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Pereira v. Sessions: Good News Regarding Due Process

Blind Goddess of Justice Statue - Pereira v. Sessions

Under U.S. immigration law, there are some circumstances in which people who have violated immigration laws are eligible for relief and allowed to remain in the country, as long as they meet certain requirements for “continuous physical presence” for a specified period of time. However, when they are issued a notice to appear for an immigration hearing by the Department of Homeland Security (DHS), the clock counting the time they have maintained continuous physical presence stops.

In this case, Wescley Fonseca Pereira, a native of Brazil, had a visa to visit the United States. He remained in the country illegal after the expiration of his visa. Mr. Pereira received a notice to appear for an immigration hearing in 2006. However, the notice did not specify a place or time for him to appear, instead noting that the hearing would take place before on an Immigration Judge (IJ) in Boston “on a date to be set at a time to be set.”

A notice specifying the date, time, and place of hearing was sent by the court in 2007 more than a year later. Pereira did not receive it, did not appear, and was ordered removed in absentia, but ultimately was not removed. He remained in the country until March 2013, when he was arrested for a motor vehicle violation.

Pereira’s attorney moved to reopen his removal proceedings because he had not received the notice of the date, time, and place of the meeting. Pereira sought cancellation of removal under 8 U.S.C. § 1229b(b)(1). He argued that the original notice had not served as a “time-stop” of his continuous residency because it failed to specify the time, date, and place of the hearing,

The IJ, and subsequently the Board of Immigration Appeals (BIA) rejected this argument, and ordered Mr. Pereira removed from the country. Mr. Pereira appealed to the United States Court of Appeals for the First Circuit. The First Circuit upheld the IJ’s decision, as had the BIA, relying on a case called Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011).

Supreme Court Ruling in Pereira v. Sessions

The Supreme Court, in an 8-1 decision, reversed and remanded the First Circuit’s decision. The Supreme Court ruled that a notice to appear that fails to include the date, time, and place of a scheduled hearing does not trigger the “stop-time rule” and determining “continuous physical presence” for purposes of cancellation of removal eligibility.

The Supreme Court’s ruling is significant because the court declined to apply “Chevron deference.” Chevron deference is a principle that requires federal courts, when a statute is unclear or ambiguous, to defer to a federal agency’s interpretation of the statute. However, in this case, the Supreme Court said the statute was not ambiguous.

More importantly, for noncitizens who have received a deficient NTA, Pereira has significant implications because of:

  • The opportunity to apply for cancellation of removal, for those noncitizens whose applications were improperly pretermitted
  • The ability to file a motion to terminate removal proceedings by using Pereira to challenge the Immigration Court’s jurisdiction.
  • The ability to file a motion to reopen an in absentia removal order.

What to Do if You Receive a Notice to Appear

If you receive a notice to appear for an immigration hearing, you need to be aware of its impact on your ability to remain in the United States. Do not ignore any notice to appear. Contact an experienced Maryland immigration attorney as soon as possible.

Be aware of the court date listed on your notice to appear. It should be at least ten days from the time you received the notice. If you fail to appear at the time and place listed, you could be ordered removed from the country in absentia or in your absence.

Carefully review the personal information in the notice to appear. It should include your correct name in addition to any other names or aliases you have used in the past, along with your alien registration number (A#), date of birth, and your current address. If there are any errors or omissions, let your lawyer know.

In addition, you should carefully look over the descriptions of laws you are alleged to have violated. Again, if you have any questions or disagreements with what is written, ask your attorney.

Pereira v. Sessions is a case with an encouraging outcome, and it could affect thousands of people scheduled for deportation. To avoid removal from the country following a notice to appear, your best bet is still to get qualified legal help as soon as possible. If you have any questions about Pereira v. Sessions and how it may affect your case, we invite you to contact our law office.

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Categories: Immigration Law