Pereira v. Sessions and Trump v. Hawaii SCOTUS Recaps
Nonpermanent residents who are subject to removal but who have had 10-years of continuous physical presence in the U.S. may seek discretionary relief known as cancellation of removal.
Under the “stop-time” rule, the 10-year physical presence is deemed to end when the noncitizen is served with a notice under 8 U.S.C Sec. 1229(a) to appear at a removal proceeding. The statute states that the notice contain the “time and place” at which removal proceedings will be held.
In Pereira v. Sessions, decided June 21, the Court held that a notice which does not include the specific time and place of the removal proceedings does not trigger the stop-time rule.
Wescley Pereira, a native of Brazil, entered the U.S. in 2000 on temporary “non-immigrant visitor” status. After his visa expired, he married, had children who are U.S. citizens, and has had gainful employment.
In 2006, he was convicted of driving while intoxicated. He received a notice of removal which informed him to appear at a removal proceeding “on a date to be set at a time to be set.”
Later, the Immigration Court mailed Pereira a specific time and place, but sent this to a street address which was not the address Pereira had previously provided to immigration authorities. That notice was returned to the court as undeliverable.
When Pereira did not appear at his removal proceeding, the court ordered him removed in absentia. Pereira, however, continued living in the U.S..
In 2013, after Pereira had been in the U.S. continuously for more than 10 years, he was arrested for driving without his headlights on. The Government then sought to carry out his previously-ordered removal.
Pereira applied for cancellation of removal. But the Government contended he was not eligible to apply for cancellation because his 10-year continuance presence “stopped” in 2006 when he was served with the notice of removal. At that time, Pereira had only been in the U.S. for six years.
The lower courts agreed with the Government, but the Supreme Court reversed.
Ruling 8-1, the Court held that as a matter of statutory construction, the “stop time” rule is not triggered unless the notice to appear states a specific time and place for the removal proceeding.
“The statutory text alone is enough to resolve this case,” the Court said. “[B]ased on the plain text of the statute, it is clear that to trigger the stop-time rule, the Government must serve a notice to appear that, at the very least, ‘specif[ies]’ the ‘time and place’ of the removal proceedings.”
“A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a),’
and so does not trigger the stop-time rule,” the Court said.
The Court said that “common sense” compels this holding because “[i]f the three words ‘notice to appear’ mean anything in this context, they must mean that, at a minimum, the Government has to provide noncitizens ‘notice’ of the information, i.e., the ‘time’ and ‘place,’ that would enable them ‘to appear’ at the removal hearing in the first place.”
Trump “travel-ban” upheld
In an immigration case that received wide publicity, Trump v. Hawaii, decided June 26, a 5-4 majority upheld President Trump’s authority to issue a proclamation restricting entry of noncitizens from certain countries.
The Court held that that the Immigration and Nationality Act, 8 U.S.C. Sec. 1182(f), gives the President authority to restrict entry of aliens whenever he finds that their entry “would be detrimental to the interests of the United States.”
The Court also rejected a claim that the policy violates the Establishment Clause of the First Amendment. Even though most people affected by the proclamation come from Muslim-majority countries, “[t]he Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices,” the Court said. “The text says nothing about religion.”