Tuesday, November 29, 2022 | Back issues
Courthouse News Service Courthouse News Service

High Court Shuts Down ‘Bare-Bones’ Deportation Notices

In an 8-1 vindication for a Brazilian handyman, the Supreme Court scoffed Thursday at the U.S. government’s claim to have initiated removal proceedings with a notice to appear that lacked both time and location.

(CN) - In an 8-1 vindication for a Brazilian handyman, the Supreme Court scoffed Thursday at the U.S. government’s claim to have initiated removal proceedings with a notice to appear that lacked both time and location.

“A notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under section 1229(a)’ and therefore does not trigger the stop-time rule,” Justice Sonia Sotomayor wrote for the majority. “The plain text, the statutory context, and common sense all lead inescapably and unambiguously to that conclusion.”

Wescley Fonseca Pereira received the notice in question back in 2006 after he was arrested in Massachusetts for drunken driving.

Though the document notified Pereira that he had overstayed the visa he obtained in 2000 at age 19, Sotomayor called it “critical” that the notice did not specify the date and time of Pereira’s removal hearing.

“Instead, it ordered him to appear before an immigration judge in Boston ‘on a date to be set at a time to be set,’” the ruling continues.

By the time the court set that date and time more than a year later, it mailed the notice to Pereira’s street address on Martha’s Vineyard rather than his post office box.

He never received the notice, as such, and was ordered removed in absentia when he missed the removal hearing on Oct. 31, 2007.

The order caught up with Pereira in 2013 when he was arrested on a traffic violation. At this point, Pereira was married and a father to two daughters, both U.S. citizens.

Before Sotomayor’s reversal today, Pereira had struck out three times in trying to have his removal canceled under a statute that covers noncitizens who have accrued 10 years of continuous physical presence in the United States.

The lower courts found that Pereira’s 2006 notice triggered the stop-time rule under Section 1229(b)(1), but Sotomayor called such a conclusion an “obvious” error.

“For §1229(b)(1) to have any meaning, the ‘notice to appear’ must specify the time and place that the noncitizen, and his counsel, must appear at the removal hearing,” Sotomayor wrote. “Otherwise, the government could serve a document labeled ‘notice to appear’ without listing the time and location of the hearing and then, years down the line, provide that information a day before the removal hearing when it becomes available. Under that view of the statute, a noncitizen theoretically would have had the ‘opportunity to secure counsel,’ but that opportunity will not be meaningful if, given the absence of a specified time and place, the noncitizen has minimal time and incentive to plan accordingly, and his counsel, in turn, receives limited notice and time to prepare adequately. It therefore follows that, if a ‘notice to appear’ for purposes of §1229(b)(1) must include the time-and-place information, a ‘notice to appear’ for purposes of the stop-time rule under §1229b(d)(1) must as well. After all, ‘it is a normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning.’”

Sotomayor called the ruling one dictated by “common sense.”

“If the three words ‘notice to appear’ mean anything in this context, they must mean that, at a minimum, the government has to provide noncitizens ‘notice’ of the information, i.e., the ‘time’ and ‘place,’ that would enable them ‘to appear’ at the removal hearing in the first place,” the ruling states. “Conveying such time-and-place information to a noncitizen is an essential function of a notice to appear, for without it, the government cannot reasonably expect the noncitizen to appear for his removal proceedings. To hold otherwise would empower the government to trigger the stop-time rule merely by sending noncitizens a barebones document labeled ‘Notice to Appear,’ with no mention of the time and place of the removal proceedings, even though such documents would do little if anything to facilitate appearance at those proceedings. ‘We are not willing to impute to Congress ... such [a] contradictory and absurd purpose,’ particularly where doing so has no basis in the statutory text.”

In the lone dissent to Thursday’s ruling, Justice Samuel Alito warned that “Pereira’s interpretation would require the government to include a date and time on every notice to appear that it issues.”

“But at the moment,” Alito continued, “the government lacks the ability to do that with any degree of accuracy. The Department of Homeland Security sends out the initial notice to appear, but the removal proceedings themselves are scheduled by the Immigration Court, which is part of the Department of Justice. The Department of Homeland Security cannot dictate the scheduling of a matter on the docket of the Immigration Court, and at present, the Department of Homeland Security generally cannot even access the Immigration Court’s calendar. The Department of Homeland Security may thus be hard pressed to include on initial notices to appear a hearing date that is anything more than a rough estimate subject to considerable change.”

As to the notion that Homeland Security include an estimated and changeable date, Alito said such a requirement “may do much more harm than good.”

“It is likely to mislead many recipients and to prejudice those who make preparations on the assumption that the initial date is firm,” Alito wrote. “And it forces the government to go through the pointless exercise of first including a date that it knows may very well be altered and then changing it once the real date becomes clear. Such a system serves nobody’s interests.”

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.