Although the Supreme Court’s decision in Pereira v. Sessions appears fairly technical and narrow, it isn’t. It casts a light on a practice by the DHS dating back to 1996. In nearly all cases the DHS has served a deficient charging document, called a “Notice to Appear.” If, as the Supreme Court concludes, each of those charging documents is deficient, a number of things have to change (and many of our clients will be eligible for relief from removal).
Summary of the Opinion
On June 21 st , 2018 Justice Sotomayor delivered the opinion of the court regarding Pereira v. Sessions. The opinion looked at the case of Wescley Fonseca Pereira, a native Brazilian, who entered the United States in 2000 with a visitor visa. Pereira remained in the U.S. after his visa expired, married, and had two daughters, both U.S. citizens.
In 2006, Pereira was arrested for a DUI. During his detention, the Department of Homeland Security (DHS) served him a notice to appear, ordering him to appear before an Immigration Judge in Boston on a date to be set at time to be set. In 2007, DHS filed the notice with the Boston Immigration Court and attempted to mail Pereira a more specific notice establishing the time and date of his hearing. The Boston Immigration Court sent the notice to an incorrect address and it was returned as undeliverable, though Pereira had previously provided the court with a valid address. Pereira, never having received the updated notice, failed to appear at court and was ordered removed. In 2013, Pereira was arrested driving without headlights on and was again detained by DHS. At this time, he had been in the country for a period exceeding 10 years, all the while, unaware of his order of removal.
Sotomayor writes that the “essential function” of a notice to appear is to inform noncitizens, to notify them, of when and where they are to appear for removal proceedings. If no time or location is explicitly stated, the noncitizen cannot be reasonably expected to appear for their removal proceedings. Without a time and date, a notice is not considered merely incomplete, but is indeed not a notice to appear at all. Sotomayor elaborates that it is unimageable as to why DHS and the immigration courts could not work together to schedule hearings before sending the notices to appear, given today’s innovative technologies.
The court ruled that since Pereira’s initial notice to appear failed to provide a specific time and location of his removal proceedings it is not considered notice to appear. Since Pereira never received a genuine notice, the “clock” indicating his 10 years of uninterrupted presence in the U.S. never stopped.
This decision allows Pereira to fulfill at least one of the four requirements that would make him eligible to apply for cancellation of removal. Furthermore, any other non-permanent residents or non-citizens who received a notice to appear, void of a specific date or location of their removal proceedings, may now also fulfill the 10-year continuous presence requirement, given that their “clock” never stopped either. Immigrants who had previously not considered or have been denied cancellation of removal waivers because of ineligibility may now have the option to apply for this waiver or to reopen their cases.
What Does This Mean?
It means more than the opinion says. Since 1996, the Notices to Appear the government has filed to start deportation proceedings almost never announce the date and time of the hearing.
This is a Notice to Appear, also regularly referred to as an “NTA”:
Near the bottom, every form has a line for “Date” and “Time” as the statute requires. But nearly every NTA says something like “a date to be set” or “to be determined.” And without stating a date and time, the document isn’t really a Notice to Appear.
Implication 1: Cancellation of Removal Eligibility
The Pereira case was about cancellation of removal. The 10 years of physical presence required for cancellation of removal stops when a person is served with an NTA. But now that the Supreme Court has held that a document is not a “Notice to Appear” unless it contains the date and time of the hearing, many people who have been in the United States will be eligible to apply for cancellation of removal, even if they were served with a defective NTA previously.
This might mean people who have already been ordered removed could have their hearings reopened since now they’re eligible for cancellation of removal. We are not yet sure whether the decision will be applied retroactively.
Implication 2: Termination of Removal Proceedings
The much larger implication of this decision is that, it would seem, any removal proceeding that was started with a defective NTA, which the Supreme Court now very clearly says does not count as an NTA, will likely need to be terminated, and the DHS will have to start over, serve a compliant NTA, and file the compliant NTA with the court to start new removal proceedings. The statute about how to start removal proceedings, INA 239, requires all proceedings to start with a “Notice to Appear.” The Supreme Court’s determination that these defective documents do not count as “Notices to Appear” pretty clearly means proceedings started with them are defective.
This is a deeply impractical implication, because it might mean the DHS basically has to completely start over with all pending cases. But the impracticality is not relevant. As Justice Scalia wrote, the role of the courts is “to apply the statute as it is written—even if we think some other approach might ‘accor[d] with good policy.’” Commissioner v. Lundy, 516 U. S. 235, 252 (1996).
There is no mechanism in the statute to fix this other than by terminating, because the initiation of removal proceedings must start with a “Notice to Appear,” and that document isn’t an NTA if it didn’t have the date and time of the hearing.
Implication 3: Moving to Reopen and Lack of Notice
Without getting too technical, this decision will assist with reopening old cases where immigrants were ordered removed, especially when they were ordered removed “in absentia.”
One reality in this decision that isn’t mentioned but lies beneath the surface is that so many people got in absentia orders because the original NTA didn’t have the time and date of the hearing and the person was no longer at the address they gave ICE by the time the hearing notice came. I’m working on reopening a case right now for a client who crossed the border alone at age 11, was issued a defective NTA, and then resettled with her family. The government didn’t file the NTA with the court until a year later, though, and when it finally mailed the hearing notice to her, she was no longer at the address she had given when she was at the border. The court held a hearing, she didn’t know about it and didn’t appear, and she was ordered removed.
Moving to reopen an “in absentia” order requires proof, at least in some cases, that the immigrant did not receive “notice.” That “notice” includes having received an NTA. So if these NTAs issued on the border aren’t compliant, the immigrant did not receive the required “notice” and she is eligible to reopen her case.
An even more important implication is that when you file one of these motions to reopen, they only automatically stay the removal of the immigrant if she didn’t receive “notice.” Here is the language from that regulation:
An order entered in absentia pursuant to section 240(b)(5) may be rescinded upon a motion to reopen filed at any time if the alien demonstrates that he or she did not receive notice in accordance with sections 239(a)(1) or (2) of the Act
A common scenario involves a person had no idea she had been ordered removed but suddenly gets picked up by ICE. Because she has a final order of removal, ICE can deport her immediately without a hearing. So often we’re racing to get a motion to reopen filed, and we want the filing of that motion to reopen to act as a temporary stay of her deportation. If the removal order isn’t temporarily stayed, the immigrant could be deported before it can be ruled on.
Now that the Supreme Court has said an NTA without the date and time is never the kind of notice described at INA 239(a)(1) and (2), every motion to reopen an in absentia order of removal is necessarily a “lack of notice” motion (as long as the NTA wasn’t compliant), so every motion to reopen should temporarily stay the immigrant’s removal.
Where Do We Go Now?
If you represent immigrants, this feels like the wild wild west. We will see how the immigration courts apply this decision. Only a day since the decision was issued, we’ve already heard multiple reports of IJs in Los Angeles terminating removal proceedings for people who have defective NTAs.
I suspect there will be litigation and eventually Circuit Court opinions defining the limits of this decision. However, no matter what future guidance is issued, we will be using the Pereira decision to fight for fair hearings for every immigrant being charged with removability.