Pereira v. Sessions

STATUTORY INTERPRETATION

Pereira argues that 8 U.S.C. § 1229b(d)(1)’s “stop-time rule,” which states that an alien’s period of continuous physical presence is interrupted after the government serves the alien with a notice to appear, requires that a “notice to appear” contain all of the information listed in § 1229(a)’s definition in order to be valid. Pereira contends that the statutory text requires that a notice to appear contain, among other things, the location and time of the proceedings. Only a written notice containing all of this information invokes the stop-time rule. Further, Pereira maintains that the statutory text is not ambiguous. Rather, Pereira asserts that Congress explicitly stated that the stop-time rule can only be invoked by serving a document containing the information listed in § 1229(a) and that the word “under,” as used in this context, does not create ambiguity. Pereira further notes that other subsections of the statute use the phrase “notice to appear” in reference to a notice that complies with § 1229(a)’s definition of the phrase.

Additionally, Pereira emphasizes that other methods of statutory interpretation bolster his interpretation of the statute’s text. First, Pereira maintains that the statute’s structure demonstrates that a valid notice to appear must meet the requirements of § 1229(a). Pereira asserts that the statutory definition does not indicate that any of the requirements are more or less important than the others and posits that there is no basis for distinguishing between them. Pereira argues that it is irrelevant that the stop-time rule does not refer to the specific paragraph containing the definition of notice to appear because identifying the general subsection—a method Congress routinely utilizes—clearly indicates how a notice to appear is defined. Pereira also contends that § 1229(a)(2) supports the proposition that the time and location of a hearing must be included in a valid notice to appear because providing for the ability to change the time or place of the hearing necessarily envisions that a time and location have already been set. Moreover, Pereira maintains that the limited nature of the relief provided by the stop-time rule, as well as the rigorous eligibility requirements for that relief, provide further support for interpreting the statutory text as requiring that a notice to appear comply fully with § 1229(a)(1).

Next, Pereira asserts that the legislative history supports interpreting the stop-time rule as requiring all information listed in § 1229(a) be provided in a notice to appear. Pereira argues that Congress was aware of the requirements for a notice to appear to invoke the stop-time rule because Congress enacted both provisions in the same legislation. Given this, Pereira contends, Congress intended to change existing notification requirements to include the time and place of the proceedings in the notice to appear. Additionally, Pereira maintains that legislative history indicating that Congress enacted the stop-time rule to prevent immigrants from prolonging proceedings to qualify for residency is consistent with the statutory text and the proposition that a notice to appear must comply with § 1229(a). Finally, Pereira adds that the statutory construction principle requiring that statutory ambiguities be resolved in favor of immigrants applies here and should govern in the event that any ambiguity exists.

Sessions counters that interpreting § 1229b(d)(1)’s stop-time rule as applying when the government serves a notice to appear, regardless of whether the date and time of the proceeding are included, is supported by the statute’s text, context, and structure. Sessions argues that § 1229b(d)(1)’s reference to a notice to appear does not indicate that the date and time of the proceeding—which have not been determined at the time of service—must be included in order for the stop-time rule to be invoked. Rather, Sessions contends that the reference simply indicates the type of document required to be served on an immigrant in order for the stop-time rule to be invoked and does not necessitate that the document must fully comply with the requirements of § 1229(a). Sessions also maintains that the statute’s use of the word “under” demonstrates that the service of a valid notice to appear are controlled by § 1229(a), not that every requirement of § 1229(a) must be met in order for the stop-time rule to be invoked.

Further, Sessions asserts that three characteristics of § 1229b(d)(1) demonstrate that a notice to appear does not require all of the information listed in § 1229(a). First, Sessions posits that Congress used different language in another section of the statute where it sought to ensure that all of the requirements of § 1229(a) be met. According to Sessions, the use of different language shows that a notice to appear under § 1229b(d)(1) is not required to contain all of the information required by § 1229(a) in order to be valid. Second, Sessions contends that § 1229b(d)(1)’s reference to § 1229(a) demonstrates that Congress did not intend to require a notice to appear to fully comply with § 1229(a)(1)’s requirements. Sessions maintains that if Congress wanted a notice to appear to fully comply with § 1229(a)(1)’s requirements, Congress would have explicitly referenced that specific subsection, as it did in other parts of the statute. Third, Sessions argues that a notice to appear does not need to contain the time and location of the proceeding because § 1229b(d)(1)’s reference to § 1229(a) includes subsection (a)(2), which allows for the date or time of the proceeding to be changed. Sessions states that it should not be assumed that Congress would require a notice to appear to set a date and location that could later be changed.

Next, Sessions contends that the legislative history and purpose of the stop-time rule support the interpretation that notices to appear under § 1229b(d)(1) need not fully comply with § 1229(a)(1). Sessions contends that Congress amended the Illegal Immigration Reform and Immigration Responsibility Act (“IIRAIRA”) because legislators were concerned that immigrants were taking advantage of loopholes in protections from deportation. Sessions claims that Congress created the stop-time rule to prevent the abuse of one such loophole: the lack of a stopping mechanism on the tolling of an immigrant’s “continuous-physical-presence time.” Sessions maintains that Pereira’s interpretation of the statute defeats the purpose behind the stop-time rule’s enactment by allowing immigrants who would otherwise be ineligible for relief to take advantage of relief based on an unrelated technicality—the failure to provide the time and location of the proceeding in the notice to appear. Finally, Sessions emphasizes that the time and location of the proceeding is irrelevant to the goal of the stop-time rule.

BOARD OF IMMIGRATION APPEALS’ INTERPRETATION

Pereira asserts that the statute is unambiguous, but, in the event the Court finds that the statute is ambiguous, Pereira argues alternatively that the Court should not grant Chevron deference to the BIA’s interpretation of § 1229b(d)(1) because the BIA’s interpretation is unreasonable. Pereira maintains that the BIA’s interpretation is unreasonable based on the statutory text, structure, and legislative history of § 1229b(d)(1). Further, Pereira emphasizes, the Court should only accept the agency’s interpretation if the agency provides a strong justification that supports deviation from the best interpretation of the statute. Pereira elaborates that the justification for the BIA’s interpretation is unreasonable because it allows the government to use notices to appear that do not comply with statutory requirements. Pereira asserts that the stop-time rule provided the government with an important tool in regulating immigration in exchange for more information being provided to immigrants than was previously required. Pereira argues that the government’s interpretation attempts to return to the information requirements under the previous statutory scheme and that the BIA’s interpretation, relying partly on the government’s interpretation, attempts to allow the government to escape compliance with requirements for a notice to appear while still being able to utilize the stop-time rule. Finally, Pereira contends that the BIA’s interpretation makes the stop-time rule’s applicability dependent on the conduct of enforcement officials and leads to inconsistent results in similar situations.

Sessions counters that the Court should grant Chevron deference to the BIA’s interpretation of § 1229b(d)(1) because it is, at minimum, a reasonable interpretation of the statute. Sessions posits that even if Pereira’s interpretation is reasonable, that does not make the BIA’s interpretation unreasonable. Sessions also maintains that practical and administrative considerations related to deportation proceedings support the reasonableness of the BIA’s interpretation that a notice to appear under § 1229b(d)(1) need not contain the date and location of the proceeding. Sessions elaborates that because DHS is not involved in setting the date and location of the first proceedings, such information cannot practically be provided in notices to appear—a fact acknowledged in the regulations interpreting the statute. Session further contends that there is no evidence that Congress sought to change the current process and that it is reasonable for the Court to find that Congress preferred to keep the current process in place. Sessions notes that the Court has previously deferred to the BIA’s interpretation of ambiguous immigration statutes. Finally, Sessions argues that the Court has never used a statutory interpretation tool, like the rule resolving ambiguities in favor of immigrants, to reject a reasonable agency interpretation.