Pereira v. Sessions
866 F.3d 1
| 1st Cir. | 2017Background
- Pereira, a Brazilian national, overstayed a 2000 visa and was personally served a notice to appear (NTA) by DHS in May 2006 that did not list the date/time of the initial hearing.
- DHS later filed the NTA with the immigration court; a hearing notice dated October 31, 2007 was mailed to Pereira’s street address (not his PO box) and he did not receive it; an IJ entered an in-absentia removal order.
- Proceedings were reopened in 2013 after Pereira was detained; he conceded removability and sought cancellation of removal under 8 U.S.C. § 1229b(b)(1) (requires 10 years continuous physical presence).
- Pereira argued the 2006 NTA was defective because it omitted date/time, so the stop-time rule (which cuts off accrual of continuous presence when an alien is served a NTA under § 1229(a)) did not trigger until he received the later hearing notice.
- The IJ and BIA followed Matter of Camarillo, holding an NTA lacking date/time still triggers the stop-time rule; Pereira petitioned for review in the First Circuit.
Issues
| Issue | Pereira's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether an NTA lacking the date and time of the initial hearing can trigger the stop-time rule under 8 U.S.C. § 1229b(d)(1) | The stop-time rule unambiguously requires a § 1229(a) NTA to include all items (including date/time); without that, continuous presence continues | The statutory reference to a notice to appear is definitional; a served NTA (even if omitting date/time) can trigger stop-time because courts set hearing dates separately | The statute is ambiguous; Chevron deference to the BIA’s Camarillo interpretation is appropriate; an NTA without date/time can trigger stop-time |
| Whether Chevron deference applies to the BIA’s interpretation of the stop-time rule | N/A (argued that statute is unambiguous so no deference) | BIA interpretation is reasonable and entitled to Chevron deference | Chevron step one: statute ambiguous; step two: BIA’s construction is permissible and deferable |
| Application to Pereira’s eligibility for cancellation of removal | N/A (contends accrual continued until 2013) | Stop-time triggered in 2006, so Pereira lacked 10 years continuous presence | Pereira’s continuous presence ended in 2006; he did not meet the 10-year requirement; petition denied |
| Whether the case requires addressing boundary cases (e.g., NTAs with no information) | Argued Camarillo could be read too broadly | BIA’s decision limited; case facts involve omitted then later-provided hearing date | Court declined to define extreme boundaries; limited to facts here |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) (framework for judicial deference to agency statutory interpretations)
- Becker v. Montgomery, 532 U.S. 757 (2001) (minor defects in filings can be curable and not defeat the filing’s purpose)
- Wang v. Holder, 759 F.3d 670 (7th Cir. 2014) (defective NTA may still serve stop-time function)
- Gonzalez-Garcia v. Holder, 770 F.3d 431 (6th Cir. 2014) (granting Chevron deference to Camarillo)
- Guaman-Yuqui v. Lynch, 786 F.3d 235 (2d Cir. 2015) (per curiam) (endorsing BIA’s Camarillo interpretation)
- Moscoso-Castellanos v. Lynch, 803 F.3d 1079 (9th Cir. 2015) (applying Chevron deference to Camarillo)
- Orozco-Velasquez v. Attorney Gen., 817 F.3d 78 (3d Cir. 2016) (concluding statute unambiguous such that NTA must include date/time)
- Cheung v. Holder, 678 F.3d 66 (1st Cir. 2012) (distinguished; addressed later-withdrawn charges rather than omitted NTA information)