Supreme Court ruling on Martha’s Vineyard man could change how some deportation proceedings are initiated

The US Supreme Court ruled Thursday in favor of a Brazilian immigrant who lives on Martha’s Vineyard in his fight against deportation, a decision that legal specialists said will force immigration officials to change how some deportation proceedings are initiated.

Under US immigration law, receiving a notice to appear in immigration court prevents some who are living in the country illegally from accruing the time necessary to qualify for deportation relief.

But in an 8-1 vote, the high court held that a “notice to appear” in immigration court with the date and time written as “to be set” does not provide enough information to trigger what’s known as the “stop-time rule.”


“What the Supreme Court said today is the government has to do what the statute says, and at the very least, provide the time and place the hearing will be held,” said David Zimmer, who represented Wescley Fonseca Pereira, a handyman who is married and has two US-born children. “And if it doesn’t, the person can continue to stack time.”

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Pereira was seeking relief from deportation under a provision that requires 10 years of residency. The government argued he was not entitled to relief because a notice to appear in immigration court stops the clock on accruing the necessary time. Thursday’s ruling “makes it harder for the government to bar people from applying for relief,” he said. “Doesn’t mean they’ll get it, but they’ll get over this timing hurdle.”

Pereira, who was unavailable for comment, can now move forward with his application for “cancellation of removal,” Zimmer said.

Immigration lawyers hailed the ruling as a signal that the Supreme Court won’t rubber-stamp the executive branch’s interpretation of immigration laws, specialists said.

“These are tough laws. Often, the government wants to take these laws to a more extreme interpretation than they need to,” said Rachel Rosenbloom, co-director of the Northeastern University School of Law Immigrant Justice Clinic. “This case reaffirms that courts are ready to take the arguments of immigrants seriously.”


Justice Sonia Sotomayor wrote the high court’s opinion, saying the case hinged on a “narrow question.”

“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,” she wrote. “The plain text, the statutory context, and common sense all lead inescapably and unambiguously to that conclusion.”

Justice Samuel Alito Jr. was the lone dissenter, writing that the court “is simply ignoring” what’s known as Chevron deference, the practice of accepting a government agency’s interpretation of ambiguous laws.

“Although this case presents a narrow and technical issue of immigration law, the Court’s decision implicates the status of an important, frequently invoked, once celebrated, and now increasingly maligned precedent,” he wrote. “Here, a straightforward application of Chevron requires us to accept the Government’s construction of the provision at this time.”

The government argued in court documents that the “administrative realities of removal proceedings render it difficult to guarantee each noncitizen a specific time, date, and place for his removal proceedings.”


According to court documents, “nearly 100 percent” of notices to appear in court that have been issued by the Department of Homeland Security over the past three years omit time and date information.

The notices are issued by DHS, typically through Immigration and Customs Enforcement, but immigration court falls under the jurisdiction of the Department of Justice. Neither agency responded to e-mails seeking comment about the ruling.

Pereira arrived in the United States from Brazil on a six-month tourist visa in 2000 and never left. In 2006, 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 before the hearing, according to documents. He did not appear in court and “was ordered removed in absentia,” records show.

Pereira argued that he wasn’t in court because he never received the updated notice, saying it was sent to his street address and not his mailing address. In 2013, he successfully petitioned to have his case reopened.

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 US and have citizen family members who will experience hardships if they are deported.

But an immigration judge ruled that the notice to appear Pereira received made him ineligible. Pereira appealed, arguing that the clock should have kept ticking because the notice to appear didn’t include a time and date.

Andrew Arthur, a resident fellow in law and policy at the Center for Immigration Studies, a nonprofit that advocates for stricter immigration laws, said that even an imperfect notice to appear still qualifies as notice.

“ICE may not have the ability to coordinate with the immigration court to determine the time and date” of the hearing, said Arthur, a former immigration judge. “There has to be a docket that has space available on it at a specific time. And if you’re going to hold up the entire process for that, it’s going to be problematic.”

The ruling, he said, will exacerbate what is already a significant and growing backlog of cases in immigration court.

Kari Hong, a Boston College Law School professor who specializes in immigration law, said the ruling may force immigration officials to rethink the policy of not prioritizing who to target for removal proceedings.

“You can’t put 11 million people in immigration court with the number of judges that we have,” she said. “That would be a backlog 50 years long.”

Akilah Johnson can be reached at Follow her on Twitter @akjohnson1922.