Top of the Ninth: Jun 21, 2018

A Weekly Analysis of Board of Immigration Appeals and Ninth Circuit Immigration Decisions (and the Occasional Supreme Court Decision)

The Supreme Court Held that a Notice to Appear that Fails to Specify the Date and Time of the Hearing Does Not Stop Time for Purposes of Cancellation of Removal for Non-Lawful Permanent Residents

Today I am writing a very special blog in which I am only discussing the Supreme Court’s decision in Pereira v. Sessions, 585 U.S. __, No. 17-459 (June 21, 2018). The Court held that where the government issues a Notice to Appear that does not specify the date and time of the hearing, the Notice to Appear (NTA) is defective and does not stop time for purposes of cancellation of removal for non-lawful permanent residents. Justice Sotomayor wrote the decision and it almost seems like she handed the case to her most junior law clerk and said, “Please try not to say “duh” too often.” The real-life implications of this case mean that we now get to go through our cases and find the NTAs that say, ‘date of hearing: to be decided/time of hearing: to be decided” and see if the client currently qualifies for cancellation of removal. It’s a tedious task that I am looking forward to. We need to give a special shout-out to immigration attorney extraordinaire, Kathleen Gillespie, who told the attorney of record to argue this issue in order to preserve it for appeal. The ICE attorney apparently said that this argument was frivolous. The Supreme Court disagreed with the ICE attorney 8 to 1. I would say that constitutes a non-frivolous argument. Justice Kennedy fully joined in the opinion but wrote a concurrence saying that it was time to revisit Chevron deference. (Your weekly reminder about Chevron deference. The Supreme Court in Chevron held that where a statute is ambiguous the courts should defer to the agency’s interpretation of the statute where the interpretation is based on a permissible construction of the statute. In other words, it’s a two-part test: 1) is the statute ambiguous; and 2) if it is ambiguous, is the agency’s interpretation reasonable). The justices in at least the past two Supreme Court decisions on immigration (Pereira and Dimaya) have taken swipes at Chevron deference. I think it is time to be attacking it in the Ninth. Justice Alito was the lone dissenter and argued that the Court was wrong in its failure to afford Chevron deference to the BIA decision and that the failure to list the time and date of the hearing did not invalidate the Notice to Appear for stop-time purposes.

Here’s Justice Sotomayor’s framing of the question: “If the Government serves a noncitizen with a document that is labeled “notice to appear,” but the document fails to specify either the time or place of the removal proceedings, does it trigger the stop-time rule? The answer is as obvious as it seems: No.” All this quotation is missing is an eye-roll and a “duh….” Then to warm my heart, Justice Sotomayor in footnote 1 writes “The Court uses the term “noncitizen” throughout this opinion to refer to any person who is not a citizen or national of the United States.” Justice Alito, in his dissent, uses the term “alien” and Justice Kennedy, in his concurrence, only refers to Chevron deference. Back to the case. This decision only addresses whether a Notice to Appear that fails to list the place and time of the hearing stops time for non-lawful permanent resident cancellation. It does not address whether a defective notice to appear stops time for lawful permanent resident cancellation where the noncitizen has committed a crime that stops the clock. There are two types of cancellation of removal: one for lawful permanent residents (LPRs) and one for non-lawful permanent residents. The one for LPRs requires that the noncitizen have been a lawful permanent resident for 5 years after having been admitted in any status for 7 years and not have been convicted of an aggravated felony to qualify for cancellation of removal. But, the stop time rule applies when the noncitizen commits the crime. The one for non-LPRs provides that the noncitizen have been living in the United States for 10 years, be a person of good moral character, not have been convicted of certain crimes, and, establish that it would cause exceptional and extremely unusual hardship to a U.S. citizen or lawful permanent resident parent, spouse, or child if s/he were removed. INA §§ 240A(a) and (b).

Here’s the history. Back in 1997 just after Congress enacted IIRIRA, the Attorney General promulgated a regulation that held that a NTA need only provide the time, place and date of the hearing, “where practicable.” 62 Fed. Reg 10332 (1997). DHS has used that regulation to serve noncitizens with NTAs that fail to specify the date, time, and place of the hearing. We have all seen them. The Board of Immigration Appeals reviewed this decision and held that the stop-time rule “merely specifies the document the DHS must serve on the alien to trigger the ‘stop-time’ rule, but otherwise imposes no “substantive requirements” as to what information that document must include to trigger the stop-time rule.” Matter of Camarillo, 25 I.&N. Dec. 644 (BIA 2011).

The noncitizen here, Wescley Fonseca Pereira is a native and citizen of Brazil. In 2000, when he was nineteen years old he was admitted to the U.S. on a non-immigrant visa. He overstayed his visa, got married and now has two US citizen daughters. In 2006 he was arrested in Massachusetts for driving under the influence and was placed in removal proceedings. He was served with an NTA but the NTA ordered him to appear in immigration court at a date and time to be specified. On August 9, 2007, DHS filed the NTA with the immigration court and sent the Notice of Hearing to Mr. Pereira (I know it’s probably Fonseca, but I’m going with the Court’s names) at his street address rather than his post office box address. Needless to say, the notice of hearing was returned to the court as undeliverable and he was ordered removed in absentia. In 2013, Mr. Pereira was arrested for driving without his headlights on and was detained by DHS. The Immigration Court reopened the proceedings when Mr. Pereira established that he had not received the notice of hearing. Mr. Pereira applied for cancellation of removal, but the Immigration Court ruled that under Matter of Camarillo, the original NTA cut off time for the stop-time rule. The BIA agreed and the case went to the United States Court of Appeals for the First Circuit. The First Circuit denied the petition for review and afforded the BIA’s decision deference under Chevron. The Supreme Court took cert in this case to rule on a split between the circuits. The Third Circuit had held that the stop-time rule unambiguously requires service of a “notice to appear” that lists the time, date, and place of the hearing. Orozco-Velasquez v. Attorney General United States, 817 F.3d 78 (3rd Cir. 2016). The Ninth Circuit and almost every other circuit held that the statute was ambiguous and deferred to the BIA’s decision under Chevron.

The Supreme Court held that the only issue to be decided is “Does a “notice to appear” that does not specify the “time and place at which the proceedings will be held,” as required by § 1229(a)(1)(G)(i), trigger the stop-time rule?” The Court held that the statute was unambiguous and that it did not need to resort to Chevron deference. “The statutory text alone is enough to resolve this case.” The Court noted that for the other provisions of the statute to have meaning, the noncitizen had to have proper notice of the time and date of the hearing for the NTA to have any meaning. The Court addressed the Government’s argument that it was difficult to guarantee each noncitizen a specific time, date, and place for a hearing. The Court noted that the immigration courts could always change the time, date and place of the hearing. Then the Court threw some shade at the Government – “Given today’s advanced software capabilities, it is hard to imagine why DHS and immigration courts could not again work together to schedule hearings before sending notices to appeal.”

Justice Kennedy’s concurrence might be important in that it’s an indication that the justices are really questioning Chevron deference. Justice Kennedy writes, “The type of reflexive deference exhibited in some of these cases is troubling.*.*.*. [I]t seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision. The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should afford with constitutional separation of powers principles and the function and province of the Judiciary.” I’m only surprised that Gorsuch did not join this concurrence, given Gorsuch’s concurrence in Dimaya. So, if you are going to the Ninth, start challenging Chevron and its companion, Brand X.

Justice Alito dissented holding that while the NTA might be defective, that does not mean that it should not cut off time. He writes, “The question presented by this case is whether the stop-time rule is triggered by service of a notice to appear that is incomplete in some way.” He concludes that it does not.

So, continue making arguments that ICE deems “frivolous” and, enjoy going through your files to find cases that we can save.

Pereira v. Sessions, 585 U.S. __, No. 17-459 (June 21, 2018).