Unites States Supreme Court Issues Decision in Pereira v. Sessions

The U.S. Supreme Court issued its decision in Pereira v. Sessions on June 21, 2018, holding that a Notice to Appear (NTA) “that does not inform a noncitizen when and where to appear for removal proceedings is a not a ‘notice to appear’” under the law. A NTA is the charging document issued by the Department of Homeland Security (DHS), informing the noncitizen of the charges of removability and initiating removal proceedings against them. That charging document is then filed with the Immigration Court.

Wescley Pereira, the appellant, is a native and citizen of Brazil. He came to the United States in 2000 on a visitor visa and overstayed his visa. DHS served him with a NTA in 2006, alleging that he was removable from the United States because he overstayed his visa. The NTA did not specify the date and time of his removal hearing, however, and instead ordered that he appear at a date and time to be set in the future. In 2007, more than a year later, Pereira received a hearing notice from the Immigration Court with the date and time of his first hearing. The notice, however, was not sent to the mailing address Pereira provided and was returned as undeliverable. When Pereira did not show up to the scheduled hearing, the Immigration Judge ordered him removed. In 2013, Pereira was detained by DHS based on the prior removal order and his case was reopened after he successfully demonstrated that he had never received the hearing notice. He applied for cancellation of removal because, by that time, he had been physically present in the United States for more than 10 years. He argued that he was eligible for cancellation of removal because the NTA was defective in that it did not provide a time and date of his removal hearing. He argued that this was required by statute and thus did not stop him from accumulating physical presence for purposes of cancellation of removal after 2006. The Immigration Judge did not agree with Pereira’s argument. The judge found that, despite the lack of hearing date and time, the NTA was effective as served. Both the Board of Immigration and the First Circuit affirmed that decision. The Supreme Court, in an 8-1 decision, reversed that decision.

This holding has far reaching implications not only for noncitizens currently in removal proceedings, but also for noncitizens that have already been ordered removed from the United States. Initially, it was not clear whether the holding in Pereira would be limited to cases involving eligibility for cancellation of removal, or whether it would apply more broadly. Just last week, in Matter of Bermudez-Cota, the Board of Immigration Appeals (BIA) ruled that, even if an NTA does not have a specified time and place of the initial hearing, an immigration judge still has jurisdiction over the proceedings. In other words, the BIA limited the ruling of Pereira to eligibility for cancellation of removal and the calculation of physical presence.

If you have previously been ordered removed or you are currently in removal proceedings, please contact our immigration attorneys to see if this recent decision may have an impact on your case.