Eight justices sided with Wescley Fonseca Pereira in his argument that a government-issued document notifying him of the government’s intention to initiate removal proceedings against him did not stop the clock on his continuous physical presence in the United States, leaving him eligible for potential relief from removal. At a time when immigrants are frequently […]
Eight justices sided with Wescley Fonseca Pereira in his argument that a government-issued document notifying him of the government’s intention to initiate removal proceedings against him did not stop the clock on his continuous physical presence in the United States, leaving him eligible for potential relief from removal. At a time when immigrants are frequently dehumanized, it is worth noting that the majority opinion, signed by eight members of the court, not only expressly affirms Pereira’s contributions to his community, but also eschews entirely the use of the statutory term “alien” in favor of “noncitizen,” a term that the court defines in footnote 1.
Pereira has lived in the United States since 2000. He entered on a visitor’s visa at the age of 19. When that visa expired, he remained in the country without legal authorization. Lacking legal status, he is removable. But Congress has created a form of relief from removal – cancellation of removal – for a small number of otherwise removable noncitizens if they have 10 years of continuous physical presence in the country and meet certain other requirements. 8 U.S.C. § 1229(b)(b). The accrual of the 10-year period of continuous residence ends when the noncitizen is served with a “notice to appear under [8 U.S.C.] § 1229(a).” Section 1229(a), in turn, provides that the government shall serve a “written notice (in this section referred to as a ‘notice to appear’) … specifying[,]” among other things, “[t]he time and place at which the [removal] proceedings will be held.”
In 2006, the government served Pereira personally with a document labeled a notice to appear that stated the government’s intention to initiate removal proceedings against him. That document did not contain the date of the intended proceedings. Although the government tried to argue that the document stopped Pereira’s accrual of continuous physical presence, the Supreme Court held that the statutory requirements of section 1229(a) are definitional: A document that does not contain statutorily enumerated information is not a “notice to appear” for purposes of the cancellation of removal provision, and, in this case, did not stop Pereira’s accrual of continuous physical presence.
The decision is significant for at least four reasons. First, it is obviously significant to Pereira. Because the document he received in 2006 was not a “notice to appear” for purposes of the cancellation provision, he continued to accrue physical presence after it was served, and now has more than the 10 years required to qualify for cancellation of removal. A court can now determine whether he is otherwise eligible for this relief.
Second, this decision is significant to many other immigrants who received notices like Pereira’s. The clock continued to run on their physical presence in the U.S. after they received notices without dates, which will potentially enable them to qualify for relief from removal that would have been unavailable had the continuous-physical-presence clock stopped upon their receipt of the dateless notices. It seems quite likely that many immigrants, including some of those who already have been removed, can attempt to reopen their cases if they were erroneously determined to be statutorily ineligible for cancellation because of insufficient continuous physical presence at the time of the dateless notice.
Third, the majority decision, and more pointedly, Justice Anthony Kennedy’s concurrence, stresses the need for courts to engage in their own, independent appraisals of statutory text before capitulating to an agency’s conclusion that a statute is ambiguous. The justices do not back away from the principle articulated in 1984 in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. that courts should defer to an agency’s legitimate interpretation of an ambiguous statute. But the justices in the majority are clear that Chevron deference does not come into play unless there is, in fact, statutory ambiguity. On the question presented in this case, Justice Sonia Sotomayor, writing for the majority, finds that “the Court need not resort to Chevron deference, as some lower courts have done, for Congress has supplied a clear and unambiguous answer to the interpretive question at hand.”
The majority then uses ordinary tools of statutory construction – relying heavily on the plain meaning of the text – to conclude that the statute here unambiguously requires the stop-time NTA to contain the hearing date. They also conclude that surrounding statutory provisions, including the NTA amendment process specified within Section 1229(a) and the statutory right to receive notice sufficient to secure counsel, all bolster the plain-language reading of the statute requiring the NTA to contain a date. And they note that common sense would require that a “notice to appear” notify the recipient as to when and where to appear.
Contrary to the government’s claim (echoed in Justice Samuel Alito’s dissent), the court finds that the word “under” generates no ambiguity in this statute. “Based on the plain language and statutory context discussed above, we think it obvious that the word ‘under’ as used in the stop-time rule, can only mean ‘in accordance with’ or ‘according to,’ for it connects the stop-time trigger in §1229b(d)(1) to a ‘notice to appear’ that contains the enumerated time-and-place information described in §1229(a)(1)(G)(i).” The court makes swift work of the government’s other efforts to create textual ambiguities through comparisons with different statutory provisions, which the justices in the majority find to be irrelevant to their interpretation of the provision at hand.
The majority also rejects the government’s efforts to turn away from the text and look to the practical concerns raised by the date requirement. The court could have simply concluded that the practical concerns are irrelevant given the text, but it did not. Instead, the majority opinion concludes that the concerns voiced by the government and the dissent – namely, that the requirement will result in multiple notices with different dates, will generate confusion as to hearing dates and may result in unscrupulous government gaming – are unfounded.
Finally, the majority examines and rejects the government’s legislative history argument. Again, the opinion does not hold that legislative history is irrelevant in light of the text. Rather, the majority concludes that the legislative history cited by the government results in a reading of the statute that accords with the court’s textual interpretation. “By the Government’s own account, Congress enacted the stop-time rule to prevent noncitizens from exploiting administrative delays to ‘buy time’ during which they accumulate periods of continuous presence… Requiring the Government to furnish time-and-place information in a notice to appear, however, is entirely consistent with that objective.”
Kennedy joins the majority opinion in full and his concurrence exists solely to expand upon the Chevron issue. Kennedy goes further than the majority, chiding some courts of appeals for engaging “in cursory analysis of the questions whether, applying the ordinary tools of statutory construction, Congress’ intent could be discerned, … and whether the BIA’s interpretation was reasonable.”
Alito’s lone dissent takes a different view of Chevron. Alito thinks that the two sides advance plausible interpretations of the statute in their “quasi-metaphysical disagreement about the meaning of the concept of a notice to appear.” Finding the two readings plausible, he concludes that Chevron requires deference to the government’s interpretation. Indeed, he asserts that deference to the government’s interpretation “‘is especially appropriate in the immigration context’ because of the potential foreign-policy implications.” Given the lack of any real foreign-policy consequences in the application of the stop-time rule, this maxim seems inapposite, but the puzzling use of the maxim in a case involving entirely domestic matters is not at all unusual in the immigration caselaw.
Reviewing the government’s arguments concerning the text (particularly the purported ambiguity of the word “under”), the surrounding statutory context, the legislative history and the statutory purpose, Alito finds that “there is no doubt that the Government’s interpretation of the stop-time rule is … permissible under Chevron.” And, after taking issue with the majority’s specific arguments as to why the statute clearly and unambiguously carries a date requirement, he concludes that Chevron requires deference to the government’s equally plausible interpretation. He notes that some members of the court have been critical of Chevron, but “unless the Court has overruled Chevron in a secret decision that has somehow escaped my attention, it remains good law.”