Chaos in the Immigration Courts. Pereira v. Sessions.
On June 28, 2018 the US Supreme Court decided an immigration case named Pereira v. Sessions.[1] It is a procedural case that has not gotten much press, but it has caused complete chaos in the US immigration court system.
Here's why, and how it could affect you.
Proceedings to "remove" (deport) a foreign citizen from the United States are initiated by the filing of a so-called "Notice to Appear," also known as an NTA. Think of it as a complaint in criminal or civil court. It sets forth certain facts alleged against the foreign citizen respondent, and a "charge" showing why those facts mean that the foreign citizen should be deported.
The requirements of an NTA are set forth explicitly in the Immigration and Nationality Act (the INA), and one of the requirements is that the NTA literally give notice of the date and time when the respondent is supposed to make his or her initial appearance in immigration court.
When I first started practicing immigration law in 2002, when one saw an NTA it always had a specific date, time and place where the respondent was required to appear to answer the NTA. However, for at least the last five years if not longer, the Government has, to put it plainly, gotten lazy. Various agencies of the Department of Homeland Security have the power to issue NTA’s. They include Customs and Border Protection (CBP); Immigration and Customs Enforcement (ICE); and United States Citizenship and Immigration Services (USCIS). They have primary responsibility to insert the date and time in the Notice to Appear. The immigration court system itself, which is part of the US Department of Justice and is technically called the "Executive Office for Immigration Review" also has a responsibility only to accept NTA’s that comply with the law.
Having an NTA comply with legal requirements of the INA means that the DHS agencies have to coordinate with EOIR so that a real date and time is inserted in the NTA when it is filed with the Court. However, instead of doing this necessary coordination, both the DHS agencies and EOIR decided that it would be "okay" to substitute the language "to be set" or "TBD" (to be determined) instead. Their thinking was that after the NTA was “in the system” EOIR would give the foreign citizen notice of the initial hearing at a later time. This practice was even codified in the regulations.
In Pereira, the US Supreme Court ruled that this was "not okay." Their ruling was that none of the immigration agencies could unilaterally change the statutory language that required a specific date, time and place for the foreign citizen to first appear and answer an NTA.
Otherwise, there was no way that an NTA could be considered a real "notice to appear."
Pereira was decided in the context of a case where the foreign citizen wasn’t documented but had been in the United States for 10 years, and was able to request “cancellation of removal” and a green card in court because of "extraordinary and exceptionally unusual hardship" to an immediate relative, who is a permanent resident or US citizen. See my prior post about the Guatemalan citizen who obtained this relief recently in Elizabeth immigration Court. But, the way the law is written the ability to request cancellation of removal is cut off if an NTA is filed in immigration court before the individual has been here 10 years. Pereira, considered narrowly, held that the respondent in such a case case could make a 10-year claim because the NTA was invalid and did not properly commence proceedings.
The problem with Pereira for the immigration bureaucracies is that the logic of the decision applies to all cases where proceedings were improperly commenced. This is not a small problem. Hundreds of thousands of cases could be thrown out of court.
The government made this very argument before the Supreme Court, citing all the regulations and lower court precedents saying that "to be set," and "TBD" were okay, and the Supreme Court still rejected these arguments.
I have had a number of NTAs dismissed because of Pereira (although the government can always refile them with the proper date and time for the initial hearing) and my results together with others filed by immigration lawyers caused both panic and chaos in immigration court system and at DHS, because of how long they have not been following the law and issuing notices to appear.
The bureaucratic reaction to the Supreme Court’s reasoning in Pereira has been swift, and negative. In a decision by the Board of Immigration Appeals (the BIA) on August 31, 2018, Matter of BERMUDEZ-COTA, 27 I&N Dec. 441 (BIA 2018)[2] the Board ruled that these dismissals were incorrect, by trying to argue that the reasoning of Pereira does not apply outside of the 10-year setting. From my perspective the BIA is simply rehashing the very arguments that they lost before the US Supreme Court when Pereira was decided.
I expect litigation to go on for a considerable period of time in the federal circuit courts and ultimately back in the Supreme Court, before this question is finally resolved. In the meantime, anyone with an NTA that is defective because it does not set the date and time of the initial hearing should consult with an immigration attorney immediately to determine whether it helps their individual case.
[1] (https://www.supremecourt.gov/opinions/17pdf/17-459_1o13.pdf)
[2] https://www.justice.gov/eoir/page/file/1091146/download
Brian D. O'Neill Attorney at Law, LLC
Immigration, Employment and Business Law
55 Madison Ave., Ste 400
Morristown, NJ 07960
