July 26, 2018
By Andrew R. Arthur on July 20, 2018
The Supreme Court issued a decision last month (Pereira v. Sessions) that could have potentially devastating consequences for removal proceedings, both presently pending and completed.
At issue in that case was whether an alien who had been served a notice to appear (NTA) that did not contain the time and date of his initial hearing was barred from applying for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA).
Among other requirements, to be eligible for cancellation of removal under that provision, an alien must have “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of” that application. An alien who is granted cancellation of removal receives lawful permanent residence.
Section 240A(d)(1) of the INA (also known as the “stop-time rule”) contains special guidance relating to continuous physical presence. Specifically, for purposes of cancellation of removal under section 240A(b)(1) of the INA, such physical presence is deemed to end (with limited exceptions) “when the alien is served a notice to appear under section 239(a)” of the INA.
Section 239(a)(1) of the INA states, in pertinent part:
In general.-In removal proceedings under section 240 , written notice (in this section referred to as a “notice to appear”) shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any) specifying [listed items related to the case].
Among the items related to the case that are specified in section 239(a)(1) of the INA are “[t]he time and place at which the proceedings will be held”, which as noted was not included in Pereira’s NTA. As the Court stated: “Instead, it ordered him to appear before an Immigration Judge in Boston ‘on a date to be set at a time to be set.'” (Emphasis in original.)
That NTA was not filed with the immigration court until more than a year after it was served. The subsequent hearing notice sent by the immigration court, which specified the time and date of the hearing, was sent to Pereira’s home address, not the post office box that he provided to the Department of Homeland Security (DHS). That notice “was returned as undeliverable”. During that hearing, at which Pereira failed to appear, the immigration judge ordered him removed in absentia.
It was not until 2013 that Pereira again came to the attention of DHS, following an arrest for driving without his headlights on. He was arrested by the department, after which he filed a motion to reopen, which was granted by the immigration court because he had not received the hearing notice.
He subsequently applied for cancellation of removal under section 240A(b)(1) of the INA, asserting that the stop-time rule did not apply to him because his NTA did not specify the time and date of the hearing. The immigration court rejected that argument, and the Board of Immigration Appeals (BIA) dismissed Pereira’s appeal. A subsequent petition for review of that BIA order was denied by the Court of Appeals for the First Circuit.
None of these courts was writing on a blank slate. In Matter of Camarillo, the BIA had held that under the stop-time rule, a period of continuous physical presence was deemed to end upon service of the NTA, “even if the notice to appear does not include the date and time of the initial hearing.” The BIA concluded that the reference in section 240A(d)(1) of the INA to a respondent being served a NTA “under section 239(a)” of the INA was “ambiguous”:
A plausible reading … is that the reference in section 240A(d)(1) to a notice to appear “under section 239(a)” is simply definitional, that is, it indicates what the words “notice to appear” refer to. Read this way, section 240A(d)(1) merely specifies the document the DHS must serve on the alien to trigger the “stop-time” rule and does not impose substantive requirements for a notice to appear to be effective in order for that trigger to occur.
The BIA there concluded that “the best reading of the statute as a whole is that Congress intended the phrase ‘under section 239(a)’ after ‘notice to appear’ to specify the document the DHS must serve on the alien to trigger the ‘stop-time’ rule,” not that each of the facts specified in section 239(a)(1) of the INA must be included in the NTA for the rule to be effective.
The First Circuit concluded that the BIA’s interpretation of the statute was permissible, and deferred to it. Similarly, the Second, Fourth, Sixth, Seventh, Ninth, and Eleventh Circuits each found that the statutory stop-time rule was ambiguous and deferred to the BIA’s interpretation. Only the Third Circuit held that the stop-time rule unambiguously requires that the NTA as served meet each of the requirements under section 239(a)(1) of the INA.
The Supreme Court disagreed with both the First Circuit (and its sister circuits other than the Third) and the BIA, holding that an NTA “that does not inform a noncitizen when and where to appear for removal proceedings is not a” NTA under section 239(a) of the INA, “and therefore does not trigger the stop-time rule.”
Even if the application of Pereira is limited to the facts of its case, it will have a significant impact. As the Court noted, almost 100 percent of the NTA’s issued over the last three years omitted the time and date of the proceedings. This means that a removable alien who would have satisfied the 10-year physical presence requirement for cancellation of removal under section 240A(b)(1)(A) of the INA but for the service of an NTA issued in the last three years would now be eligible to apply for cancellation of removal, assuming that the alien meets the good moral character requirements for that relief, has a qualifying relative, and has not been convicted of an offense described therein.
A much larger issue, however, would be if Pereira were applied to all cases involving NTAs that do not include the time and place of the hearing.
The regulation governing the initiation of removal proceedings, 8 C.F.R. § 239.1(a), states, in pertinent part: “Every removal proceeding conducted under section 240 of the Act to determine the deportability or inadmissibility of an alien is commenced by the filing of a notice to appear with the Immigration Court.” If what the Supreme Court describes as a “defective” NTA is insufficient to vest jurisdiction over a removal case with the immigration court, an argument could be made that any case involving such a defective NTA (which could number in the tens to hundreds of thousands) must be terminated. Taking this one step further, any case in which a final order of removal involving such an NTA has been issued would be amenable to reopening.
It should be noted that the current regulation governing the scheduling of cases, 8 C.F.R. § 1003.18(b), states, in pertinent part:
In removal proceedings pursuant to section 240 of the Act, the Service shall provide in the Notice to Appear, the time, place and date of the initial removal hearing, where practicable. If that information is not contained in the Notice to Appear, the Immigration Court shall be responsible for scheduling the initial removal hearing and providing notice to the government and the alien of the time, place, and date of hearing. [Emphasis added.]
The validity of this regulation, which was relied upon in part by the BIA in its decision in Matter of Camarillo, is questionable in light of the Supreme Court’s decision.
The Department of Justice needs to act quickly to issue guidance on these issues. Otherwise, courts will be inundated with motions to terminate and reopen, swamping a court system already facing a significant backlog. Even then, significant litigation is likely to result from this decision.
Source: Center for Immigration Studies