Law School Case Brief
Pereira v. Sessions - 138 S. Ct. 2105 (2018)
Nonpermanent residents, who are subject to removal proceedings and have accrued 10 years of continuous physical presence in the United States, may be eligible for a form of discretionary relief known as cancellation of removal. Under the so-called stop-time rule set forth in 8 U.S.C.S. § 1229b(d)(1)(A), however, that period of continuous physical presence is deemed to end when the alien is served a notice to appear under 8 U.S.C.S. § 1229(a). Section 1229(a), in turn, provides that the government shall serve noncitizens in removal proceedings with written notice (in this section referred to as a notice to appear) specifying several required pieces of information, including the time and place at which the removal proceedings will be held.
The consequences of a noncitizen’s failure to appear at a removal proceeding can be quite severe. If a noncitizen who has been properly served with the written notice required under 8 U.S.C.S. § 1229(a)(1) or (2) fails to appear at a removal proceeding, he shall be ordered removed in absentia if the government establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable. Absent exceptional circumstances, a noncitizen subject to an in absentia removal order is ineligible for some forms of discretionary relief for 10 years if, at the time of the notice described in § 1229(a)(1) or (2), he was provided oral notice of the time and place of the proceedings and of the consequences of failing to appear. In certain limited circumstances, however, a removal order entered in absentia may be rescinded, e.g., when the noncitizen demonstrates that he did not receive notice in accordance with § 1229(a)(1) or (2).
Petitioner Wescley Fonseca Pereira is a native and citizen of Brazil who came to the United States in 2000 and remained after his visa expired. Following a 2006 arrest for operating a vehicle while under the influence of alcohol, the Department of Homeland Security (DHS) served Pereira with a document titled “notice to appear” that did not specify the date and time of his initial removal hearing; instead, the document ordered him to appear at a time and date to be set in the future. More than a year later, in 2007, the Immigration Court mailed Pereira a more specific notice setting the date and time for his initial hearing, but the notice was sent to the wrong address and was returned as undeliverable. As a result, Pereira failed to appear, and the Immigration Court ordered him removed in absentia. The Immigration Court reopened the removal proceedings after his being arrested for a minor motor vehicle violation in 2013. Pereira then applied for cancellation of removal, arguing that he had been continuously present in the United States for more than 10 years and that the stop-time rule was not triggered by DHS' initial 2006 notice because the document lacked information about the time and date of his removal hearing. The Immigration Court disagreed and ordered Pereira removed.
Was there sufficient notice in the document to the non-resident so as to trigger the stop-time rule?
A putative notice to appear that fails to designate the specific time or place of the noncitizen's removal proceedings is not a “notice to appear under §1229(a),” and so does not trigger the stop-time rule. Under the stop-time rule, “any period of…continuous physical presence” is “deemed to end…when the alien is served a notice to appear under Section 1229(a). The same section clarifies that the type of notice referred to is a written notice specifying the time and place at which the removal proceedings will be held. Thus, to trigger the stop-time rule, the Government must serve a notice to appear that, at the very least, specifies the time and place of the removal hearing.
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