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Supreme Court ruling has lawyers demanding that many deportation cases be tossed out

LOS ANGELES — Backlogged immigration courts from Boston to Los Angeles have been experiencing fallout from a recent US Supreme Court decision that has caused some deportation orders to be tossed and criminal charges dismissed.

The ruling, issued in June, addressed a procedural issue over how to provide notices to immigrants to appear in court for deportation proceedings. But it is having broader implications in courts that decide whether hundreds of thousands of people should be allowed to stay in the United States.

Since the Supreme Court decision, immigration attorneys have been asking judges to throw out their clients’ cases, and some immigration judges have refused to issue deportation orders.


In a recent case in Washington state, a judge tossed out the indictment of a Mexican farmworker who was charged with illegally reentering the country.

It isn’t clear how many cases could be affected. Some judges have denied attorneys’ requests, but others in states including Tennessee, New Jersey, and California have granted them.

‘‘The potential consequences of the decision are massive,’’ said Jeremy McKinney, an immigration attorney in Greensboro, N.C. .

The Supreme Court’s 8-to-1 decision focused on the case of a Brazilian handyman seeking to apply for a special green card given to immigrants who have been in the country at least 10 years, have good moral character, and whose American relatives would suffer if they were deported.

Wescley Pereira came to the United States on a tourist visa from Brazil in 2000 and settled in Martha’s Vineyard, Mass., where he has two American-born children.

In 2006, Pereira was arrested for operating a vehicle under the influence and given a notice to appear in immigration court, but it didn’t include specifics about his hearing. More than a year later, a mailer with that information was sent to him but got returned as undeliverable, and an immigration judge ordered him deported when he didn’t show up.


Pereira was pulled over in 2013 for driving without headlights on, and with the deportation order on his record, immigration authorities detained him.

By then, he had lived in the country long enough to seek a green card. But the government said Pereira could only count the time before he received the notice toward his green card aspirations.

The Supreme Court disagreed, saying a notice that doesn’t list the time and place of a hearing isn’t a notice under the law, and that Pereira was building up time in the country toward his application all the while.

Without listing time and place, ‘‘the Government cannot reasonably expect the noncitizen to appear for his removal proceedings,’’ Justice Sonia Sotomayor wrote in the majority decision.

Justice Samuel Alito issued a lone dissent, saying the government can’t put an accurate date on notices since one agency issues them and another sets the hearings. Simply adding an arbitrary date, he said, is likely to ‘‘mislead many recipients and to prejudice those who make preparations on the assumption that the initial date is firm.’’

Since the ruling, lawyers have been arguing that undated notices their clients received in recent years aren’t valid.

In some cases, they’re asking for deportation cases to be thrown out and in others for a deportation order to be wiped from immigrants’ records so they can get another chance to argue they should be allowed to remain in the country.


‘‘You can’t really order someone deported for not showing up when you didn’t tell them when to show up,’’ McKinney said.

Immigration and Customs Enforcement has been pushing back. The agency, part of the Department of Homeland Security, has been appealing judges’ decisions to throw out deportation cases.

A spokesman for the Executive Office for Immigration Review, part of the Department of Justice, said a mechanism is being worked out so Homeland Security can issue notices with a specific date, time, and place, but those without can still be accepted by the immigration courts.

Already backlogged, the immigration courts have more than 700,000 cases pending.