The Supreme Court Takes on Notice to Appear

On Monday, the Supreme Court heard another case that will have impact on immigration law. At question in Pereira vs. Sessions was whether a “Notice to Appear” needs to tell its recipient where and when to appear in court, and how far the courts should extend deference to an administrative agency. If the court finds against Pereira, it will be harder for undocumented immigrants to qualify for certain kinds of relief.

Wescley Pereira entered the United States from Brazil in 2000 on a six-month tourist visa. He overstayed that visa, which made him eligible for deportation, and in May 2006, Department of Homeland Security served him with a Notice to Appear in a Boston immigration court “on a date to be set at a time to be set.” With no date or time to appear on the document, Pereira continued to live in Martha’s Vineyard for another seven years. During his time in the States, Pereira married, had two daughters who are citizens, and worked as a painter, landscaper and handyman. When the court set a time and date, it sent that information to the wrong address and Pereira never received it. He didn’t show up for his hearing, so the judge ordered him removed. 

Pereira wasn’t detained until he was arrested for a motor vehicle violation in 2013. He sought relief in the form of “cancellation of removal,” which immigrants out of status may be eligible for if they meet a number of criteria, one of which is 10 years of continuous physical presence in the United States. Pereira had that, but the Immigration and Nationality Act specifies that the period ends when the immigrant receives a Notice to Appear, which is, in effect, the start of deportation proceedings. Because his Notice to Appear didn’t include basic information about where and when to appear, Pereira has appealed its validity. If the 2006 Notice to Appear was valid, then Pereira would be ineligible for cancellation of removal.

The Board of Immigration Appeals ruled that the information did not need to be on a Notice to Appear for the document to be valid, and the First Circuit Court of Appeals upheld that decision. It recognized that the Immigration and Nationality Act that maps out the conditions for eligibility for cancellation of removal is ambiguous on the point, but that DHS’ interpretation is reasonable. The courts have held that in similar cases, deference goes to the administrative agency.

If the Supreme Court upholds the lower courts’ decisions, DHS could serve Notices to Appear to immigrants out of status that serve no administrative function other than to stop the accrual of time in the U.S. to prevent immigrants from becoming eligible for cancellation of removal. 

Monday’s oral arguments focused on the Kafka-esque Notice to Appear that tells the recipient neither where or when to appear before a judge. Attorney for the government Frederick Liu defended the practice, contending that the case load that immigration courts face make such details impractical. When Justice Anthony Kennedy asked what percentage of Notices to Appear go out without a time or date, Liu answered, “The vast majority, nearly 100 percent.”

Justice Neil Gorsuch continued to show his concern about the government’s exercise of power that he demonstrated recently in Sessions v. Dimaya when he questioned Liu on the government’s definition of a Notice to Appear, and what it needs to include to actually serve its purpose. “When does the emperor have no clothes?" he asked.

If the Supreme Court sides with Pereira, the decision could have a significant impact on the deportation cases for large numbers of people in the U.S. without lawful immigration status. It is not clear whether such a decision would be retroactive, but if it were, it could also open up a new form of relief for people who currently have cases pending before the immigration courts, or even those who already have deportations. All of this hinges on the Supreme Court’s decision, which is expected in June.