June 27, 2018
By Pat Murphy
BridgeTower Media Newswires
BOSTON, MA – The U.S. Supreme Court has decided to use the plight of a Martha’s Vineyard man facing removal to his native Brazil to determine a key aspect of federal immigration law.
Wescley Fonseca Pereira entered the United States in June 2000 as a non-immigrant visitor. Authorized to stay in the country only until the end of 2000, Pereira overstayed his visa – by a lot.
In May 2006, the Department of Homeland Security served Pereira with notice to appear for a removal hearing. Although the notice informed Pereira he was to go before an immigration judge in Boston, it did not specify a date and time. Instead, the notice ordered him to appear “on a date to be set at a time to be set.”
More than a year later, DHS filed the notice in Immigr
The Boaation Court. In turn, the court mailed notice to Pereira’s Martha’s Vineyard address, setting his initial removal hearing for 9:30 a.m. on Oct. 31, 2007.
But Pereira never received the court’s notice as a consequence of certain alleged shortcomings in postal service on the Vineyard. When Pereira failed to appear at his removal hearing, an immigration judge ordered his removal in absentia.
More than five years later, in March 2013, Pereira found himself arrested for a motor vehicle violation and handed over to DHS. Pereira’s attorney, Jeffrey B. Rubin, successfully moved to reopen the removal proceedings on the ground that his client never received the October 2007 hearing notice. Rubin, of Rubin Pomerleau in Boston, followed up by seeking cancellation of Pereira’s removal under 8 U.S.C. §1229b(b)(1).
That section of the Immigration and Nationality Act grants the U.S. attorney general authority to cancel the removal of a non-permanent resident alien if the alien satisfies certain criteria, including 10 years of continuous physical presence in the U.S.
However, under the statute’s so-called “stop-time rule,” an alien’s period of continuous physical presence ends upon service of notice to appear for a removal hearing. Pereira’s fate hinges on whether his “residency clock” stopped running when he received the May 2006 notice of a removal hearing.
Rubin argues that that notice was defective because it failed to include the date and time of his client’s hearing, meaning Pereira continued to accrue time for purposes of §1229b(b)(1) until the notice of hearing he received after an immigration judge reopened his case in 2013.
rd of Immigration Appeals rejected that argument in a decision that was affirmed by the 1st U.S. Circuit Court of Appeals in July. The 1st Circuit’s decision in Pereira v. Sessions aligns with the BIA as well as most other circuits that have addressed the issue, the exception being a 2016 ruling from the 3rd Circuit.
Earlier this month, the Supreme Court granted cert in Pereira to resolve the circuit split by deciding one discrete question: “Whether, to trigger the stop-time rule by serving a ‘notice to appear,’ the government must ‘specify’ the items listed in the [statute’s] definition of a ‘notice to appear,’ including ‘[t]he time and place at which the proceedings will be held.'”
The case has significance to potentially tens of thousands of immigrants, according to Rubin.
“There’s a ‘rule book’ that dictates when that 10-year period ends, and it’s when you are served with a notice to go to the Immigration Court,” Rubin says. “The statute defines what that notice must include, and I believe immigration officials have routinely undermined the rule book by giving people notice that does not contain the required information.” After arguing the case before the 1st Circuit, Rubin brought on as co-counsel Goodwin’s William M. Jay and David J. Zimmer.
“We saw the decision out of the 1st Circuit and recognized it was a case the Supreme Court might be interested in,” Zimmer says. “We asked [Rubin Pomerleau] if they would consider seeking cert and needed help in that process.”
Jay co-chairs Goodwin’s appellate litigation practice from the firm’s D.C. office, and Zimmer practices out of the Boston office. A former clerk for Justice Elena Kagan, Zimmer brings rare insight to Supreme Court practice. Rubin credits both Goodwin attorneys for getting Pereira’s case before the justices.
While Jay is currently listed as counsel of record in the Supreme Court matter, Zimmer says it has yet to be decided who will conduct oral argument. Zimmer admits he would love the chance to argue the case before the justices at his old stomping grounds.
“It would be a real treat,” he says.