Pereira v. Sessions: How One Decision Can Affect Thousands of Immigration Cases

On June 21, 2018, the Supreme Court ruled on the validity of a “Notice to Appear” or NTA, as it related to the immigration case of Wescley Fonseca Pereira, a Brazilian immigrant. A “Notice to Appear” is basically a piece of paper, or notice, informing undocumented immigrants that they need to report to a court hearing on a specific date and time; in essence, it starts immigration court proceedings. When undocumented immigrants fail to appear at the scheduled court hearing, they are automatically ordered to be removed, or deported.  

Mr. Pereira’s Case:

Pereira entered the country with a visitor visa in 2000. He ended up staying and started a family. He was arrested in 2006 for a DUI and then referred to the Department of Homeland Security (DHS). While he was detained, DHS gave Pereira an NTA to appear in immigration court. The NTA Pereira received did not have a specific date and time listed.

In 2007, DHS sent the updated NTA (with a specific date and time) to the immigration court, and then the immigration court sent that updated notice to Pereira, but Pereira never received it because it was sent to the wrong address. Pereira didn’t know about his scheduled court hearing, failed to appear, and was ordered to be removed.

In 2013, Pereira was arrested again. As the father of two U.S. citizen daughters and having spent over ten years in the country, he could have attempted to apply for Cancellation of Removal. However, the ten years of continuous presence in the country should be uninterrupted. What “continuous presence” means is that the undocumented immigrant did not leave the country at any point in between and was not entered into immigration court proceedings before reaching the ten years. Because Pereira received an NTA in 2006, he was thought to have entered immigration court proceedings by DHS and the immigration court. His presence would only be counted until 2006; only six years, not ten.  

The Supreme Court studied his case and brought up the NTA. Could the initial NTA Pereira received be considered an adequate NTA? The Supreme Court ruled, , in an 8-1 vote, that the NTA was defective, and, therefore, not an NTA because it did not include a specific date and time, which is the main function of the notice. The updated NTA that had a date and time was not valid either because Pereira never received it and was never informed of the court hearing.

With the ruling, Pereira’s presence was not technically stopped in 2006. In 2013, when he was arrested and referred to DHS, he had already accumulated ten years of continuous presence, and could therefore fulfill the ten-year continuous presence requirement for Cancellation of Removal.

This Supreme Court decision sets a precedent that may affect a majority of immigration cases for undocumented immigrants. Most of my clients have cases that started with NTAs that don’t have dates or times listed. Instead of actual dates or times, “to be determined” is printed where the date and time should be. If DHS were to attempt to do things correctly, they would have to terminate all pending cases and begin again with adequate NTAs. This also affects cases in which individuals never received updated NTAs and consequently didn’t appear to their court hearings and were ordered to be deported. Their cases could technically be reopened for lack of notice.

This recent decision opens multiple doors for immigration cases. Some law practitioners are hopeful, while some, including myself, are cautious regarding the future implications of this decision. It is possible that DHS will find a way of diffusing the impact of this decision on their pending cases and cases that have been closed for years. This is yet another immigration issue that has yet to clarify its effects.

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