Deportation Loophole Faces Supreme Court Scrutiny

WASHINGTON (CN) – Picking up a thorny bit of immigration law, the U.S. Supreme Court agreed Friday to review the deportation of a Brazilian man who has been in the United States for over 13 years.

Continuous physical presence in the United States for at least 10 years is one factor on which a nonpermanent resident alien can rely to have his removal canceled under the Immigration and Nationality Act.

In the case at hand, however, the courts have refused to let Wescley Fonseca Pereira rely on his continuous residence because he had been in the country less than six years when he received a notice to appear from the Department of Homeland Security.

Such notices trigger what is known as the “stop-time” rule, ending the alien’s period of continuous physical presence, but Pereira has fought for an exception because the notice he received in May 2006 did not specify a date and time of his initial removal hearing.

The notice said only that Pereira must appear for the hearing in Boston on a date and time to be determined.

By the time the court set that date and time more than a year later, however, 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, court records show, Pereira was married and a father to two daughters, both U.S. citizens.

He sought to have his removal canceled, arguing that 2006 notice had not stopped the continuous-residency clock because its failure to include a date and time of the hearing made the notice defective.

Pereira appealed to the First Circuit when an immigration judge and the Board of Immigration Appeals ruled against him.

After the First Circuit ruled against him as well, he petitioned the Supreme Court for relief.

Per its custom, the justices did not issue any statement Friday in granting Pereira a writ of certiorari.

Pereira is represented by William McGinley Jay of the firm Goodwin Procter. The American Immigration Lawyers Association has filed an amicus brief with attorneys at the firm O’Melveny & Myers.

As noted in the First Circuit’s ruling, Pereira was supposed to leave the United States after six months when he entered as a nonimmigrant visitor in June 2000.

The First Circuit cited Matter of Camarillo, 2011 precedent by the Board of Immigration Appeals, in ruling against Pereira last year.

“Because we defer to the BIA’s interpretation of the stop-time rule, we agree with the agency’s conclusion that Pereira’s period of continuous physical presence ended when he was served with a notice to appear in 2006,” U.S. Circuit Judge Kermit Lipez wrote for a three-person panel. “At that point, he had been present in the United States for less than six years.”

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