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Pereira v. Sessions

Who is Wescley Pereira?

Learn more about the pereira v sessions Supreme Court case and what it might mean to immigrants across the country.

Wescley Pereira came to the U.S. from Brazil on a six-month tourist visa in 2000, and never left. He eventually made a home for himself on Martha’s Vineyard, where he works as a handyman and lives with his wife and two U.S. citizen children.

Pereira is the plaintiff in the U.S. Supreme Court case Pereira v. Sessions, a case which, for thousands of immigrants, could mean the difference between staying in the country and being deported.

The Issue at Hand

Mr. Pereira's case seems complex and uninteresting at first glance. The plaintiff says that the time spent in the U.S. in order to qualify for “Cancellation of Removal” immigration relief should not stop once a generic notice to appear is received from federal immigration authorities.

What does that mean, exactly?

Sarah Sherman-Stokes is an immigration attorney and associate director of Boston University's Immigrants' Rights and Human Trafficking Program, explained the background to The Washington Examiner. "There’s something called 10-year cancellation of removal [in deportation cases] that’s only eligible to folks who have been here for 10 years or more without having their time stopped," Sherman-Stokes explained.

Cancellation of Removal gives immigrants who have spent ten years or more in the country continuously the right to appeal deportation decisions (and often avoid deportation), provided they can prove they are of good moral character and meet a number of other stringent considerations.

There is a federal practice, however, that prevents immigrants from reaching this ten-year count, informally known as a “time-stop.” The US government simply sends the immigrant in question a notice saying that he or she has an impending immigration court hearing, without citing a date or time for said hearing. From the moment the notice is received, the immigrant’s "continuous residence clock" is considered stopped - i.e. he or she doesn’t accrue anymore time towards his or her continuous residence count for Cancellation of Removal, even if their immigration hearing ends up being years later.

Lawyers for the government contend the purpose of the stop-time rule is to prevent an immigrant who can be deported from accruing “continuous physical-presence time while his removal proceeding is ongoing.”

Pereira's lawyers argue that a notice with no time or date for a hearing isn't enough to stop the clock.

The Pereira v. Sessions Supreme Court case is, in effect, questioning what information needs to be provided for the "time-stop" to be activated - and whether the current federal stop-clock practice is in fact legal.

Pereira's story

In May 2006, federal authorities served Pereira with a notice to appear in immigration court, stating that he was subject to deportation proceedings for overstaying his visa. The notice instructed him to appear “on a date to be set at a time to be set.”

More than a year later, the government got around to scheduling Pereira's removal hearing. Only, instead of sending the notice to his P.O. box where Pereira receives mail, they sent the notice to his street address. It was returned to sender.

The immigration hearing was held, although Pereira had no knowledge of it. His deportation order was given, but Pereira remained in the country, “having never received any hearing notice, and having no knowledge of the in absentia removal order,” according to a brief his lawyers filed with the court.

In March 2013, Pereira was pulled over for a traffic violation - and was detained by federal immigration authorities. He had been in the country for thirteen consecutive years.

Pereira applied for cancellation of removal, since according to his lawyers, he had crossed the ten year mark for continuous presence. His immigration judge denied the request, citing the notice to appear served to Pereira in 2006, which "time-stopped" his continuous presence count at only six years.

The case was appealed through the Board of Immigration Appeals and the US Court of Appeals for the First Circuit. Although The federal appeals court deferred to the original decision, they did state that the statute at issue in the case is ambiguous - in fact, appellate courts across the country have disagreed as to what information needs to be included in a notice to appear for the government to be able to stop the continuous presence time count.

Sherman-Stokes says these differing opinions are what make Pereira's case the type the Supreme Court would take on.

"Both sides agree that this issue will remain entrenched," she said. "Unless the Supreme Court addresses this, the circuit split is likely to remain."

Opening oral arguments were heard by Justices early this week - many of whom voiced that they found it "odd" that a notice to appear would not include a date and time. They also worried that if the government were required to list a date and time, they would simply put one at random that they had no intention of honoring. Chief Justice John Roberts said he wasn’t sure what doing that “would accomplish."

A decision in the case is expected by the end of June, and the outcome may profoundly affect the future of deportation hearings.

If you have any questions about deportation hearings for yourself, family members or friends, or would like to know how this case might affect your immigration status, don't hesitate to contact us for help.