Sarah E. Kelly
In Pereira v. Sessions, decided on June 21, 2018, the Supreme Court declined to apply Chevron deference in holding that a Notice to Appear (NTA), which fails to specify the time and place of a noncitizen’s removal proceeding, does not trigger the stop-time rule under section 1229(a) of the Immigration and Nationality Act (INA).
Wescley Fonseca Pereira, a native and citizen of Brazil, legally entered the United States in 2000 and remained after the expiration of his visitor’s visa. Pereira v. Sessions, No. 17-459, 585 U.S. __, slip op. at 5 (June 21, 2018). In 2006, DHS served Pereira with an NTA for his initial removal hearing, which was to take place at a time and date “to be set” in the future. Id. at 6. The Immigration Court issued a subsequent notice to Pereira in 2007, specifying the time, date, and place of his hearing. Id. However, the second notice was returned as undeliverable, and the Immigration Court ordered Pereira removed in absentia. Id. In 2013, Pereira was arrested for a minor motor vehicle violation and, resultantly, DHS detained him and reopened his removal proceedings. Id.
Under federal law, the Attorney General has discretion to “cancel removal,” and thereby adjust the legal status, of eligible noncitizens who have “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of application” for such relief. 8 U.S.C. § 1229b(b)(1)(A) (2018). The stop-time rule ends that “continuous period” of physical presence “when the alien is served with a notice to appear under section 212(a)(2) [8 U.S.C.S. § 1182(a)(2)].” Id. § 1229b(d)(1)(A). Pereira conceded that he was personally served with an NTA; however, the NTA he received did not contain the time, date, or place of his hearing, which, as he argued, is explicitly required under the statute. In particular, section 1229(a) provides that “the Government shall serve noncitizens in removal proceedings with a written ‘notice to appear’ specifying, among other things, ‘[t]he time and place at which the proceedings will be held.’” Pereira, slip op., (Alito, J. dissenting at 2) (quoting 8 U.S.C. § 1229(a)(1)(G)(i)).
Upon initial consideration of Pereira’s removal, the immigration court found that, in light of the stop-time rule, Pereira failed to establish 10 years of continued presence in the United States. Pereira, slip op. at 7 (majority opinion). Subsequently, the Board of Immigration Appeals (BIA) concluded that, regardless of whether an NTA specifies the time, date, and place of a hearing, the issuance of an NTA triggers the stop-time rule for cancellation of removal purposes. Id. On appeal, the First Circuit found ambiguity in the statute’s failure to state, explicitly, “that the date and time of the hearing must be included in a notice to appear in order to cut off an alien’s period of continuous physical presence.” Id. (citing Pereira v. Sessions, 866 F.3d 1, 4 (1st Cir. 2017)). Therefore, the First Circuit deferred to the BIA’s interpretation as “reasonable” under Chevron, stating that “the relevant text, statutory structure, administrative context, and legislative history” supported the BIA’s construction of the statute. Pereira, 866 F.3d at 7. In so finding, the First Circuit affirmed that, while section 1229 specifies what document must be served on a noncitizen to trigger the stop-time rule (i.e., an NTA), it is silent as to what information must be included in that document. Id. at 7–8.
In an 8-1 majority, the Supreme Court reversed the First Circuit’s application of Chevron in construing the stop-time rule under section 1229. Specifically, the Court found that the text of the statute, while not explicit—when read with its neighboring provisions and considered in light of Congressional intent—clearly mandates that an NTA specify the time and place of a removal proceeding to trigger the stop-time rule. Pereira, slip op. at 17. Writing for the majority, Justice Sotomayor noted that “[f]ailing to specify integral information like the time and place of removal proceedings unquestionably would deprive [the NTA] of its essential character.” Id. at 14. Therefore, where an NTA does not include such integral information, the noncitizen’s period of continuous presence remains undisturbed, and the stop-time rule does not trigger. “The plain text, the statutory context, and common sense all lead inescapably and unambiguously to that conclusion.” Id. at 2.
Pereira certainly emerges as a favorable decision for noncitizens challenging the stop-time rule in applying for cancellation of removal. However, the reach of the decision is yet to be determined, as there is a split among courts about how broadly Pereira should be read. The BIA, for instance, has since instructed that Pereira be read narrowly, asserting that it should only apply within the confines of the stop-time rule. See Matter of Bermudez-Cota, 27 I. & N. Dec. 441, 443 (BIA 2018). On the other hand, petitioners in the Fifth Circuit have successfully employed Pereira to negate the immigration court’s jurisdiction in a number of removal proceedings. See, e.g., United States v. Lopez-Urgel, 2018 U.S. Dist. LEXIS 193858, at *13 (W.D. Tex. Nov. 14, 2018) (“[A] Notice to Appear must include the time and place of the removal proceedings in order to constitute the appropriate charging document that vests the immigration court with jurisdiction.”). While the breadth of the decision remains uncertain, Pereira nevertheless sets monumental precedent, providing a firm legal basis for thousands seeking cancellation of removal. Moreover, in reshaping what constitutes a valid charging document, Pereira raises the possibility for reversal where a defective NTA led to denied cancellation of removal under the stop-time rule.