Term: 2017
Docket: 17-459
Pereira v. Sessions, Att'y Gen.
- Pro
17-459 PEREIRA V. SESSIONS DECISION BELOW: 866 F.3d 1 CERT. GRANTED 1/12/2018 QUESTION PRESENTED: The Attorney General can cancel removal of certain immigrants under 8 U.S.C. § 1229b (a) and (b). To be eligible for cancellation of removal, a non-permanent resident must have ten years of continuous presence in the United States, and a permanent resident must have seven years of continuous residence. Id. § 1229b(a)(2), (b)(l)(A). Under the "stop-time rule," those periods end when the government serves a "notice to appear under section 1229(a) of this title." Id. § 1229b(d)(l). Section 1229(a) defines a "notice to appear" as "written notice ... specifying" certain information, including "[t]he time and place at which the proceedings will be held." Id. § 1229(a)(l). The First Circuit held, disagreeing with the Third Circuit but agreeing with the Board of Immigration Appeals and other circuits, that the stop-time rule is triggered when the government serves a document that is labeled "notice to appear" but that lacks the "time and place" information required by the definition of a qualifying "notice to appear." The question presented is: 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." LOWER COURT CASE NUMBER: 16-1033
The case of Pereira v. Sessions, Attorney General in 2017 revolved around the issue of whether a Notice to Appear (NTA) that does not specify the time and place for an individual's removal proceedings under the Immigration and Nationality Act (INA) triggers the stop-time rule. The stop-time rule ends an immigrant’s period of continuous residence or physical presence in the U.S., which is necessary for cancellation of removal relief eligibility. Wescley Fonseca Pereira, a Brazilian citizen who overstayed his visa, received such NTA without specified date and time details but was later served with another notice specifying these details. He argued that he had accrued more than ten years required for cancellation because his initial NTA did not trigger stop-time rule as it lacked specific information about hearing date/time/place per INA requirements. In June 2018, Supreme Court ruled in favor of Pereira by stating that NTAs lacking detailed information do not meet statutory definition hence cannot trigger stop-time rule; thereby allowing him to apply for cancellation relief based on having stayed over ten years continuously.
In the dissenting opinion for Pereira v. Sessions, Justice Kennedy, joined by Justice Thomas, argued that the majority's interpretation of the "stop-time" rule was too narrow and failed to consider broader statutory context. They contended that a Notice to Appear (NTA) should not be invalidated solely because it lacks specific time-and-place information about removal proceedings. Instead, they suggested that an NTA could still trigger the stop-time rule if it is later supplemented with this information in a hearing notice or otherwise. The dissenters also criticized the majority for overstepping its judicial role by effectively rewriting immigration law rather than deferring to agency interpretations under Chevron deference doctrine.
