Pereira v. Sessions -What Does It Mean?
What Is The Significance Of Pereira v. Sessions?
Recently, the United States Supreme Court issued an opinion for the case, Pereira v. Sessions (June 21, 2018). I will not discuss the factual details of the case. I will discuss the results and the effects the case has had on my immigration law practice from a practical standpoint.
I will also discuss how it may be helpful to people in removal proceedings or subject to potential removal proceedings at this time. Some background information is needed to understand the case and the results. This I will provide below, but I will try to keep it as limited as possible.
**Disclaimer** This is not legal advice whatsoever, it is merely a discussion (I have plenty of questions after the decision myself!).
Background information:
Removal Proceedings (this is what it is called when the U.S. government is trying to deport someone) are initiated by a document called a “Notice to Appear” (hereinafter NTA).
An NTA (per federal law) must follow a certain set of rules (if you want to know more about these rules check out the actual supreme court opinion at https://www.supremecourt.gov/opinions/17pdf/17-459_1o13.pdf ).
A good analogy is a criminal complaint in New Jersey criminal court. The complaint tells a person what they are charged with, when they have to appear in court, and where that court is located, among other important information.
Anyway, for years the Department of Homeland Security (hereinafter DHS) who represent the U.S. government in individual removal proceedings was issuing NTAs that did not specify when alleged removable aliens were to appear in U.S. Immigration Court.
The NTA would simply say, “at unknown time” and “unknown date” or “to be determined”. Eventually, one would get a new notice (sometimes years later) actually specifying when one should appear in court.
And then everything changed! During the month of June, the U.S. Supreme Court in Pereira v. Sessions said a Notice to Appear without a valid date and time is not a valid NTA (not quoting here). In my opinion, this does make sense. How is the government going to charge a person as a removable alien and then not tell them when and where to show up to court to defend the charges?
Unfortunately for the U.S. government, they have not been issuing proper NTAs for the past 6-7 years. And after Pereira v. Sessions, all of the improper NTAs became invalid. Overnight, the entire “immigration world” was turned upside down.
My AILA (American Immigration Lawyers Association) email list was going crazy! So what did the U.S. Supreme Court actually mean with its ruling? I’m still not entirely sure, but I will give some theories below.
To delve into the results of the ruling, one must know some more background information (I know I was trying to avoid this, but it’s just unavoidable). Here is my quickest version of the facts and explanation of Pereira v. Sessions in my own words:
How Does Pereira v. Sessions Affect You?
Once removal proceedings are initiated, an alien can request a “form of relief” called “cancellation of removal for non-permanent residents” (hereinafter cancellation) and one requirement for cancellation is that the alien has ten (10) years continuous residence in the U.S. Once an NTA is issued the accrual of this ten (10) year time period is deemed to stop or be “cut off”.
Now, one may start to see why, among other reasons, the NTA is very important. If, for example, an alien has been living in the U.S. for nine (9) years and the government issues them an NTA before they accrue ten (10) years’ continuous residence, then that person is not (statutorily) eligible for cancellation.
One thing the Supreme Court made clear with its ruling is that people who had the ten (10) year continuous residence period “cut off” by an invalid NTA did not actually have the time period “cut off”. Considering the backlog in the current immigration court system and the length of time that the U.S. Government has been issuing invalid NTA’s, many (and I mean many - like thousands, maybe tens of thousands, maybe even over one hundred thousand) alleged removable aliens became statutorily eligible for cancellation.
This is exactly what the government was trying to prevent when they issued an NTA before the ten (10) year period. However, it appears that they tried to take a shortcut by issuing NTAs without all of the information proscribed by law (so don’t take shortcuts, they rarely work out!).
Of course, feisty immigration lawyers all around the country (smelling blood in the water) said to themselves, “how far can we take this ruling, what else can we get out of this ruling that will be beneficial to our clients”? If the NTA, the original charging document, one of the most fundamental documents to an entire removal proceeding, is invalid, does that mean the whole proceeding itself is invalid? Should the entire proceeding be terminated?! And that is exactly what many of them have decided to try, “motions to terminate”.
Accordingly, a good deal of immigration judges have ruled very differently on the aforementioned motions. Some immigration judges started granting the motions, others said, no, stop this “madness”, Pereira v. Sessions did not go that far! Regardless, most judges and lawyers were being humble about this entire process, but reportedly some DHS counsel are angered by the motions, even saying that a motion to terminate under a Pereira theory is frivolous! (Me personally, I don’t take this stuff to heart. The game is the game, and I don’t make the game. I leave that up to the judges and lawmakers. I just try to win the game!)
DHS response to Pereira has been very straightforward. They are trying to fix NTA’s preemptively for cases that just started and may have ten (10) year continuous presence issues. Furthermore, if a case is terminated under a Pereira theory, then DHS is quickly reissuing proper NTAs to the respondent in question. My question is how does this affect cases where removal orders were already issued? If the case was considered invalid from the beginning, wouldn’t any decision rendered in that case be invalid? Do all of those cases have to be re-litigated? Will those cases be reopened?
Honestly, a situation like that would be amazing for me as an immigration lawyer (approximately a million new potential clients would become available to me), but it would be Armageddon for the U.S. immigration system, which is already strained. I hope the Board of Immigration Appeals (BIA) provides further guidance soon. I then hope the federal U.S. district courts provide more guidance and this is resolved shortly.
Obviously, I am a U.S. immigration lawyer and I want what is best for my clients. At the same time, I am an American and I ultimately want what is best for my country (there will always be immigration clients for me when the rules are written in such a complex fashion, no matter what the rules are!). Again, I don’t make the game; I am just trying to win the game!
In closing, America is a country of laws, not men! I literally have no idea how this will all work out, but the U.S. government apparently made a big mistake here and is severely paying the price. Donald Trump and Sessions are probably working day and night to mitigate and/or correct this mistake, but some serious damage has already been done.
I leave you with this- Trump is building a wall, call the Law Offices of Dizengoff and Yost (to stay on this side of it!).
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