June 2018 saw an uptick in stories of the emotional toll experienced by thousands of families separated at border detention centers. Media outlets capitalized on stories of young children being separated from their families, forced to deal with hardships without any familiarity or comfort, and with the added burden of an uncertain future. This unprecedented coverage will undoubtedly mark a significant turning point in the history of immigration reform, at least in the area of galvanizing public support for widespread federal reform.
On June 21, 2018, the Supreme Court issued a favorable decision for the migrant community in a case that is expected to favorably impact the majority of removal cases currently in docket for review, as well as to potentially act as the impetus to reopen and reverse past removal cases. A Supreme Court decision in immigration reform is monumental for establishing change in this current political climate, but outside of the legal community, it seems the case of Pereira v. Sessions has not been widely discussed.
This case has potential implications for the uncertain status of countless individuals on the path to obtaining green cards or facing deportation in the United States. In order to fully understand the implications, we’ll break down the context and timeline of this case in order to fully examine the Supreme Court’s findings and the potential outcomes —both for the legal community and for its clientele.
Wescley Fonseca Pereira is a Brazilian national who arrived in the United States on a temporary visitor basis in 2000. His visa was set to expire in December 2000, but Pereira established a life in the United States and remind in the country without incident until an incident involving a DUI arrest triggered an investigation into his legal status in 2006. Pereira was issued a notice to appear document that lacked an exact date and time that he was expected to appear with his legal representation. As a result of this ambiguous court summons, Pereira failed to appear to the hearing and it was decided in absentia that Pereira would be removed from the country. This marks a fundamental departure of the interpretation of due process guaranteed in the constitutional amendments of the United States. Additionally, the lack of a date and time issued on the notice to appear constitute a logical impediment to securing appropriate legal counsel with defense argument.
Pereira remained in the United States virtually without incident after his removal hearing in 2007. In 2013, with proper legal representation, Pereira petitioned to cancel his order for removal, arguing that the faulty notice to appear issued in 2006 interrupted his 10 year residency that constitutes a legitimate path for permanent residency. Pereira’s defense invoked then argument that this notice to appear document constituted an undue and faulty interpretation of the stop-time rule during his ten year path to residency since a notice to appear without critical information for appearing in court and securing proper counsel is not definitionally sound as a charging document.
This case made its way through the appeal court circuit, immigration court, and ultimately to the Supreme Court to determine the definitional issue raised by Pereira. The central issue of this case remains whether a notice to appear can serve as a legitimate charging document if a specified time and date are not included in the notice, with Pereira’s defense arguing that the burden of supplying this information falls on the government entity, such as the Department of Homeland Security, and not to the court system, the individual being summoned, or the client’s legal representation.
Supreme Court Decision
Contrary to the findings of the lower immigration courts, the Supreme Court sided in an 8-1 decision with Pereira that a notice to appear without a specified date and time does not constitute a legitimate charging document.
The Supreme Court’s findings counter that of the lower immigration courts due to using a legal precedent that states if an interpretation of a document produces ambiguity, then federal agencies may not enforce a single interpretation if multiple interpretations exist. In this case, because a notice to appear without clarifying information on how to prepare for and when to actually appear in court, the government agency is issuing a faulty document to the deposed.
Expected Outcomes — Legal and Otherwise
The interpretation of Pereira v. Sessions carries significant weight in determining the the path of immigration reform beyond just the turbulent times of the current political administration; Pereira will be an enduring legal interpretation and will likely serve as precedent for interpretation in future cases.
Specific outcomes are impossible to predict at this point, especially in deciding the process for how past cases will be reopened and decided. However, it is evident that the Supreme Court’s decision will have a favorable outcome for the majority of the immigrants with cases currently in docket since most notices to appear contain the same verbiage of “a date to be set in the future” at “a time to be set in the future” as appeared on Pereira’s notice to appear.
Undoubtedly, this interpretation will stall the already painstakingly slow process of removal for countless migrants, which will allow legal representatives to prepare more complete and effective defense arguments. Additionally, the Supreme Court’s interpretation of what constitutes a functional notice to appear will release the stop-time rule on countless cases that mirror Pereira’s path in establishing permanent residency. The results of these two specific outcomes will undoubtedly lead to a reduced rate of deportations for individuals who establish residency legally.
The impact of Pereira v. Sessions will be a monumental development in the scope of immigration reform, with specific success stories still to come, but it is evident that the new legal interpretation of the definition of a charging document for a removal case will undoubtedly allow legal representatives to properly represent clients without ambiguous, unethical, and arbitrary barriers of access to court appearances.