Supreme Court throws immigration law for a loop with Pereira v. Sessions

Sunday, June 24th, 2018
By: Jonathan MontagJ.D.

On June 21, 2018, the Supreme Court Issued a decision, Pereira v. Sessions. The case held that a putative [supposed] Notice to Appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a “notice to appear under 8 U.S.C. §1229(a) [INA § 239(a)],” and so does not trigger the stop-time rule. A whole lot of jargon there. Let’s deconstruct.

Notice to Appear

Removal proceedings, administrative proceedings conducted by immigration judges employed by the Departent of Justice, used to remove noncitizens from the United States, are most often initiated with Notice to Appear, as defined at INA § 239(a)(1). (Immigration judges conduct other types of proceedings, such as rescission proceedings, credible and reasonable fear reviews, and asylum- and withholding-only proceedings that use other forms.) The form’s purpose is rather self-explanatory. It provides a notice to the noncitizen that he must appear in an immigration court for removal proceedings. A Notice to Appear, according to INA § 239(a)(1)(G)(I), must include the “time and place at which the proceedings will be held.” This is quite sensible. Imagine being handed a document or receiving one in the mail that says, “You must appear in immigration court,” but does not say where and when or even when you will find out where and when and with no information about who to call to find out where and when. What would you make of such a document especially if the notice of where and when to appear did not come in the mail for weeks, or months, or years? For the most part over the last decades, Notices to Appear did not include the time and place of hearings.

Stop-time rule

In removal proceedings, immigration judges determine if a person is removable, i.e., whether he is actually a noncitizen, or whether he is actually lawfully in the United States. He may have come without status, status may have expired, or he could have committed a crime of committed some other act that invalidates his status and renders him removable. If the noncitizen is removable, then he can ask for relief for which he may be available. Some forms of relief, Cancellation of Removal for Certain Permanent Residents and Cancellation of Removal for Certain Nonpermanent Residents, have residence or physical presence requirements before one can be eligible for relief. Congress saw fit to limit eligibility for relief to people who have long residence (seven years of residence for Cancellation of Removal for Certain Permanent Residents) or physical presence (ten years of physical for Cancellation of Removal for Certain Nonpermanent Residents). Rather than allow for noncitizens to mature into eligibility as time passes while their cases progress, Congress decided that the service of a Notice to Appear stops the accrual of the residence and physical presence clocks. This is the stop-time rule, found at INA § 240A(d)(1)(A).

Pereira v. Sessions

The Supreme Court’s ruling (8-1, by the way, Alito, J, dissenting) held that a Notice to Appear without the time and place of the hearing is a defective Notice to Appear and does not stop time. The million dollar question is what else happens if a removal case is initiated with a faulty Notice to Appear. Does it mean that the proceeding was not legally initiated and should be terminated? Reports from around the country are that some immigration judges are terminating removal proceedings because of faulty Notices to Appear. This is important to pending cases, but also to old cases with old removal orders, which probably amounts to nearly all Notices to Appears issued in recent years. This could mean that nearly all cases in recent years or even decades are amendable to reopening and termination.

This may be well and good (for noncitizens in removal proceedings), but what about aliens who were granted relief from removal and allowed to stay in the United States? Should their cases be reopened? If their cases were improvidently filed, are the decisions granting relief in the cases valid?

Further, what if a noncitizen got a faulty Notice to Appear and later received in the mail the time and place of the hearing and showed up at his hearing (the normal scenario)? Did the receipt of the time and place of the hearing cure the faulty Notice to Appear? Did showing up for immigration court waive any objection to the faulty Notice to Appear?

Also, who should reopen cases? Should immigration courts review their millions of files and reopen and terminate all cases with faulty Notices to Appear? Should Immigration and Customs Enforcement attorneys file motions to reopen and terminate in all cases? Should the noncitizens have the responsibility to file motions to reopen even if they are living with removal orders that stem from faultily commenced removal proceedings? Should immigration courts even have jurisdiction to reopen and terminate cases that were not properly initiated?

Would it be fair to the government if the immigration courts reopened and terminated all cases where the noncitizen lost but not where the noncitizen won?

Should people who have already been deported be able to come back to the United States and have their day in court again if their notice to appear was faulty?

Despite these questions, some people are clear winners after Pereira. If a noncitizen’s time was stopped by the inadequate Notice to Appear but now he has accrued the time, Pereira clearly is a case in his favor, though the waiver of inadequacy issue still looms. Obviously the alien in Pereira objected or the case would not have reached the Supreme Court. (In retrospect, every immigration attorney in every case for the last twenty years should have filed a motion to terminate if his client did not want to be in removal proceedings and proceedings were initiated with a faulty notice to appear.) If a noncitizen was ordered removed in absentia, this similarly is potentially great news. No one can say he waived the inadequacy of the Notice to Appear, as he never showed up in immigration court to waive anything.

Throwing out every case with a faulty Notice to Appear would be a mixed bag for noncitizens. As noted, those that won their cases certainly would not want to go through the ordeal all over again. Those who are in removal proceedings and have permission to work based on pending applications would lose their ability to work with authorization. Noncitizens in proceedings seeking relief based on hardship to children (under age 21) could lose eligibility for relief as the delays in getting a new Notice to Appear and a new immigration court proceeding could result in these children growing up and no longer providing the basis for relief.

The impact on cases, past, present, and future, and on the entire immigration court system, is beyond our present comprehension. As the year progresses, we’ll have a lot to learn, including what the immigration courts, ICE’s Office of Chief Counsel, and federal district courts and appellate courts will do, and a lot to strategize about. Posted June 24, 2018.


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