings does not trigger the stop-time rule. The word OR here is extremely important because some NTA's name a place but not a date or time for the hearing.
Three years later, Niz-Chavez v. Garland (2021) rejected the government's two-step workaround. To trigger the stop-time rule, the government must serve a single document containing all of the hearing information specified in 8 U.S.C. § 1229(a)(1). A later-issued hearing notice does not cure the omission. Before Niz-Chavez, the Fifth and Sixth Circuits had agreed with the Board that a subsequent hearing notice cured the defect, while the Third and Tenth held otherwise; the Supreme Court resolved that split in favor of the single-document rule. Neither Pereira nor Niz-Chavez has been overruled.
An NTA that gives the courthouse but no date or time
This is the most common version of the problem, and the answer is that such a notice is still noncompliant. Section 1229(a)(1)(G)(i) requires the time and place. Pereira's language is disjunctive — time or place missing is enough.
In Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022), the notice named the Boston Immigration Court but ordered the respondent to appear at a date and time "to be set." The Board treated that document as a noncompliant notice to appear. Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024), likewise addresses an NTA that lacks the date and time of the initial hearing. Naming the courthouse does not satisfy the statute.
What a defective NTA does not do
This is where expectations most often run ahead of the law. Three Board decisions mark the limits.
- It does not strip the court of jurisdiction. Under Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021), an NTA that does not specify time and place does not deprive the immigration judge of jurisdiction, and remains a charging document as defined in 8 C.F.R. § 1003.13.
- It does not survive a late objection. See Fernandes, above.
- It cannot be patched with a Form I-261. In Aguilar Hernandez the Board held that DHS cannot cure a date-and-time-deficient NTA that way, because 8 C.F.R. § 1003.30 permits an I-261 only to add or substitute charges or factual allegations — and because of Niz-Chavez.
- DHS serves the NTA. The government issues the charging document and files it with the immigration court.
- Master calendar hearing. The judge takes pleadings to the allegations and charges.
- Objection, if there is one. Any objection to a noncompliant notice is generally raised at this stage, before pleadings close.
- Relief applications filed. The cancellation application and supporting evidence go to the immigration judge on the schedule the court sets.
- Individual hearing. Testimony and evidence on each element, followed by the judge's decision.
Campos-Chaves is a different question
People read about Campos-Chaves v. Garland (2024) and assume Pereira was weakened. It was not. Campos-Chaves concerned rescission of in absentia removal orders. The Court held that because each noncitizen had received a proper § 1229(a)(2) notice for the hearing he missed, he could not obtain rescission on defective-notice grounds. That is a separate statutory question from the stop-time rule.
| Case | Question presented | Holding |
|---|---|---|
| Pereira (2018) | Does an NTA missing time or place trigger the stop-time rule? | No. |
| Niz-Chavez (2021) | Can a later notice supply the missing information? | No — one complete document is required. |
| Campos-Chaves (2024) | Can a missed hearing be reopened on defective-notice grounds after a proper hearing notice? | No — but this does not touch stop-time. |
So a defective NTA may leave the ten-year clock running and still leave a person without a defective-notice route to reopen a hearing they missed.
Hardship, discretion, and what Wilkinson changed
Hardship is the usual battleground. The standard applied in Wilkinson requires showing that the qualifying relative would suffer hardship substantially different from or beyond that ordinarily expected to result from removal. Evidence tends to fall into familiar categories — medical, educational, caregiving and country-conditions — but no category predicts a result.
Wilkinson v. Garland (2024) held that the hardship determination is a mixed question of law and fact reviewable under 8 U.S.C. § 1252(a)(2)(D), rather than an unreviewable discretionary judgment. That matters for what a court of appeals can look at later.
The rest of the picture
INA § 240A(e) limits grants of cancellation and adjustment under that section to 4,000 people each fiscal year, which affects how and when decisions issue. The statute also contains a separate special rule for certain spouses and children who have been battered or subjected to extreme cruelty, using a shorter presence period and a different hardship standard. Section 240A(c) lists categories of people who are statutorily ineligible altogether.
Fees, forms, filing procedures and court scheduling change frequently; confirm them with EOIR and USCIS directly. Everything above is general information about immigration law, not advice about any particular case. Facts decide these cases, and facts are established in a conversation — which is also how our removal defense practice begins, before any fee is quoted.
Frequently asked questions
My NTA had no hearing date. Does my case get dismissed?
Not automatically. Under Matter of Arambula-Bravo, a notice missing time and place does not deprive the immigration judge of jurisdiction, and it is still a charging document. The defect goes to the stop-time rule and to a claim-processing objection, not to the court's power to hear the case.
The NTA listed the immigration court's address but said the date and time would be set later. Is that enough?
Board precedent treats that document as noncompliant. In Matter of Fernandes the notice identified the Boston Immigration Court with a date and time "to be set," and the Board did not treat it as a compliant notice to appear.
Did Campos-Chaves overrule Pereira?
No. Campos-Chaves decided when an in absentia removal order can be rescinded for defective notice. It did not disturb Pereira or Niz-Chavez on whether a defective NTA triggers the stop-time rule.
When does the objection to a defective NTA have to be made?
Under Matter of Fernandes it is generally timely if raised before the close of pleadings. Because it is treated as a claim-processing rule, it can be forfeited if it is not raised in time.
Who counts as a qualifying relative for hardship?
Only a United States citizen or lawful permanent resident spouse, parent or child. Hardship to the applicant personally does not satisfy the element, however severe it is.