Latest Pereira Developments

I have previously discussed the implications of the Supreme Court’s 2018 decision in Pereira v. Sessions here and here.  There are two aspects to the Pereira decision.  The first is the narrow issue presented to the Supreme Court, concerning whether the service of a purported charging document (known as a Notice to Appear, or “NTA”) that is defective in its lack of a time and date as required by statute triggers what is known as the “stop-time rule.” That rule prevents a non-citizen from accruing additional continuous residence towards the 10 years needed to be able to apply for a relief known as Cancellation of Removal.  If the time was not stopped by the defective NTA, non-citizens continue to accrue time towards the ten-year requirement, eventually allowing many to apply for that additional form of relief that would have otherwise been closed to them. The second aspect of Pereira (and the one discussed in my prior posts, which has captured the imagination of many immigration practitioners) concerns whether the particular language employed by the Supreme Court in holding that no, the defective document does not trigger the stop-time rule because by virtue of its defect, the document isn’t in fact an NTA, can be interpreted to more broadly undermine the legitimacy of every case, past and present, that was initiated by DHS with such a defective document.  

In spite of high hopes regarding the second issue (which were raised by the termination of 9,000 removal cases by immigration judges in just the first two months following the Pereira decision), the tide turned with the issuance of decisions to the contrary, first by the BIA in Matter of Bermudez-Cota, and then by decisions from the U.S. Courts of Appeals for the Sixth, Ninth, and Second Circuits affirming the BIA’s ruling.

Although a recent decision of the Seventh Circuit also refused to terminate the petitioner’s proceedings, it did so in a unique way that is worth discussing.  In Ortiz-Santiago v. Barr,  the court disagreed with the view of its sister circuits that Pereira’s holding was limited to the narrow issue of the stop-time rule, and that the NTA’s requirements are satisfied by the two-step process of the service of a defective NTA followed by the immigration court’s mailing of a notice providing the missing information.  The Seventh Circuit found that “Pereira is not a one-way, one-day train ticket,” in that its holding has broader implications than merely the stop-time rule.  The court rejected as “absurd” the Government’s argument that the NTA referenced in the statute is a different document from the one referenced in the regulations.  (It bears noting that the 6th Circuit adopted this argument in footnote 4 of its decision in Santos-Santos v. Barr).  The 7th Cir. was also unpersuaded by the two-step compliance approach of the BIA in Bermudez-Cota (which the other three circuits deferred to).  The 7th Circuit stated that Bermudez-Cota “brushed too quickly over the Supreme Court’s rationale in Pereira and tracked the dissenting opinion rather than the majority.”  The court added that “Congress itself appears to have rejected the two-step approach” when it passed the legislation that created the NTA.

The Seventh Circuit then turned to the issue of what should result from a finding that an NTA did not comply with the statute.  Here the decision takes an interesting turn. The court stated that the fact that the regulation states that “jurisdiction vests” upon the service of an NTA isn’t read as “jurisdiction” “in the same sense that complete diversity or the existence of a federal question is for a district court.”  Instead, the court interpreted the question of “jurisdiction” in an agency regulation as what it termed a “claim-processing rule,” which the court defined as a rule “that seeks to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.”  The court noted that the failure to comply with a claim-processing rule may result in termination of the case, but only if a timely objection is raised. In the absence of such timely objection, the failure to comply “may...be waived or forfeited by the opposing party.” The court turned to the question of whether the lack of such timely objection in the case before it constituted such forfeiture, or (1) whether the fact that doing so at the time would have been futile under existing circuit case law, and (2) the major legal change that the Pereira decision constituted, allowed for the late raising of such objection.  The court answered this last question in the negative, concluding that the petitioner could have gleaned even pre-Pereira that a potential problem existed, as portended from the stand-alone position of the Third Circuit’s 2016 decision in Orozco-Velasquez v. Holder, which created the circuit court split that led the matter to eventually be taken up by the Supreme Court in Pereira.

Although the Ortiz-Santiago decision ultimately denied the motion for termination, it created a new road map for analyzing such claims.  Most notably, it rejected the BIA’s analysis of the issue in Bermudez-Cota.  It is wondered whether another circuit might be persuaded to adopt the reasoning of this decision (which I liken to a ball that looks like it might be a home run before hooking foul at the last moment) but differ on whether the issuance of the Pereira decision would form a legitimate basis for allowing the raising a late objection.

Not content with its ruling on the jurisdictional issue, the BIA returned to the narrower issue in Pereira in a May 1 precedent, Matter of Mendoza-Hernandez and Capula-Cortez, in which the Board held that the two-step rule rejected in Pereira is not only sufficient for broader jurisdictional purposes, but remarkably, is also sufficient to trigger the stop-time rule.  The degree of chutzpah involved in reaching a decision directly at odds with the Supreme Court’s holding was so great that a sharply-divided Board made the case its first en banc decision in 10 years, revealing a 9 to 6 split among its permanent judges.

In the current issue of the American Bar Association’s Judges’ Journal, Richard J. Pierce, Jr., a law professor at George Washington University discusses the right of the president to remove officers within the federal government at will. (The article has been reprinted here on the website of my friend and colleague Paul Schmidt).   Using the example of immigration judges, Prof. Pierce argues of the need to protect those performing an adjudicatory function from at-will removal “in order to reduce the risk that they will adjudicatory hearings in ways that reflect pro-government bias in violation of due process.”  Prof. Pierce cites the present danger under a president and attorney general who have expressed strong anti-immigrant views “and have applied extraordinary pressure on IJs to deny applications for asylum.” Prof. Pierce opines that it is unrealistic to expect all immigration judges to be able to withstand such pressure.  I believe that Mendoza-Hernandez is a perfect example of this.  If only two of the nine Board Members in the majority ruled as they did out of fear of repercussions from the Attorney General, such pressure effectively changed the outcome of the decision.  I feel strongly that this in fact happened.

The Ninth Circuit took only three weeks to reverse the Board’s decision.  The circuit court ruled to the contrary that a subsequent hearing notice does not trigger the stop-time rule.  The court also held that it owes no deference to the BIA’s interpretation of Supreme Court decisions; that the BIA ignored the plain text of the statute it claimed to be interpreting; and that the BIA relied on case law that could not be reconciled with the Supreme Court’s decision in Pereira.  As the BIA will undoubtedly continue to apply its erroneous decision outside of the Ninth Circuit, it is hoped that the other circuits will quickly follow the Ninth Circuit’s lead.    Sadly, the majority of the BIA’s judges have signaled that they will not act as neutral arbiters and afford due process. It is left to the circuit courts to provide the necessary correction.

Copyright 2019 Jeffrey S. Chase.  All rights reserved.