Pereira v. Sessions, No. 17–459.

• Court: United States Supreme Court
• Writing for the Court: Justice SOTOMAYOR delivered the opinion of the Court.
• Citation: 138 S.Ct. 2105,201 L.Ed.2d 433
• Parties: Wescley Fonseca PEREIRA, Petitioner v. Jefferson B. SESSIONS, III, Attorney General.
• Docket Number: No. 17–459.
• Decision Date: 21 June 2018

138 S.Ct. 2105
201 L.Ed.2d 433

Wescley Fonseca PEREIRA, Petitioner
v.
Jefferson B. SESSIONS, III, Attorney General.

No. 17–459.

Supreme Court of the United States

Argued April 23, 2018.
Decided June 21, 2018.

David J. Zimmer, Boston, MA, for Petitioner.

Frederick Liu, for Respondent.

David J. Zimmer, Alexandra Lu, Goodwin Procter LLP, Jeffrey B. Rubin, Todd C. Pomerleau, Rubin Pomerleau PC, Boston, MA, William M. Jay, Goodwin Procter LLP, Washington, DC, for Petitioner.

Noel J. Francisco, Solicitor General, Chad A. Readler, Acting Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Jonathan C. Bond, Assistant to the Solicitor General, Donald E. Keener, John W. Blakeley, Patrick J. Glen, Attorneys, Department of Justice, Washington, D.C., for Respondent.

Justice SOTOMAYOR delivered the opinion of the Court.

Nonpermanent residents, like petitioner here, 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. 8 U.S.C. § 1229b(b)(1). Under the so-called "stop-time rule" set forth in § 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 section 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 "[t]he time and

138 S.Ct. 2110

place at which the [removal] proceedings will be held." § 1229(a)(1)(G)(i).¹

The narrow question in this case lies at the intersection of those statutory provisions. If the Government serves a noncitizen with a document that is labeled "notice to appear," but the document fails to specify either the time or place of the removal proceedings, does it trigger the stop-time rule? The answer is as obvious as it seems: No. A notice that does not inform a noncitizen when and where to appear for removal proceedings is not a "notice to appear under section 1229(a)" and therefore does not trigger the stop-time rule. The plain text, the statutory context, and common sense all lead inescapably and unambiguously to that conclusion.

I

A

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–546, the Attorney General of the United States has discretion to "cancel removal" and adjust the status of certain nonpermanent residents. § 1229b(b). To be eligible for such relief, a nonpermanent resident must meet certain enumerated criteria, the relevant one here being that the noncitizen must have "been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [an] application" for cancellation of removal. § 1229b(b)(1)(A).²

IIRIRA also established the stop-time rule at issue in this case. Under that rule, "any period of ... continuous physical presence in the United States shall be deemed to end ... when the alien is served a notice to appear under section 1229(a) of this title."³ § 1229b(d)(1)(A). Section 1229(a), in turn, provides that "written notice (in this section referred to as a ‘notice to appear’) shall be given ... to the alien ... specifying":

"(A) The nature of the proceedings against the alien.

"(B) The legal authority under which the proceedings are conducted.

"(C) The acts or conduct alleged to be in violation of law.

"(D) The charges against the alien and the statutory provisions alleged to have been violated.

"(E) The alien may be represented by counsel and the alien will be provided (i) a period of time to secure counsel under subsection (b)(1) of this section and (ii) a current list of counsel prepared under subsection (b)(2) of this section.

"(F)(i) The requirement that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted respecting proceedings under section 1229a of this title.

"(ii) The requirement that the alien must provide the Attorney General immediately with a written record of any

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change of the alien's address or telephone number.

"(iii) The consequences under section 1229a(b)(5) of this title of failure to provide address and telephone information pursuant to this subparagraph.

"(G)(i) The time and place at which the [removal] proceedings will be held.

"(ii) The consequences under section 1229a(b)(5) of this title of the failure, except under exceptional circumstances, to appear at such proceedings." § 1229(a)(1) (boldface added).

The statute also enables the Government to "change or postpon[e] ... the time and place of [the removal] proceedings." § 1229(a)(2)(A). To do so, the Government must give the noncitizen "a written notice ... specifying ... the new time or place of the proceedings" and "the consequences ... of failing, except under exceptional circumstances, to attend such proceedings." Ibid. The Government is not required to provide written notice of the change in time or place of the proceedings if the noncitizen is "not in detention" and "has failed to provide [his] address" to the Government. § 1229(a)(2)(B).

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 paragraph (1) or (2) of section 1229(a)" 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." § 1229a(b)(5)(A). 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 paragraph (1) or (2) of section 1229(a)," he "was provided oral notice ... of the time and place of the proceedings and of the consequences" of failing to appear. § 1229a(b)(7). 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 paragraph (1) or (2) of section 1229(a)." § 1229a(b)(5)(C)(ii).

B

In 1997, shortly after Congress passed IIRIRA, the Attorney General promulgated a regulation stating that a "notice to appear" served on a noncitizen need only provide "the time, place and date of the initial removal hearing, where practicable. " 62 Fed.Reg. 10332 (1997). Per that regulation, the Department of Homeland Security (DHS), at least in recent years, almost always serves noncitizens with notices that fail to specify the time, place, or date of initial removal hearings whenever the agency deems it impracticable to include such information. See Brief for Petitioner 14; Brief for Respondent 48–49; Tr. of Oral Arg. 52–53 (Government's admission that "almost 100 percent" of "notices to appear omit the time and date of the proceeding over the last three years"). Instead, these notices state that the times, places, or dates of the initial hearings are "to be determined." Brief for Petitioner 14.

In Matter of Camarillo, 25 I. & N. Dec. 644 (2011), the Board of Immigration Appeals (BIA) addressed whether such notices trigger the stop-time rule even if they do not specify the time and date of the removal proceedings. The BIA concluded that they do. Id., at 651. It reasoned that the statutory phrase "notice to appear ‘under section [1229](a)’ " in the stop-time rule "merely specifies the document the DHS must serve on the alien to trigger the

138 S.Ct. 2112

‘stop-time’ rule," but otherwise imposes no "substantive requirements" as to what information that document must include to trigger the stop-time rule. Id., at 647.

C

Petitioner Wescley Fonseca Pereira is a native and citizen of Brazil. In 2000, at age 19, he was admitted to the United States as a temporary "non-immigrant visitor." App. to Pet. for Cert. 3a. After his visa expired, he remained in the United States. Pereira is married and has two young daughters, both of whom are United States citizens. He works as a handyman and, according to submissions before the Immigration Court, is a well-respected member of his community.

In 2006, Pereira was arrested in Massachusetts for operating a vehicle while under the influence of alcohol. On May 31, 2006, while Pereira was detained, DHS served him (in person) with a document labeled "Notice to Appear." App. 7–13. That putative notice charged Pereira as removable for overstaying his visa, informed him that "removal proceedings" were being initiated against him, and provided him with information about the "[c]onduct of the hearing" and the consequences for failing to appear. Id., at 7, 10–12. Critical here, the notice did not specify the date and time of Pereira's removal hearing. Instead, it ordered him to appear before an Immigration Judge in Boston "on a date to be set at a time to be set." Id., at 9 (underlining in original).

More than a year later, on August 9, 2007, DHS...