Opinion analysis: Court rejects agency interpretation of immigration statute, giving immigrant a chance at lawful residence

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.