A case involving an immigrant from Brazil who lives on Martha’s Vineyard was argued before the US Supreme Court Monday. And while the case won’t determine whether the man will be allowed to stay in the country, the decision could have broader implications for how immigration authorities initiate some deportation proceedings.
The legal question in the case centers on whether a “notice to appear” in immigration court with the time and date written as “to be determined” is considered adequate notice. Under federal immigration law, once a person receives notice to appear in immigration court, the proverbial clock that allows some immigrants in the country illegally to accrue the necessary time to qualify for deportation relief effectively stops.
“This is an important issue that will affect quite a few people,” said Rachel Rosenbloom, co-director of the Northeastern University School of Law Immigrant Justice Clinic. “The question here is, does he get to have his day in court or not? The question [also] is: Is he eligible to apply” for special consideration?
Wescley Fonseca Pereira arrived in the United States from Brazil on a six-month tourist visa in 2000 and never left. About 5½ year later, he was charged with drunken driving and was given a notice to appear in immigration court while in detention, according to court documents.
The notice ordered him to appear in Boston immigration court “on a date to be set at a time to be set to show why [he] should not be removed from the United States,” according to documents filed in the Supreme Court case.
Pereira’s immigration court date was later set for Oct. 31, 2007, and he was sent a notice six weeks prior to the hearing, according to documents. He did not appear in court and, records show, “was ordered removed in absentia.”
Pereira argued in court documents that he wasn’t in court because he never received the updated notice, saying it was sent to his physical address in Oak Bluffs and not his mailing address. He petitioned to have his case reopened in March 2013, and the request was granted.
During the new proceedings, he asked that the deportation order be canceled under a special provision for immigrants in the country illegally “who have significant ties to the country and have US citizen family members who will experience hardships if they are deported,” explained Rosenbloom, who does not represent Pereira.
“The idea is, someone who is facing deportation can ask for a chance to remain here, and an immigration judge can make a discretionary decision weighing all the factors,” she said.
But an immigrant needs to be in the country for 10 years to be eligible for that discretionary relief. A notice to appear in immigration court stops the clock on accruing the necessary time.
“They haven’t let him file the application yet because of this issue of whether he has the required number of years in the country,” said David Zimmer, who argued the case before the Supreme Court on Pereira’s behalf. “If you’re not eligible, you can’t even apply. It’s a big deal.”
Zimmer said Pereira, who is married and has two US-born children, was not available Monday to comment on the case. He expects a decision in late June.
According to court documents, Pereira argued that the clock should have kept ticking because the notice to appear didn’t include a time and date.
An immigration judge disagreed, saying “the omission of a date and time certain from the notice to appear did not ‘somehow . . . negate the service of the Notice to Appear insofar as it would cut off [petitioner’s] continuous service,’ ” according to the brief filed on behalf of Attorney General Jeff Sessions, who is named as defendant in the suit.
Pereira appealed to the Board of Immigration Appeals, which upheld the judge’s decision. The Supreme Court agreed to hear the case in September.
“It seems like a very dry and boring statutory question, but a lot more is at stake,” said Kari Hong, a Boston College Law School professor who specializes in immigration law.
Should the nation’s highest court side with Pereira, she said, “it will give protection to people to make sure they have an actual time and date for when they need to show up.”
Andrew “Art” Arthur, a resident fellow in law and policy at the Center for Immigration Studies, a nonprofit that advocates for stricter immigration laws, doesn’t think that’s going to happen.
“The fact is the plain language of the provision doesn’t have anything that states the date of the hearing has to be part of it,” he said.
And this is an instance, he said, when federal immigration authorities are entitled to what’s known as “Chevron deference,” a practice in which courts give so-called expert agencies the benefit of the doubt in decision-making when laws are ambiguous.
“That should be the end of the issue,” he said.
But Justice Neil Gorsuch, who is the newest member of the bench, is a skeptic of Chevron deference. His decision, and that of the entire court, has implications not only for Pereira and other immigrants like him, but also could reshape how Congress, federal courts, and administrative agencies function, legal experts said.
“People are watching Gorsuch,” Hong said.
On Wednesday, the Supreme Court will also hear arguments on Hawaii’s challenge to President Trump’s travel ban. The policy under review applies to travelers from five countries with overwhelmingly Muslim populations: Iran, Libya, Somalia, Syria and Yemen. It also affects two non-Muslim countries, blocking travelers from North Korea and some Venezuelan government officials and their families.