SUPREMES TAKE ON “STOP TIME” ISSUE FOR CANCELLATION OF REMOVAL – TO RESOLVE “CIRCUIT SPLIT” — COULD AFFECT MANY THOUSANDS OF REMOVAL CASES – PEREIRA V. SESSIONS!

Here’s what SCOTUS Blog has to say about the issue:

“Issue: Whether, to trigger the stop-time rule by serving a “notice to appear,” the government must “specify” the items listed in the definition of a “notice to appear,” including “[t]he time and place at which the proceedings will be held.”

Here’s a link to the SCOTUS Blog material on Cir:

http://www.scotusblog.com/case-files/cases/pereira-v-sessions/

Here’s a link to the First Circuit’s decision in Pereira v. Sessions, written by Judge Lipez which upheld the BIA’s ruling under so-called “Chevron deference:”

http://media.ca1.uscourts.gov/pdf.opinions/16-1033P-01A.pdf

And, here’s a “key quote” from Judge Lipez’s decision in Pereira that explains the issue a little more detail:

“The Immigration and Nationality Act (“INA”) gives the Attorney General discretion to cancel the removal of a non-permanent resident alien if the alien meets certain criteria, including ten years of continuous physical presence in the United States. 8 U.S.C. § 1229b(b)(1). Under the “stop-time” rule, the alien’s period of continuous physical presence ends “when the alien is served a notice to appear under section 1229(a)” of the INA. Id. § 1229b(d)(1). In this case, we must decide whether a notice to appear that does not contain the date and time of the alien’s initial hearing is nonetheless effective to end the alien’s period of continuous physical presence. The Board of Immigration Appeals (“BIA”) answered this question affirmatively in Matter of Camarillo, 25 I. & N. Dec. 644 (B.I.A. 2011). The BIA applied that rule in this case.

Joining the majority of circuit courts to address this issue, we conclude that the BIA’s decision in Camarillo is entitled to Chevron deference. We deny the petition for review.”

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So, with the 1st Circuit joining the 2nd, 4th, 6th, 7th, and 9th Circuits in upholding Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011); only the 3rd Circuit rejecting the BIA’s interpretation (Orozco- Velasquez v. Att’y Gen. United States, 817 F.3d 78, 81-82 (3d Cir. 2016)); and what is generally perceived as a “conservative leaning” Supreme Court, looks like a “slam dunk” for the Government, right? Not so fast!

On a question of statutory interpretation like this, I could definitely see some of the more conservative “strict constructionist” Justices teaming up with the “liberals” to reject the BIA’s interpretation by invoking the “plain meaning” rule of statutory construction to overcome “Chevron deference.” Indeed, quite interestingly, as I have noted in prior blogs, Justice Neil Gorsuch was an outspoken critic of Chevron while on the Tenth Circuit. Read his opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016) if you have any doubts! Here’s a link to that opinion: https://www.ca10.uscourts.gov/opinions/14/14-9585.pdf

So, I wouldn’t assume at this point that Justice Gorsuch will be a “shill” or “pushover” for the Administration on all immigration issues, even if Trump thinks that’s the type of “loyalty” all his judicial appointments owe him. Actually, the oath of office that Federal Judges take requires them to uphold the Constitution of the United States, not the views and positions of President Trump, Attorney General Jeff Sessions, DHS Secretary Kristjen Nielsen, or anybody else of any importance whatsoever. That’s what real “judicial independence” (as opposed to the “captive” Immigration Judiciary) is all about!

And, you might ask what’s the “big deal” about this case? After all, even if the Supremes agree with the petitioner and the Third Circuit that the notice was defective, the BIA and DHS could easily cure the “problem” simply by specifying a “time, place, and date” for the Immigration Court hearing on the original Notice to Appear. Indeed, when I joined the Arlington Immigration Court in 2003 such a system, called “Interactive Scheduling” was in effect. But, like much else at EOIR it appears to have run into problems and been largely abandoned as the dockets mushroomed out of control. Many (not all) things about the administration of the Immigration Courts actually moved backward during my 13 year tenure in Arlington.

But, if the original Notice to Appear were held to be ineffective, then it would not serve to “Stop Time” for the 10 year period of “continuous physical presence” required to apply for the relief of “Cancellation of Removal.” This, in turn, would make thousands of individuals now in Immigration Court proceedings, perhaps tens of thousands, eligible to apply for Cancellation. And, it likely would require the reopening of thousands of already completed cases where the respondent was denied Cancellation of Removal based solely on the “Stop Time” rule. So, that’s why it’s worth the Supremes’ time to resolve this conflict among the lower Federal Courts.

PWS

01-13-18

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