Whether a notice to appear in immigration removal proceedings must include all information listed in the statutory definition of a notice to appear, including the date and time of the proceedings, in order for the stop-time rule to be invoked.
The “stop-time rule” states that an alien’s period of continuous physical presence is interrupted after the government serves the alien with a notice to appear. The Court will determine in this case whether a notice to appear must include the time and location of the immigration removal proceedings in order to invoke the stop-time rule. Pereira argues that the statutory text, structure, and legislative history indicate that a notice to appear must contain all of the information listed in its statutory definition and contends that the Court should not defer to the interpretation of the Board of Immigration Appeals (“BIA”) because the BIA’s interpretation is unreasonable. Sessions counters that the statutory text, legislative history, and purpose demonstrate that a valid notice to appear does not need to contain such information and asserts that the Court should defer to the BIA’s reasonable interpretation of the statute. From a policy perspective, this case is significant because it will impact the ability of certain immigrants to cancel their removal and may affect the practices of immigration courts nationwide.
Questions as Framed for the Court by the Parties
Whether, to trigger the stop-time rule by serving a “notice to appear,” the government must “specify” the items listed in the definition of a “notice to appear,” including “[t]he time and place at which the proceedings will be held.”
Wescley Fonseca Pereira (“Pereira”) came to the United States from Brazil in June 2000 on a non-immigrant visitor visa that allowed him to stay in the country until December 21, 2000. Pereira overstayed his visa and received a notice to appear from the Department of Homeland Security (“DHS”) in May 2006, less than six years after he entered the United States. Rather than specify a date and time, the notice instead ordered Pereira to appear before an Immigration Judge (“IJ”) on a time and date to be determined. The following year, the Immigration Court sent Pereira a notice that set his hearing for 9:30 A.M. on October 31, 2007. However, Pereira never received the notice and did not appear at his hearing. Due to this absence, the IJ ordered Pereira removed from the country. Despite the IJ’s order, Pereira continued to live in the United States.
Five years later, in March 2013, Pereira was arrested for a motor vehicle traffic violation and was detained by the DHS. After retaining an attorney, Pereira filed a motion to reopen his removal proceedings, claiming that he had never received the hearing notice from October 2007. The IJ granted this motion. Pereira acknowledged that he was removable from the country, but sought relief under 8 U.S.C. § 1229b(b)(1), which allows for cancellation of removal if the immigrant has been in the country for a continuous period of ten years. According to Pereira, even though he received his initial notice to appear in May 2006, his notice was defective as it did not contain a date and time of a hearing and therefore did not stop the “continuous residency clock.” The IJ rejected this argument, held that Pereira could not establish ten years of continuous physical presence, and ordered him removed.
Pereira then appealed to the Board of Immigration Appeals (“BIA”). The BIA affirmed the IJ’s decision, finding that, despite the missing details concerning the date and time of the hearing, the notice was still effective under the “stop-time rule.” The “stop-time rule” states that an alien’s period of continuous physical presence is interrupted after the government serves the alien with a notice to appear. As such, the BIA held that the notice was effective at interrupting the ten years of continuous physical presence and rejected Pereira’s appeal.
Pereira next filed an appeal with the First Circuit. The First Circuit granted Chevron deference to the BIA’s interpretation of the stop-time rule and upheld the BIA’s interpretation as a permissible construction of the statute. Based on the BIA’s understanding of the stop-time rule, the First Circuit found that Pereira’s continuous physical presence in the country ended when he was served initially in May 2006. Thus, the court concluded that Pereira failed to demonstrate ten years of continuous physical presence and was therefore ineligible for cancellation of removal under § 1229b(b)(1). Pereira subsequently appealed to the Supreme Court, which granted certiorari in January 2018.
Pereira argues that 8 U.S.C. § 1229b(d)(1)’s “stop-time rule,” which states that an alien’s period of continuous physical presence is interrupted after the government serves the alien with a notice to appear, requires that a “notice to appear” contain all of the information listed in § 1229(a)’s definition in order to be valid. Pereira contends that the statutory text requires that a notice to appear contain, among other things, the location and time of the proceedings. Only a written notice containing all of this information invokes the stop-time rule. Further, Pereira maintains that the statutory text is not ambiguous. Rather, Pereira asserts that Congress explicitly stated that the stop-time rule can only be invoked by serving a document containing the information listed in § 1229(a) and that the word “under,” as used in this context, does not create ambiguity. Pereira further notes that other subsections of the statute use the phrase “notice to appear” in reference to a notice that complies with § 1229(a)’s definition of the phrase.
Additionally, Pereira emphasizes that other methods of statutory interpretation bolster his interpretation of the statute’s text. First, Pereira maintains that the statute’s structure demonstrates that a valid notice to appear must meet the requirements of § 1229(a). Pereira asserts that the statutory definition does not indicate that any of the requirements are more or less important than the others and posits that there is no basis for distinguishing between them. Pereira argues that it is irrelevant that the stop-time rule does not refer to the specific paragraph containing the definition of notice to appear because identifying the general subsection—a method Congress routinely utilizes—clearly indicates how a notice to appear is defined. Pereira also contends that § 1229(a)(2) supports the proposition that the time and location of a hearing must be included in a valid notice to appear because providing for the ability to change the time or place of the hearing necessarily envisions that a time and location have already been set. Moreover, Pereira maintains that the limited nature of the relief provided by the stop-time rule, as well as the rigorous eligibility requirements for that relief, provide further support for interpreting the statutory text as requiring that a notice to appear comply fully with § 1229(a)(1).
Next, Pereira asserts that the legislative history supports interpreting the stop-time rule as requiring all information listed in § 1229(a) be provided in a notice to appear. Pereira argues that Congress was aware of the requirements for a notice to appear to invoke the stop-time rule because Congress enacted both provisions in the same legislation. Given this, Pereira contends, Congress intended to change existing notification requirements to include the time and place of the proceedings in the notice to appear. Additionally, Pereira maintains that legislative history indicating that Congress enacted the stop-time rule to prevent immigrants from prolonging proceedings to qualify for residency is consistent with the statutory text and the proposition that a notice to appear must comply with § 1229(a). Finally, Pereira adds that the statutory construction principle requiring that statutory ambiguities be resolved in favor of immigrants applies here and should govern in the event that any ambiguity exists.
Sessions counters that interpreting § 1229b(d)(1)’s stop-time rule as applying when the government serves a notice to appear, regardless of whether the date and time of the proceeding are included, is supported by the statute’s text, context, and structure. Sessions argues that § 1229b(d)(1)’s reference to a notice to appear does not indicate that the date and time of the proceeding—which have not been determined at the time of service—must be included in order for the stop-time rule to be invoked. Rather, Sessions contends that the reference simply indicates the type of document required to be served on an immigrant in order for the stop-time rule to be invoked and does not necessitate that the document must fully comply with the requirements of § 1229(a). Sessions also maintains that the statute’s use of the word “under” demonstrates that the service of a valid notice to appear are controlled by § 1229(a), not that every requirement of § 1229(a) must be met in order for the stop-time rule to be invoked.
Further, Sessions asserts that three characteristics of § 1229b(d)(1) demonstrate that a notice to appear does not require all of the information listed in § 1229(a). First, Sessions posits that Congress used different language in another section of the statute where it sought to ensure that all of the requirements of § 1229(a) be met. According to Sessions, the use of different language shows that a notice to appear under § 1229b(d)(1) is not required to contain all of the information required by § 1229(a) in order to be valid. Second, Sessions contends that § 1229b(d)(1)’s reference to § 1229(a) demonstrates that Congress did not intend to require a notice to appear to fully comply with § 1229(a)(1)’s requirements. Sessions maintains that if Congress wanted a notice to appear to fully comply with § 1229(a)(1)’s requirements, Congress would have explicitly referenced that specific subsection, as it did in other parts of the statute. Third, Sessions argues that a notice to appear does not need to contain the time and location of the proceeding because § 1229b(d)(1)’s reference to § 1229(a) includes subsection (a)(2), which allows for the date or time of the proceeding to be changed. Sessions states that it should not be assumed that Congress would require a notice to appear to set a date and location that could later be changed.
Next, Sessions contends that the legislative history and purpose of the stop-time rule support the interpretation that notices to appear under § 1229b(d)(1) need not fully comply with § 1229(a)(1). Sessions contends that Congress amended the Illegal Immigration Reform and Immigration Responsibility Act (“IIRAIRA”) because legislators were concerned that immigrants were taking advantage of loopholes in protections from deportation. Sessions claims that Congress created the stop-time rule to prevent the abuse of one such loophole: the lack of a stopping mechanism on the tolling of an immigrant’s “continuous-physical-presence time.” Sessions maintains that Pereira’s interpretation of the statute defeats the purpose behind the stop-time rule’s enactment by allowing immigrants who would otherwise be ineligible for relief to take advantage of relief based on an unrelated technicality—the failure to provide the time and location of the proceeding in the notice to appear. Finally, Sessions emphasizes that the time and location of the proceeding is irrelevant to the goal of the stop-time rule.
BOARD OF IMMIGRATION APPEALS’ INTERPRETATION
Pereira asserts that the statute is unambiguous, but, in the event the Court finds that the statute is ambiguous, Pereira argues alternatively that the Court should not grant Chevron deference to the BIA’s interpretation of § 1229b(d)(1) because the BIA’s interpretation is unreasonable. Pereira maintains that the BIA’s interpretation is unreasonable based on the statutory text, structure, and legislative history of § 1229b(d)(1). Further, Pereira emphasizes, the Court should only accept the agency’s interpretation if the agency provides a strong justification that supports deviation from the best interpretation of the statute. Pereira elaborates that the justification for the BIA’s interpretation is unreasonable because it allows the government to use notices to appear that do not comply with statutory requirements. Pereira asserts that the stop-time rule provided the government with an important tool in regulating immigration in exchange for more information being provided to immigrants than was previously required. Pereira argues that the government’s interpretation attempts to return to the information requirements under the previous statutory scheme and that the BIA’s interpretation, relying partly on the government’s interpretation, attempts to allow the government to escape compliance with requirements for a notice to appear while still being able to utilize the stop-time rule. Finally, Pereira contends that the BIA’s interpretation makes the stop-time rule’s applicability dependent on the conduct of enforcement officials and leads to inconsistent results in similar situations.
Sessions counters that the Court should grant Chevron deference to the BIA’s interpretation of § 1229b(d)(1) because it is, at minimum, a reasonable interpretation of the statute. Sessions posits that even if Pereira’s interpretation is reasonable, that does not make the BIA’s interpretation unreasonable. Sessions also maintains that practical and administrative considerations related to deportation proceedings support the reasonableness of the BIA’s interpretation that a notice to appear under § 1229b(d)(1) need not contain the date and location of the proceeding. Sessions elaborates that because DHS is not involved in setting the date and location of the first proceedings, such information cannot practically be provided in notices to appear—a fact acknowledged in the regulations interpreting the statute. Session further contends that there is no evidence that Congress sought to change the current process and that it is reasonable for the Court to find that Congress preferred to keep the current process in place. Sessions notes that the Court has previously deferred to the BIA’s interpretation of ambiguous immigration statutes. Finally, Sessions argues that the Court has never used a statutory interpretation tool, like the rule resolving ambiguities in favor of immigrants, to reject a reasonable agency interpretation.
EFFICIENCY OF IMMIGRATION COURTS
Former BIA Chairman and Immigration Judge Paul Wickham Schmidt (“Judge Schmidt”), writing in support of Pereira, argues that DHS’s practice of not including hearing dates and times on notices to appear wastes time and resources for immigration courts. Drawing from his experience working at the BIA, Judge Schmidt elaborates that immigration courts already have trouble keeping up with large volume of cases due to time pressures and staffing shortages. Judge Schmidt adds that while immigration courts are responsible for scheduling hearing dates, DHS is responsible for notifying cited respondents of the details of said hearings. The separation of these duties, Judge Schmidt concludes, complicate scheduling and other administrative matters.
Judge Schmidt also argues that allowing DHS to state that hearing dates and times are to be determined on notices to appear only adds to the administrative complexity by creating an extra step that could create further delay and inefficiency. Judge Schmidt emphasizes that notices to appear with hearing dates and times to be determined result in defective and unclear notice, which in turn lead to in absentia removal orders that are later challenged, ultimately adding work to the already overburdened immigration courts.
Sessions counters that the First Circuit’s decision to uphold the BIA’s interpretation of the stop-time rule makes perfect sense in light of the administrative realities of removal proceedings. Sessions argues that since the DHS does not control the scheduling of hearings, it does not make practical sense to require the DHS to include the date and time of the initial hearing on the notice to appear. To support this assertion, Sessions describes an example where a local law enforcement authority arresting an unlawfully present immigrant needs to quickly initiate removal proceedings. In this scenario, Sessions argues, the law enforcement authority would not have time to secure a hearing date and time from an immigration court before sending the notice to appear to the unlawfully present immigrant.
HUMANITARIAN PURPOSE OF CANCELLATION
The National Immigrant Justice Center (“NIJC”), writing in support of Pereira, argues that, by not requiring that initial notices of hearings include the date and time of the hearing, the BIA’s interpretation sacrifices cancellation’s humanitarian goals for administrative convenience. The NIJC points out that Congress created cancellation, which permits immigrants to avoid removal from the country, to serve the critical purpose of avoiding excessively harsh punishment. By denying cancellation in a case such as this one, the NIJC argues, the Court would effectively punish immigrants who might be deserving of cancellation in favor of administrative convenience.
In response, Sessions contends that the government affords immigrants like Pereira various protections and states that previous Supreme Court decisions have already addressed many of Pereira’s concerns regarding the harsh treatment of immigrants. In particular, Sessions points to the Board of Immigration Appeals decision in In re Ordaz, which helped establish that the government must file a notice to appear to commence proceedings in order to trigger the stop-time rule. Sessions argues that this decision already alleviates many of the concerns that Pereira and amici have expressed by ensuring that the DHS does not omit key information when issuing notices to appear to unlawfully present immigrants.
- George Brennan, Martha's Vineyard immigration case headed for Supreme Court, MV Times (Jan. 27, 2018).
- Pat Murphy, High court takes up immigration case of Martha Vineyard man, LegalNews (Jan. 29, 2018).