Update

(Update: 9/7/2018): On June 21, 2018, the Supreme Court resolved this case in its decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018). The Court reversed the First Circuit and held that a notice to appear must include the time and place of the initial hearing in order to trigger the stop-time rule. We will leave this article about the Court initially granting cert up for your reference, since it provides relevant background information about the issue. However, when reading, please bear in mind that the Court has decided the case. Please see our full article on the Court’s decision to learn more [see article].

Introduction

On January 12, 2018, the Supreme Court of the United States agreed to hear 17-459 Pereira v. Sessions on appeal from the United States Court of Appeals for the First Circuit [PDF version]. In this article, we will briefly examine the the important issues presented and what this may mean going forward. We will write more about the important litigation as it proceeds to oral arguments before the Supreme Court.

Facts and Issue in Pereira v. Sessions, 866 F.3d 1 (1st Cir. 2017)

On July 31, 2017, the First Circuit issued a published decision in Pereira v. Sessions, 866 F.3d 1 (1st Cir. 2017) [PDF version]. The question before the First Circuit was when does the issuance of a notice to appear stop the accrual of continuous physical presence for purpose of applying for non-lawful permanent resident (LPR) cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act (INA).

In Pereira, the specific issue involved the fact that the notice to appear “did not specify the date and time of [Pereira’s] initial removal proceeding, but instead ordered him to appear before an Immigration Judge … in Boston ‘on a date and time to be set.’” Id. at 2. The situation was such that if the initial notice to appear stopped the accrual of continuous physical presence, then Pereira would fall short of the required 10 years’ continuous physical presence and would be ineligible for cancellation. However, if it did not stop the accrual of unlawful presence, he would not be barred from seeking cancellation. Id. at 3.

Under section 240A(d)(1) of the INA, the accrual of continuous physical presence ceases when the alien is provided with a notice to appear. However, the statute does not specifically address whether the notice to appear must include the time and place of the hearing to be held. However, section 239(a)(1)(G), which outlines statutory specifications for the notice to appear, states that the notice to appear shall specify “[t]he time and place at which proceedings will be held.” In short, the question was whether a notice to appear that did not confirm to section 239(a)(1)(G) was nevertheless sufficient for triggering the “stop-time rule” for the accrual of continuous physical presence for cancellation of removal purposes.

First Circuit Defers to Board of Immigration Appeals Interpretation

In 2011, the Board of Immigration Appeals (BIA) addressed the same issue that was before the First Circuit in a published decision titled Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011) [PDF version]. In Matter of Carmillo, the Board held that, for purpose of the stop-time rule for cancellation of removal in section 240A(d)(1), “any period of continuous residence or continuous physical presence of an alien … is deemed to end upon the service of a notice to appear on the alien, even if the notice to appear does not include the date and time of the initial hearing” (emphasis added).

The First Circuit ruled in favor of the Government, giving deference to the BIA’s reading of the stop-time rule from Matter of Carmillo. In so doing, the First Circuit applied what is called the “Chevron test,” originating in the Supreme Court decision Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) [PDF version]. Before explaining how this factored into the First Circuit’s decision, it is important to note that the BIA (and the immigration courts as well) are part of the Executive Branch of government rather than the judiciary. This means that they are administrative agencies tasked with interpreting statutes. As we will see, Chevron deals with when a judicial court must defer to the interpretation of an administrative agency.

We have discussed Chevron in many articles on site. For example, see our article on an interesting decision of the United States Court of Appeals for the Tenth Circuit on a different immigration law issue in De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015) [see article].

Under Chevron, a court must ask two questions when determining whether it must give deference to an agency’s interpretation of a statute:

1. Is the statute ambiguous?
2. If so, is the agency’s interpretation of the ambiguous statute reasonable?

In order for Chevron deference to be required, the statute must be ambiguous. If the statutory language is clear, the question for the court is whether the unambiguous language was applied correctly. If the statute is ambiguous, a court must then determine whether the agency’s interpretation of the statute was “reasonable.” In short, even if a statute is ambiguous, an agency may not interpret it in any manner that it desires. An agency’s interpretation of an ambiguous statute cannot be “arbitrary and capricious or contrary to the statute.” 866 F.3d at 11. The agency’s interpretation of a statute must be reasonable and in accord with the statutory text. If a court finds that a statute is ambiguous and that the agency’s interpretation of the statute is “reasonable,” it is required to defer to the agency’s interpretation. Thus, if Chevron deference applies, a court cannot substitute its own preferred reading for the agency’s reading.

In Pereira, the First Circuit concluded that the stop-time provision was ambiguous and that the Board’s interpretation of it in Matter of Carmillo was neither arbitrary and capricious nor contrary to the statute. Accordingly, the First Circuit found that Chevron controlled and it deferred to the Board’s reading of the provision, ruling that the issuance of a notice to appear that does not specify the time and place of an initial hearing does trigger the stop-time rule for cancellation.

Although we did not address it in detail, it is important to note that both the immigration judge and Board in Periera’s case had relied explicitly on Matter of Carmillo.

But See… Circuit Split on the Issue

The Supreme Court is generally more likely to review an issue where there is what is called a “circuit split.” In short, Federal circuit courts have jurisdiction over defined areas. The First Circuit, for example, exercises appellate jurisdiction over Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico. When two circuit courts disagree on an issue of law, the effect is that different precedents on the issue apply in different parts of the country. The Supreme Court has the ability to resolve circuit splits because its rulings are binding throughout the United States.

The First Circuit decision added to an already-existing split on the stop-time rule issue. Notably, in 2016, the United States Court of Appeals for the Third Circuit — which exercises appellate jurisdiction over Delaware, New Jersey, and Pennsylvania — reached the opposite result on the same issue in Orozco-Velasquez v. Attorney General U.S., 817 F.3d 78 (3d Cir. 2016) [PDF version].

In Orozco-Velasquez, the Third Circuit concluded that the statutes in question were not ambiguous, and that a notice to appear that does not comply with all the requirements of section 239(a) does not trigger the stop-time rule for the accrual of continuous physical presence for cancellation of removal. Because the Third Circuit determined that the statute was unambiguous, it did not accord deference to the Board’s precedent from Matter of Carmillo.

Interestingly, while the Third Circuit did not defer to the Board’s reading, a majority of its sister circuits have done so. The following is a list of some published circuit court opinions that determined that the relevant stop-time rule provisions were ambiguous and that the Board was entitled to deference:

Guaman-Yuqui v. Lynch, 786 F.3d 235 (2d Cir. 2015) [PDF version];
Urbina v. Holder, 745 F.3d 736 (4th Cir. 2014) [PDF version];
Gonzalez-Garcia v. Holder, 770 F.3d 431 (6th Cir. 2014) [PDF version] and
Yi Di Wang v. Holder, 759 F.3d 670 (7th Cir. 2014) [PDF version].

To highlight the effect of a circuit split, let us use our own law office as an example. Since The Law Offices of Grinberg & Segal, PLLC, is located in New York City, the majority of our cases arise in the jurisdiction of the First, Second, and Third circuits (note that we also have clients from other circuits, including, notably, the Seventh [see article] [link]). With this circuit split, a client in New Jersey (Third) would be subject to a different interpretation of the stop-time rule for cancellation purposes than would one of our clients in New York (Second) or Massachusetts (First). Accordingly, an individual whose cases arises in the Third Circuit may be eligible for cancellation where an individual whose cases arises outside of the Third Circuit would not be even with nearly identical circumstances pertaining to continuous physical presence.

Supreme Court Grants Cert

In granting certiorari (agreeing to hear the case), the Supreme Court requested briefing from the Government and from Pereira on the following question:

Whether, to trigger the stop-time rule by serving a ‘notice to appear,’ the government must ‘specify’ the items listed in the definition of a ‘notice to appear,’ including ‘[t]he time and place at which the proceedings will be held.

In short, the Supreme Court will consider whether a notice to appear must conform with all of the requirements of section 239(a)(1) of the INA in order to trigger the stop-time rule for cancellation of removal purposes under section 240A(d)(1). Although the Court singles out the point in section 239(a)(1)(G) that the notice to appear must specify “[t]he time and place at which the proceedings will be held,” its question applies to other points in the definition of the notice to appear at section 239(a)(1) as well.

Here, it is important to note that the Supreme Court, like the numerous lower courts have considered the issue, will first consider whether the statutes are ambiguous. If the Court agrees with the Third Circuit that section 240A(d)(1) is not ambiguous, it would not have to defer to the Board’s interpretation under Chevron. However, if the Court agrees with the government’s position that the statutes are ambiguous and the Board’s interpretation is reasonable, the effect would be that the notice to appear referred to in section 240A(d)(1) may be deficient under section 239(a)(1) but nevertheless sufficient to stop the accrual of continuous physical presence for cancellation of removal purposes. Although the Supreme Court may review its own precedents, there is no indication that it intends to reconsider Chevron in Pereira v. Sessions. Accordingly, we can expect that the Supreme Court will likely assess whether the Board’s interpretation of section 240A(d)(1) satisfies both prongs of the Chevron test.

Conclusion

Pereira v. Sessions joins a number of interesting pending Supreme Court cases on immigration issues. Provided that the Court ultimately resolves the case, it will be a significant and clarifying decision in the context of the stop-time rule for cancellation of removal. More broadly, the Court could issue a decision that provides further guidance to the government and the lower courts in reading provisions of the INA.

Although, as we noted, there is no reason to expect that the Court will use this case to reconsider Chevron, it will be an interesting case to watch in the broader administrative law contest (beyond just immigration). We have noted in multiple articles that now-Justice Neil Gorsuch has expressed concerns with the breadth of Chevron deference in his previous capacity as a judge on the Tenth Circuit [see blog]. For this reason, it will be interesting to examine Justice Gorsuch’s questioning in oral arguments and how he eventually falls the issue is this case (likewise, it will also be worth watching Justice Clarence Thomas, who has also expressed qualms with the current Chevron jurisprudence).

We will continue to update the website with information about this interesting case, including with a summary on the oral arguments once those occur and an article on the Court’s decision once it is issued.