Supreme Court justices on Monday wrestled with whether the government should be able to stop an immigrant from accumulating continuous residence time in the U.S. simply by sending them a notice that says an immigration court hearing is coming, without citing a date or time for that hearing.
The accumulation of continuous residence time is important for immigrants, since it’s generally harder to deport an immigrant if they have spent 10 or more years in the country. Immigrants in those cases can appeal deportation decisions, and can avoid deportation if they are of good moral character.
For years now, the federal government in almost every case has sent out a “notice to appear” to all immigrants, and argues that once that is sent out, an immigrant can no longer compile continuous residence time even if the actual court date is years later.
The complex issue came up in the case Pereira v. Sessions, in which the plaintiff says continuous residence time should not be capped once the generic notice to appear is received. The plaintiff is Wescley Pereira, an immigrant from Brazil who came to the U.S. in 2000 on a tourist visa and who disagrees with current U.S. practice.
During Monday’s arguments, Justice Sonia Sotomayor said that when thinking of a “notice to appear,” the date and reason seem to be the most important components.
“I’m simple-minded,” Sotomayor said. “Notice to appear seems to ask me when, where and why. Those are the three material elements of, to my simplistic way of thinking, of the words notice to appear. When am I appearing and for what? Those seem the two most critical components of those words.”
Justice Elena Kagan agreed, and said that if the government wants an immigrant to appear in court for removal proceedings, the “first thing to know” is when and where.
That sentiment was echoed by Justice Stephen Breyer, who acknowledged that the possibility a notice to appear would not include key information such as the date and time seemed “odd.”
Justice Neil Gorsuch also pressed this point in his line of questioning Monday.
“It doesn’t have to have a date. It doesn’t have to have a time. Does it have to have the charges? Does it have to have the facts?” he asked. “I mean, when does the emperor have no clothes? At what point? A blank page with the title ‘notice to appear,’ would that suffice?”
But the justices also seemed worried that if the government were required to list a date and time on a notice to appear, federal immigration authorities could list a date it has no intention of honoring and continue rescheduling proceedings. Chief Justice John Roberts said he wasn’t sure what doing that “would accomplish.”
Pereira came to the U.S. from Brazil on a six-month tourist visa at 19. A handyman, he now lives in Martha’s Vineyard and is married with two children who are U.S. citizens.
In May 2006, federal immigration authorities served Pereira with a notice to appear, which said he is subject to removal for overstaying his visa. The notice ordered him to appear in immigration court in Boston and instructed him to appear “on a date to be set at a time to be set.”
But Pereira’s case includes another wrinkle. More than a year later, the Department of Homeland Security tried to mail Pereira a notice scheduling the time of his removal hearing, but the notice was sent to his street address instead of his P.O. box. The notice to appear was subsequently returned, and he never received it.
The immigration hearing was held despite Pereira’s absence, and he was ordered to be deported. Pereira, however, remained in the U.S., “having never received any hearing notice, and having no knowledge of the in absentia removal order,” according to a brief his lawyers filed with the court.
Years later, in March 2013, Pereira was pulled over for a traffic violation and arrested for driving under the influence. He was then detained by federal immigration authorities.
An immigration judge reopened his removal proceedings, and Pereira applied for cancellation of removal, having lived in the U.S. for more than 10 years.
The judge, though, denied Pereira’s request, citing the notice to appear Pereira received in 2006, which stopped the clock on his period of continuous presence. Under this ruling, Pereira had only been in the U.S. for six years.
The Board of Immigration Appeals affirmed the decision, citing an earlier decision from 2011 that found the period of continuous presence ends when a notice to appear is served, even if it does not include a specific time or date.
The 1st U.S. Circuit Court of Appeals deferred to the Board of Immigration Appeals, citing Chevron. The federal appeals court said the statute at issue in the case is ambiguous and therefore deferred to the Board of Immigration Appeals’ interpretation.
Pereira’s lawyers argue that because the initial 2006 notice to appear served to Pereira lacked crucial information outlined in the statute — date and time of the removal hearing — the stop-time rule was not triggered.
Federal immigration law, they say, defines what is required to be included in a notice to appear, including the “time and place at which the proceedings will be held.”
But the federal government argues Congress likely did not mean to halt the stop-time rule just because information is omitted from a notice to appear. Additionally, under federal immigration law, the date of a removal hearing can be changed. Lawyers for the government also contend the purpose of the stop-time rule is to prevent an immigrant who can be deported from accruing “continuous physical-presence time while his removal proceeding is ongoing.”
A decision in the case is expected by the end of June.
