Earlier this summer, the Supreme Court issued a decision that will set monumental precedent for the future of immigration reform, both during this current political administration and beyond. The Supreme Court’s decision regarding the case of Pereira v. Sessions will have far-reaching consequences for the majority of migrants who have received notice to appear documents.
Pereira v. Sessions invokes the argument that a migrant who is issued a notice to appear to a removal hearing without factual information critical to preparing legal representation, notably a date, time, location, and notation of the charge being issued, does not meet the definition of a charging document and cannot invoke the stop time rule. The most important take-away lesson from the success of Mr. Pereira’s case involve the determination that a faulty notice to appear document cannot be used to count against time accrued for the path to obtaining a green card and permanent residency status. This consequence marks an important victory for proponents of immigration reform, paving the way for legal methods for migrants to remain in the United States without the burden of unjust legal obstacles and the interruption of due process.
Potential for Removal Cancellations and Reversals
Potentially the clearest potential effect of the decision in Pereira v. Sessions is the fact that individuals who received notices to appear for a removal proceeding but a removal decision has not yet been rendered, will almost certainly be cancelled and removal proceedings will not take place. Pereira v. Sessions rendered a notice to appear document without a specified date and time for the court appearance as an illegitimate charging document. Since it has become common practice to issue notice to appear documents without crucial information, it is nearly impossible to ascertain what percentage of notice to appear documents are now considered illegitimate. Legal experts state that the vast majority, as in nearly 100 percent, of cases lack this critical information and will likely lead to cancellations of removal proceedings that have not yet been finalized.
Similar to the situation outlined for cancelling removal proceedings, the outcome of the Supreme Court’s decisions carries weight in potentially reversing removal decisions for individuals who received notice to appear documents without the specified date and time. This inherently invokes past cases with decisions already rendered, so it is uncertain exactly how far back in time the timeline will extend to cases that have issued a removal decision. However, the Pereira’s legal counsel argued that the ambiguity of a notice to appear without a specified timeframe to appear contributes to an inability to prepare sufficient legal advice and representation both in advance of and during the legal proceedings, bringing the concept that due process was not adequately provided in such cases.
A Putative Notice to Appear is Not a Charging Document and Can Be a Defective Document
An important consideration the Supreme Court justices considered in the case was definitional issues considering whether a faulty document lacking material and factual information concerning how a charged individual proceeds with abiding the legal request to appear at a forthcoming hearing. The justices determined that a faulty notice to appear, that is, one lacking the factual information needed to appear at a specified date and location, is not a definitionally sound document. This will prompt an procedural overhaul for the Department of Homeland Security and immigration courts to establish a system for determining, scheduling, and maintaining court appearance schedules for defendants, judges, and legal representatives. Considering the fact that Department of Homeland Security once had such a procedure in place but has since abandoned it due to presumable logistical challenges, and the fact that immigration judges are notoriously in high demand and are already over capacity for hearing cases, it will be an arduous task that requires a systemic overhaul. This case has allowed procedural shortcomings by government officials to be brought into a critical light that will require action in order to restore a fair judicial process for immigrants.
Pereira v. Sessions exemplifies a case that seemingly represents a very specific and singular case of circumstances, but Pereira’s case will mark a milestone in immigration reform. The potential for removal proceedings to be reversed or the stoop time rule to remain in effect long enough to obtain residency is a very real possibility for thousands of migrants. Additionally, this case will prove monumental in setting precedent for immigration reform going forward, which proves to be a string victory during this hostile administration. From a legal perspective, Pereira v. Sessions proves a strong contender for influencing precedent and interpretation for forthcoming cases that make it to appeals courts.