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Interpreting Pereira v. Sessions… BIA vs. The Courts

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 The Supreme Court’s decision in Pereira v. Sessions has been a contentious topic for immigration attorneys and courts since the ruling came down last year. The Court ruled that a Notice to Appear (NTA), the document that must be served by DHS on a noncitizen in order to commence removal proceedings, is not an NTA if it lacks the time and date of the initial hearing. Hence, an NTA that is issued without a time and date does not provoke the “stop-time” rule that would prevent a noncitizen from accruing the required 10 years of continuous presence in the U.S. When this decision was released, immigration attorneys were eager to reopen cases where noncitizens had been ordered removed following a deficient NTA – Pereira was almost like a second chance to try the case over. The BIA, however, saw it differently.

In an attempt to mitigate the ripple effects from the Pereira decision, the BIA has interpreted the decision in Pereira very narrowly. For instance, in Matter of Silvestre Mendoza-Hernandez, the BIA ruled that a deficient NTA per Pereira can be cured by the subsequent service of a notice of hearing (NOH) that specifies the time and place of the hearing. This NOH then triggers the stop-time rule, ending the noncitizen’s period of continuous residence. Further, the BIA has also ruled that Pereira was only meant to narrowly apply to the issue of the “stop-time” rule, and not to the issue of the court’s jurisdiction. Thus, when a respondent is personally served a deficient NTA, later sent an NOH, and still does not attend the removal hearing, the BIA may affirm the Immigration Judge’s (IJ) denial of a motion to reopen. These decisions cite the statute, 8 CFR 1003.14, which states that “jurisdiction vests, and proceedings before an immigration judge commence, when a charging document is filed with the Immigration Court by the Service”. The BIA notes that the regulations define a charging document to include an NTA, and so service of an NTA authorizes the court’s jurisdiction. The BIA rulings seem to be in direct contradiction with the Supreme Court’s decision.

The Ninth Circuit Court followed the Pereira decision more closely in Lopez v. Barr, finding that an NTA that is defective under Pereira cannot be cured by a subsequent NOH and therefore does not commence the stop-time rule. The Ninth Circuit Court acknowledged the BIA’s different interpretation, but declined to follow this same conclusion as it recognized that courts are not obliged to defer to agency interpretations of Supreme Court opinions.

These recent decisions indicate that Immigration courts and the BIA are narrowly applying the Pereira decision and strictly scrutinizing the facts on a case-by-case basis. Circuit courts, however, may choose to follow Pereira more closely, as the Ninth Circuit has done. In the future, we are likely to see this issue continue to be appealed to the circuit courts, and maybe even again before the Supreme Court if a circuit split arises.

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