Pereira v. Sessions

Facts of the Case

Provided by Oyez

Wescley Fonseca Pereira entered the United States in June 2000 as a non-immigrant visitor authorized to stay until December 21, 2000. Pereira overstayed his visa, and in May 2006, the Department of Homeland Security (DHS) personally served him with a notice to appear for a removal hearing. The notice did not specify the date and time of his initial removal hearing, but instead ordered him to appear before an immigration judge “on a date to be set at a time to be set.” When the immigration court set a date and time, it mailed Pereira a notice with such information. However, the notice was sent to Pereira’s street address on Martha’s Vineyard rather than his post office box, so Pereira never received it. When Pereira did not appear for his removal hearing, an immigration judge ordered him removed in absentia.

Pereira was not removed and instead remained in the country. In March 2013, he was arrested for a motor vehicle violation and detained by DHS. Through his attorney, Pereira filed a motion to reopen his removal proceedings, claiming he had never received the hearing notice with the time and place. Although Pereira conceded that he could be removed, he sought relief in the form of cancellation of removal under 8 U.S.C. § 1229b(b)(1), a provision that gives the attorney general discretion to cancel the removal of a non-permanent resident alien if the alien meets certain criteria, including ten years of continuous physical presence in the United States. This continuous period ends “when the alien is served a notice to appear under section 1229(a)” of the Immigration and Nationality Act (INA). Pereira contends that because he did not receive notice of the time and place of his removal hearing, his presence in the country was continuous and over ten years under the statute.

The Board of Immigration Appeals (BIA) has held that a notice to appear that does not contain the date and time of the hearing is nonetheless effective to end the period of continuous physical presence. However, Pereira challenges this reading of the statute. The First Circuit determined that the relevant provisions of the INA are ambiguous as to whether notice must include the date and time of the hearing to be effective, but the court found that the BIA’s interpretation of the statute was reasonable and thus subject to Chevron deference.

Questions

Must a notice to appear for a removal hearing specify the place and time of the hearing to effectively trigger the stop-time rule of 8 U.S.C. § 1229b(b)(1), contrary to the holding of the Board of Immigration Appeals?

Conclusions

A notice to appear for a removal hearing that does not specify the time and place of the hearing does not trigger the stop-time rule. In an 8-1 decision authored by Justice Sonia Sotomayor, the Court reasoned that a "notice to appear" that does not include with specificity both "when" and "where" cannot reasonably be expected to result in a person appearing at their hearing. The Court looked to the text of the statute, which provides that the continuous period in question ends "when the alien is served with notice to appear," and "notice to appear" is defined throughout the section as "a written notice . . . specifying . . . "the time and place at which the proceedings will be held." The text of the statute is thus unambiguous, so Chevron deference to the interpretation by the Board of Immigration Appeals (BIA) is unnecessary. This requirement of a "notice to appear" is also consistent with congressional intent.

Justice Anthony Kennedy filed a concurring opinion to note his concern over the way courts apply Chevron deference.

Justice Samuel Alito filed a dissenting opinion, in which he finds that the language of the statute is ambiguous and thus that the BIA's interpretation is entitled to Chevron deference.