Pereira v. Sessions, No. 17-459, June 21, 2018
MAJORITY OPINION: Justice Sotomayor for herself and seven others.
CONCURRING OPINION: Justice Kennedy
DISSENTING OPINION: Justice Alito
KEY QUOTE FROM MAJORITY:
Unable to find sure footing in the statutory text, the Government and the dissent pivot away from the plain language and raise a number of practical concerns. These practical considerations are meritless and do not justify departing from the statute’s clear text. See Burrage v.United States, 571 U. S. 204, 218 (2014).
The Government, for its part, argues that the “adminis- trative realities of removal proceedings” render it difficult to guarantee each noncitizen a specific time, date, and place for his removal proceedings. See Brief for Respond- ent 48. That contention rests on the misguided premise that the time-and-place information specified in the notice to appear must be etched in stone. That is incorrect. As noted above, §1229(a)(2) expressly vests the Government with power to change the time or place of a noncitizen’s removal proceedings so long as it provides “written notice . . . specifying . . . the new time or place of the proceedings” and the consequences of failing to appear. See §1229(a)(2); Tr. of Oral Arg. 16–19. Nothing in our decision today inhibits the Government’s ability to exercise that statu- tory authority after it has served a notice to appear specify- ing the time and place of the removal proceedings.
The dissent raises a similar practical concern, which is similarly misplaced. The dissent worries that requiring
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Opinion of the Court
the Government to specify the time and place of removal proceedings, while allowing the Government to change that information, might encourage DHS to provide “arbi- trary dates and times that are likely to confuse and con- found all who receive them.” Post, at 8. The dissent’s argument wrongly assumes that the Government is ut- terly incapable of specifying an accurate date and time on a notice to appear and will instead engage in “arbitrary” behavior. See ibid. The Court does not embrace those unsupported assumptions. As the Government concedes, “a scheduling system previously enabled DHS and the immigration court to coordinate in setting hearing dates in some cases.” Brief for Respondent 50, n. 15; Brief for National Immigrant Justice Center as Amicus Curiae 30– 31. Given today’s advanced software capabilities, it is hard to imagine why DHS and immigration courts could not again work together to schedule hearings before send- ing notices to appear.
Finally, the dissent’s related contention that including a changeable date would “mislead” and “prejudice” nonciti- zens is unfounded. Post, at 8. As already explained, if the Government changes the date of the removal proceedings, it must provide written notice to the noncitizen, §1229(a)(2). This notice requirement mitigates any poten- tial confusion that may arise from altering the hearing date. In reality, it is the dissent’s interpretation of the statute that would “confuse and confound” noncitizens,post, at 8, by authorizing the Government to serve notices that lack any information about the time and place of the removal proceedings.
E
In a last ditch effort to salvage its atextual interpreta- tion, the Government invokes the alleged purpose and legislative history of the stop-time rule. Brief for Re- spondent 37–40. Even for those who consider statutory
20 PEREIRA v. SESSIONS Opinion of the Court
purpose and legislative history, however, neither supports the Government’s atextual position that Congress intended the stop-time rule to apply when a noncitizen has been deprived notice of the time and place of his removal pro- ceedings. By the Government’s own account, Congress enacted the stop-time rule to prevent noncitizens from exploiting administrative delays to “buy time” during which they accumulate periods of continuous presence.Id., at 37–38 (citing H. R. Rep. No. 104–469, pt. 1, p. 122 (1996)). Requiring the Government to furnish time-and- place information in a notice to appear, however, is en- tirely consistent with that objective because, once a proper notice to appear is served, the stop-time rule is triggered, and a noncitizen would be unable to manipulate or delay removal proceedings to “buy time.” At the end of the day, given the clarity of the plain language, we “apply the statute as it is written.” Burrage, 571 U. S., at 218.
IV
For the foregoing reasons, the judgment of the Court of Appeals for the First Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
KEY QUOTE FROM JUSTICE KENNEDY’S CONCURRING OPINION:
In according Chevron deference to the BIA’s interpreta- tion, some Courts of Appeals engaged in cursory analysis of the questions whether, applying the ordinary tools of statutory construction, Congress’ intent could be dis- cerned, 467 U. S., at 843, n. 9, and whether the BIA’s interpretation was reasonable, id., at 845. In Urbina v.Holder, for example, the court stated, without any further elaboration, that “we agree with the BIA that the relevant statutory provision is ambiguous.” 745 F. 3d, at 740. It then deemed reasonable the BIA’s interpretation of the statute, “for the reasons the BIA gave in that case.” Ibid. This analysis suggests an abdication of the Judiciary’s proper role in interpreting federal statutes.
The type of reflexive deference exhibited in some of these cases is troubling. And when deference is applied to other questions of statutory interpretation, such as an agency’s interpretation of the statutory provisions that concern the scope of its own authority, it is more troubling still. See Arlington v. FCC, 569 U. S. 290, 327 (2013) (ROBERTS, C. J., dissenting) (“We do not leave it to the agency to decide when it is in charge”). Given the con- cerns raised by some Members of this Court, see, e.g., id.,at 312–328; Michigan v. EPA, 576 U. S. ___, ___ (2015) (THOMAS, J., concurring); Gutierrez-Brizuela v. Lynch, 834
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KENNEDY, J., concurring
F. 3d 1142, 1149–1158 (CA10 2016) (Gorsuch, J., concur- ring), it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevronand how courts have implemented that decision. The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary. See, e.g.,Arlington, supra, at 312–316 (ROBERTS, C. J., dissenting).
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I filed an Amicus Brief, with the assistance of Eric Citron, Goldstein & Russell, of in behalf of Mr. Pereira.
PEREIRAVSESSIIONS,SCT,AMICUS17-459 tsac Former BIA Chairman & Immigration Judge Schmidt
Why is this so big:
- In invalidates hundreds of thousands of defective Notices to Appear, thus potentially requiring massive “restarts” in an already out of control system.
- Even with a more or less hand-picked Supreme Court, immigration reactionaries continue to lose case after case. So, it isn’t “liberal judges.” It’s inane, biased policies and lousy lawyering at the DOJ and DHS which goes back through the Obama and Bush II Administrations. It’s just reached its lowest conceivable level under Sessions. But, I’ll admit that every time I think Sessions can’t sink any lower on the legal and moral scale, he surprises me.
- It makes tens of thousands of additional individuals who have now been here for 10 or more years eligible to apply for “Non-LPR Cancellation of Removal” because the “stop time rule” was not properly invoked by the service of the defective NTA in their cases. This could pour tens of thousands of Motions to Reopen and/or Reconsider into an already overwhelmed system.
- Virtually every individual from El Salvador, Haiti, and Honduras whose TPS is going to be (bone-headedly) terminated by the Trumpsters will now be able to demand full hearings on Cancellation of Removal in U.S. Immigration Court. Thus, they aren’t going anywhere any time soon.
- It illustrates the problems of giving improper “Chevron Deference” to a BIA that no longer functions as an expert tribunal and does not exercise independent judgement. Ever since the “Ashcroft Purge” the BIA has been an “inbred body” specifically structured and staffed to be a “shill” for DHS and the Administration’s enforcement policies. And, under Sessions, the BIA has been completely co-opted by his unethical and highly improper interference in what little was left of its independent decision-making function. “Justice” in today’s Immigration Courts is a total sham!
- Chevron, as I have stated many times to my law school class, is a cowardly exercise of “judicial task avoidance” by the Supremes. Congress should eliminate it if the Supremes don’t. Article III Judges should be required to do their Constitutional duties, earn their pay, and decide legal issues de novo, even when that might be controversial, unpopular, or require more critical, analytical thinking than they care to do.
- The Pereira debacle is entirely the fault of a totally screwed up and incompetent Executive Immigration function stretching back for nearly two decades. Fixing this problem properly should have been a “no brainer.” The “technology” (which probably could have been developed by a middle schooler sitting in her basement) was there more than a decade ago. But “haste makes waste” corner cutting combined with the assurance that the emasculated and enfeebled BIA would intentionally misread the plain meaning of the statute to screw the respondent and help the DHS produced a totally avoidable administrative nightmare.
- “You ain’t seen nothin’ yet.” With White Nationalist xenophobe Sessions demanding that Immigration Judges deny, deny, deny, without hearings if necessary, to achieve their quota of removals without the inconvenience of Due Process and impartiality, cases are going to come rocketing back from the Courts of Appeals by the truckload. The whole system is going to collapse. And don’t anyone let the corrupt and biased Sessions get away with fobbing the blame off on others, as he and the rest of the Trump Regime are wont to do.
- Sessions, Trump, Miller, Nielsen, Kelly, Homan and the rest of the scofflaw, White Nationalist, anti-Constitutional crowd might think that the Constitution doesn’t mean what it says. But, foreign nationals in the United States are entitled to fairness and due process. No matter how many corners the Trumpsters cut and how much bias they institutionalize into the already compromised Immigration Courts, they aren’t going to be able to eliminate Due Process.
- We need a legitimate, independent, impartial, unbiased, Sessions-free, Due Process focused U.S. Immigration Court. Until that happens, the entire immigration justice system will continue to spiral downward under the immorality and toxic incompetence of Sessions and his cronies.
PWS
06-22-18
