Every victory counts.
In a period of profound setbacks for immigration law and policy, we should lift up those moments when due process prevails.
Last week delivered just such a moment in the form of an 8-1 Supreme Court decision in Pereira v. Sessions. The opinion received little media attention amid the nation’s outrage over the Trump administration’s cruel separation and detention of families. But in securing a win for the rights of noncitizens seeking cancellation of removal—and potentially other respondents as well—the case warrants not just attention, but acclamation.
The Supreme Court addressed whether a document that purports to be a “Notice to Appear” (NTA) but that omits the time or place of immigration proceedings is sufficient to trigger the “stop time” rule for purposes of cancellation of removal under INA § 240A(b)(1). Cancellation of removal is relief from deportation available to certain green card holders and individuals without lawful status who have put down roots in the United States and meet other conditions. Individuals without lawful status must show that they have maintained continuous physical presence in the United States for a duration of at least 10 years, are deemed persons of “good moral character,” and can demonstrate that their removal from the United States would result in “exceptional and extremely unusual hardship” to a close family member. Under INA § 240A(d)(1)’s stop-time rule, the accumulation of continuous physical presence stops “when the alien is served a notice to appear under section 239(a).” Section 239(a) provides, among other things, that an NTA specify the time and place of proceedings.
Petitioner Wescley Fonseca Pereira—a Brazilian national—is described in court documents as a “well-respected member of the community.” After entering the United States in 2000, he overstayed his visa. In 2006, the Department of Homeland Security (DHS) issued him an “NTA” that failed to identify the date and time of his hearing. Ultimately, in 2013, Mr. Pereira applied for cancellation of removal, asserting that he had remained continuously present in the country for over 10 years and that the 2006 NTA failed to trigger the stop-time rule due to its omission of a date and time.
In its ruling, based foremost on the statutory text, the Supreme Court agreed that an NTA that lacks a specific time or place of proceedings is defective in that it does not meet the definition of an “NTA” under § 239(a) and therefore does not activate the stop-time rule. As the 2006 document failed to include this information, the clock ticked on toward the 10-year threshold.
This decision represents a meaningful breakthrough for Mr. Pereira and other individuals who have received similarly deficient notices and apply for cancellation. For some of these respondents, the decision will ensure their protection from deportation by vaulting them beyond the decade mark into cancellation eligibility. Now these men and women may seek to remain lawfully with their loved ones in the United States—where they have long enriched their communities—scoring a victory for immigrant rights and for our nation.
The decision may also have broader implications. Already, AILA has received reports that attorneys have moved to terminate removal proceedings, asserting that a defective NTA without a date and time of proceeding is invalid for purposes of initiating proceedings. The decision could also have broader implications for individuals previously denied the opportunity to apply for cancellation where a defective NTA was deemed to stop the accrual of physical presence, as well as the reopening of “in absentia” removal orders—issued when respondents are absent from court.
Additionally, the decision could lead to operational changes. According to the Court, DHS acknowledged that nearly all of the NTAs it issued over the preceding three years failed to specify dates and times of proceedings. It is conceivable that the Department will now begin including such information on many, if not all, NTAs to prevent the type of outcome reached in this case. But at least two factors complicate that shift. First, the immigration court backlog has reached crisis proportions, exceeding 700,000 cases as of May 31, 2018. Many individuals wait years for their hearings. As such, even if an initial notice pinpointed the time and place of the hearing, that information could change multiple times as the years unfold and the backlog evolves—presenting a range of practical consequences. Second, EOIR has indicated that immigration courts schedule hearings only after DHS files NTAs with them. Setting hearing times from the outset would presumably require the two agencies to significantly enhance interagency coordination and information-sharing capabilities.
While the ultimate legal and operational ramifications will continue to play out, on an immediate level the Supreme Court’s decision advances the due process rights of Mr. Pereira and similarly situated respondents. At a deeply challenging time for immigrants and immigration advocates—a time when every victory counts—this is a win worth celebrating.