Denyse Sabagh

Maxine D. Bayley

Alison M. Hopkins

On April 23, the U.S. Supreme Court heard oral arguments for Pereira v. Sessions, an immigration case that considered the requirements of a notice to appear in removal proceedings in the context of the stop-time rule for cancellation of removal. The issue was whether the language of the statute and a prior Board of Immigration Appeals, or BIA, ruling requires Chevron[1] deference and, if deference is not given, the impact on how the government schedules hearings for removal cases in immigration court.

The petitioner was removable based on overstaying his visa. To start removal proceedings in an immigration court, the government must serve what is called a “notice to appear” on the foreign national.[2]

The petitioner wanted to apply for a remedy known as “cancellation of removal.”[3] For nonpermanent residents, like the petitioner in Pereira, the foreign national must have been physically present in the United States for a continuous period of at least 10 years to qualify for cancellation of removal. [4] The government can stop the clock by serving the notice to appear on the foreign national.[5] This is known as the “stop-time rule.”

The Pereira case hinges on the clarity (or lack thereof) of the stop-time rule located at Immigration and Nationality Act §240A and requirements for a notice to appear located at INA §239.

INA §240A states:

For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end […] when the alien is served a notice to appear under section 239(a) [of the Act].[6] (Emphasis added.)

INA §239 governs the notice to appear requirements. Specifically, the law states that the notice to appear “shall be given in person to the alien […] specifying:

(A) The nature of the proceedings against the alien.

[…]

(D) The charges against the alien, and the statutory provisions alleged to have been violated.

[…]

(G) The time and place at which the proceedings will be held.[7]

In Pereira, the time and date was not included on the notice to appear. The government served a notice to appear on the petitioner, Wescley Fonseca Pereira, after he had overstayed his visa for about six years. The notice stated Pereira was “ordered to appear” for removal proceedings in the Boston immigration court “on a date to be set at a time to be set.” The petitioner argues that this notice to appear is insufficient to stop the clock because the notice does not state the date and time of the hearing. The government argues that it is sufficient to stop the clock and that the court should give deference to a prior case on the stop-time rule decided by the BIA.

In Matter of Camarillo[8], the BIA found that the statute was ambiguous on whether a valid notice to appear must include the time and place of the removal proceeding. After reviewing the legislative history, the BIA determined that the purpose of the stop-time rule was to prevent foreign nationals from “buying time” to become eligible for cancellation of removal. The BIA found that the primary purpose of the rule is to inform foreign nationals that the government intends to initiate removal proceedings. The BIA also noted that it is not practical to require the government to include a date and time of the removal proceedings because that information is not always available. The date and time of removal proceedings are incidental, so failing to include the date and time does not invalidate the notice.

Under Chevron deference, if Congress’ intent is clear, the court will apply the language of the statute. If the court determines that “Congress has not directly spoken to the precise questions at issue,” the court will give deference upon finding that the BIA’s interpretation is a permissible construction of the statute.

The statute says: “[the notice to appear] shall be given in person to the alien […] specifying [the time and place of the immigration proceeding].” (Emphasis added.) The placement of the word “shall” is critical. It is unclear whether the “shall” only relates to giving the notice to the foreign national or whether it also controls the information included in the notice. It would be reasonable to conclude that Congress did not intend for a notice to become invalid simply because the date and time of the proceeding were not included. It would also be reasonable to conclude the opposite. The language is not clear, so the Supreme Court will likely conclude that the first step under Chevron deference has not been satisfied.

The second step of the analysis is to determine whether the BIA’s interpretation is permissible and thus give it deference. Generally, it is difficult to overcome that second step in the Chevron deference analysis. When Congress delegates administrative authority to an executive agency, such as the BIA, the Supreme Court gives “considerable weight” to that agency’s interpretation of the relevant statute.[9] For the Supreme Court to not give deference, the BIA’s interpretation must be “beyond the meaning that the statute can bear.”[10] The BIA considered the language of the statute and balanced it against the legislative history. The BIA concluded that the language was ambiguous and that the legislative history supported the interpretation that the time and date are not required on the notice to appear. Pereira’s brief and oral argument tried to overcome these issues.

The oral argument in Pereira touched upon a key practical issue that seemed to be on the mind of many of the justices — immigration courts are notoriously backlogged. In an exchange with Pereira’s counsel, Justice Neil Gorsuch cut to the heart of the practical concerns:

I think the concern that, if I’m correct, that my colleagues are expressing is we may be creating a perverse incentive here for the government to issue earlier notices to appear on dates that it actually has no intention of proceeding in order to stop the clock on clients like yours, rather than being more forthright and saying we don’t know when we’re going to be able to do it, but here’s a notice to stop the clock. We’re going to wind up in the same place perhaps, and it’s just a paper exercise.

The government’s counsel even conceded that “almost 100 percent” of notices to appear do not provide the date and time of the removal proceeding. Why? Because including the specific date and time of a removal proceeding on every notice is unreasonable and impractical. There are simply too many cases and not enough immigration judges.

Additionally, although the government alluded to a prior system that allowed officers to determine available court dates, that system is no longer in place. If the Supreme Court were to decide that the date and time are required, will existing notices become invalid if the date and time are not listed? Will the court require the government to reinstitute a system that allows officers to see available court dates? That could take years to develop. It is clear, though, that if the Supreme Court sides with Pereira, it would drastically change how the government schedules removal proceedings.

Ultimately, the government may not need to consider the implications of changing the scheduling system. Based on the prior BIA decision and the government’s argument on the language of the statute, the court may side with the BIA and hold that including the time and date of a scheduled hearing is not a requirement for a notice to appear.

Denyse Sabagh heads Duane Morris LLP's immigration practice group in Washington, D.C. She practices in the areas of immigration and nationality law and litigation.

Maxine D. Bayley is an associate in Duane Morris’ San Francisco office. She practices in the area of immigration law.

Alison M. Hopkins is an associate in Duane Morris’ Washington, D.C., office. She practices in the area of corporate law. 

Notes

1. See Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984).
2. See See generally INA § 239; 8 U.S.C. § 1229.
3. See See generally INA § 240A; 8 U.S.C. § 1229b.
4. See INA § 240A(b)(1)(A); 8 U.S.C. § 1229b(b)(1)(A).
5. See INA § 240A(d)(1); 8 U.S.C. § 1229b(d)(1).
6. Id.
7. See INA §239(a)(1); 8 U.S.C. § 1229(a)(1).
8. See Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011)
9. Id. at 843 (“We have long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations.”)
10. See MCI Telecommunications Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 229 (1994). 

Reprinted with permission of Law360.