Pereira frenzy; remember, attorneys, this is not all about you.

Sunday, July 22nd, 2018
By: Jonathan MontagJ.D.

A month ago I blogged about the Supreme court’s decision in Pereira v. Sessions. I explained the decision and mentioned some of the reasons for uncertainty about the scope of the decision, including:

1. Pereira may be well and good (for noncitizens in or in completed removal proceedings), but what about noncitizens 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 their cases valid?

2. 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?

3. 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?

4. 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?

5. 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?

These concerns all related to completed cases and the challenge of how to deal with 21 years of immigration court decisions. (Most Notices to Appear in the past 21 years lacked a location and date of hearing.) Does the decision mean that 21 years of cases should be thrown out? That is almost my entire career of the thrills of victory and the agonies of defeat? It seems unlikely to me that this will be the final resolution.

Can the courts fix this mess? Or will Congress have to amend the Immigration and Nationality Act to retroactively take the location and date language to perfect a Notice to Appear out of the statute or to retroactively validate all finished cases? It’s hard to see how this could become a partisan issue – is there any faction in government that wants to throw out 21 years of immigration court cases plus potentially expand the immigration court backlog ten or twenty fold?

However, completed cases are not the only cases. There are the current cases. If one believes that Pereira invalidates most pending cases, is it an imperative for an attorney to file a motion to terminate in all cases, i.e., malpractice not too? Let’s consider two classes of noncitizens currently in removal proceedings – those not detained and those detained.

Non-detained scenario: Your client has been in proceedings for a few years already. You have filed applications for relief for which your client is eligible and by most measures, deserving – he will win, though, of course, nothing is certain. If the case is terminated, all the government has to do is issue a new Notice to Appear and it all starts all over again. In the meantime, the government might appeal. You’ll make your arguments on appeal and perhaps appeal the appeal until the case is resolved. If you win, the client gets a new NTA and heads back to immigration court. If you lose, you go back to immigration court. Maybe two to five more years of litigation to get back to where you started. Is that best for your client or are your perceptions distorted by the prospect of more fees for a Pereira motion, a BIA appeal, a circuit appeal?

Detained-scenario: Your client is facing mandatory detention. Your client has no strong relief. He may be in fear for his life if he is sent back to his country, but that is not the basis to stay in the United States, as you are well aware.  You figure, a Pereira termination is all he’s really got. (Which begs the question of why you are taking money in a case where you cannot do anything for the client. That is something to think about, perhaps, in a more contemplative portion of your life.) You file the motion. You win. The government appeals. Your client remains detained during the appeals process for one year? Two years? Three years? You win on appeal. The government issues a new Notice to Appear and you are back where you started? And if you lose? You go back to where you started, back to the immigration court. Have you done the best for your client or simply lined your pockets and given yourself a reason to boast on Facebook?

Are there scenarios where one should file a Pereira motion. Of course. When your client is harmed by the stop-time provision and Pereira will cure it? When your client really wants voluntary departure but is harmed by a different stop-time provision that affects voluntary departure? (An NTA issuance stops the accrual of one year of physical presence needed for voluntary departure.) When you client was ordered removed in absentia. When your client lost his case but you think he would do better now, as for example, when the equities now favor relief where previously they did not.

Deciding whether to file a Pereira motion can be a tough call. It is your client’s call. You need to properly inform your client. You must be sure you are presenting the facts to your clients to get him to his best result, not yours – not a result that brings you more fortune and fame. His best strategy and your best strategy are separate things.

By the way, you may have noticed some of this post is written in the “second person.” This is in tribute to Jonathan Gold who almost made you feel that living in Los Angeles would not be that bad. Posted July 22, 2018.


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