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In June of 2018, the U.S. Supreme Court ruled in favor of Wescley Fonseca Pereira, an immigrant living in the United States on an expired visitor’s visa. Pereira’s legal team had raised significant questions regarding the validity of a Notice to Appear (NTA) that he had received from the Department of Homeland Security (DHS).
Though there wasn’t much hoopla surrounding it at the time, in the weeks and months since the ruling, legal professionals have been exploring the decision’s ripple effects across immigration law.
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You can read details of Pereira v. Sessions here at Ravel™ Law, but here’s the core takeaway: The case centered around the NTA Pereira received from the DHS, specifically the document’s lack of a date and location of his court appearance. As a result, the court decided that his NTA wasn’t valid—which also meant that Pereira’s tenure as a resident was not impacted by the Stop-Time Rule. This, in turn, affected the time Pereira was accruing in the United States.
Why does that accrued time matter? It’s because time spent in the country is a key benchmark for immigrants pursuing a Cancellation of Removal case. Cancellation of Removal was formerly known as Suspension of Deportation and is a legal remedy for qualified individuals who are facing deportation. You can read the eligibility requirements on the official form from the U.S. Department of Justice.
One of the key elements of a successful Cancellation of Removal application is time spent living in the United States. For undocumented immigrants, that means they have to show that they’ve been living in the U.S. for 10 continuous years. That time shrinks to just seven years for folks with lawful permanent resident status. Other factors can shorten that time requirement as well.
It probably should be noted that the individual in question has to meet several other conditions (like not having any aggravated felony convictions, for starters).
But what’s important here for the Pereira case, is that an NTA effectively stops that clock—a principle that is often referred to as the Stop-Time Rule. That means the NTA recipient is potentially put in greater jeopardy of deportation. In other words, immigration authorities could issue an NTA for an individual (one that didn’t mention the date or location of the required court appearance) and simultaneously halt that person’s ability to accrue time to benefit a Cancellation of Removal case.
Circling back to Pereira v. Sessions, since the Supreme Court essentially ruled NTAs need to follow a specified protocol of completion, many other immigrants are now arguing that their NTAs are invalid too.
In fact, an argument based on an NTA’s missing court date and location is only one aspect affecting the NTA’s validity. Lawyers are seeking any technicality made possible under the Pereira decision to demonstrate that a particular NTA should be voided—even if that technicality is relatively innocuous.
Looking at the big picture, it’s possible that a lawyer could use a nullified NTA as a reason to invalidate an entire deportation case. This story from NPR outlines a case that is being impacted from the Pereira decision.
More importantly, if there’s a reason to question the validity of specific NTAs, the Pereira decision could cause many previous deportation cases to be reopened on the grounds of due process.
This decision could swell to a massive wave of cases, as legal professionals surmise that many previously issued NTAs may have critical omissions too.
At the time of this writing, the Pereira ruling has been on the books for less than a year—though it has already been used in other decisions. In the Matter of German Bermudez-Cota, the scope of Pereira was better refined—confronting the broad language of the Pereira decision. The Board of Immigration Appeals upheld some of the tenets of the decision, while narrowing its scope relative to the particular details of the Pereira case.
As you’d imagine, legal opinions of the Matter of German Bermudez-Cota differ. The one thing that is clear is that Pereira’s case has further clouded the already-murky waters of immigration law.
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