Matter of Cabrera-Fernandez, 28 I&N Dec. 747 (BIA 2023), is a Board of Immigration Appeals decision addressing when a defective Notice to Appear can still trigger the stop-time rule that cuts off a noncitizen’s accrual of continuous physical presence for cancellation of removal.1U.S. Department of Justice. Matter of Cabrera-Fernandez, 28 I&N Dec. 747 (BIA 2023) The decision has been read as allowing a two-step notification process, where an incomplete initial Notice to Appear is followed by a hearing notice supplying the missing date and location, to stop the clock. That reading sits in tension with recent Supreme Court precedent, and the tension is what makes the case matter for anyone whose eligibility for cancellation turns on the timing of when their physical presence clock stopped.
What the Case Is About
To qualify for non-LPR cancellation of removal under INA § 240A(b)(1), an applicant must show 10 years of continuous physical presence in the United States immediately before filing. Under INA § 240A(d)(1), that period ends on whichever of two events happens first: service of a Notice to Appear under INA § 239(a), or commission of a disqualifying crime.2Office of the Law Revision Counsel. 8 USC 1229b – Cancellation of Removal; Adjustment of Status Practitioners call this the stop-time rule.
The date the clock stops is often decisive. Someone with eight years of presence when a valid Notice to Appear is served falls short of the 10-year threshold, no matter how long they remain in the country afterward. The narrow legal question in Cabrera-Fernandez is whether a Notice to Appear that omits required information can nonetheless stop the clock when a later document fills in the gap.
What the Notice to Appear Must Contain
Federal law requires a Notice to Appear to include the nature of the proceedings, the legal authority, the conduct alleged, the charges and statutory provisions, information about the right to counsel, instructions to provide and update a mailing address, and the time and place of the hearing.3Office of the Law Revision Counsel. 8 USC 1229 – Initiation of Removal Proceedings For years, the government has routinely issued Notices to Appear that leave the hearing date and location blank or list them as “to be determined,” providing that information later in a separate hearing notice from the immigration court.
Whether those incomplete documents actually trigger the stop-time rule became the flashpoint in two Supreme Court cases that Cabrera-Fernandez now has to be read against.
The Supreme Court Backdrop: Pereira and Niz-Chavez
In Pereira v. Sessions, 585 U.S. 667 (2018), the Supreme Court held that a document that fails to specify the time or place of the removal hearing is not a valid “notice to appear under section 1229(a)” and does not trigger the stop-time rule.4Supreme Court of the United States. Pereira v. Sessions, 585 U.S. 667 (2018) The government responded by arguing that a later hearing notice supplying the missing information could combine with the original document to satisfy the statute.
The Supreme Court rejected that argument in Niz-Chavez v. Garland in 2021, holding that the stop-time rule requires a single document containing all the information listed in the statute.5Supreme Court of the United States. Niz-Chavez v. Garland, 593 U.S. ___ (2021) Two documents pieced together do not qualify. The rule the Court articulated was a bright line: one complete document, or nothing. For noncitizens who had received defective notices years earlier, the ruling meant their clocks may never have been stopped, potentially opening the door to cancellation of removal.
What the BIA Held in Cabrera-Fernandez
After Niz-Chavez, the Board of Immigration Appeals had to reconcile its prior approach with the Supreme Court’s single-document requirement. Cabrera-Fernandez is one of the decisions it issued in that evolving area.1U.S. Department of Justice. Matter of Cabrera-Fernandez, 28 I&N Dec. 747 (BIA 2023) The case has been described as endorsing a two-step notification process: the government issues an initial incomplete Notice to Appear, later sends a hearing notice with the missing date and location, and the clock stops when the second document is served. This concept is sometimes called perfecting service.
That framing deserves careful scrutiny. The Supreme Court’s holding in Niz-Chavez was unambiguous that only a single complete document triggers the stop-time rule. A BIA interpretation allowing two documents to accomplish what the Supreme Court said requires one would face serious challenges on appeal. Several federal circuit courts have followed Niz-Chavez closely and held that only a compliant single-document Notice to Appear or the commission of a disqualifying crime can activate the stop-time rule. Whether an immigration judge in your case will apply Cabrera-Fernandez, and whether a federal circuit court in your jurisdiction will uphold that application, is not a settled question.
What This Means for Your Cancellation Case
If you received a Notice to Appear that lacked a hearing date or location, the practical question is whether the government ever served you with a single document containing all the information the statute requires. If not, there is a strong argument under Niz-Chavez that the stop-time rule was never properly triggered, and that you have continued accruing physical presence toward the 10-year threshold. Cabrera-Fernandez gives the government a counterargument built on the theory that a later hearing notice can perfect the earlier defective one.
The date the clock stops, or doesn’t, can be the difference between eligibility and ineligibility. Someone who entered the United States 11 years ago and received a defective Notice to Appear three years in has a very different case depending on whether the stop-time rule fired at year three or has not fired at all. Because the law in this area is actively contested and varies by circuit, this is a question to work through with an immigration attorney who can evaluate the specific documents in your file against the current state of the case law in your jurisdiction.
What Cabrera-Fernandez Does Not Change
Cabrera-Fernandez addresses only the stop-time question. It does not alter the other cancellation of removal requirements. You still must show good moral character during the entire qualifying period, must not have disqualifying criminal convictions, and must prove that your removal would cause exceptional and extremely unusual hardship to a qualifying U.S. citizen or lawful permanent resident spouse, parent, or child.6Office of the Law Revision Counsel. 8 USC 1229b – Cancellation of Removal; Adjustment of Status The Attorney General also cannot grant more than 4,000 non-LPR cancellation cases in any fiscal year. Winning the stop-time argument gets you to the starting line on physical presence; it does not carry you across on the other three requirements.