Martha’s Vineyard immigration case headed for Supreme Court

High court agrees to settle dispute over what constitutes a ‘stop’ in continuous presence.

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The U.S. Supreme Court has agreed to hear an immigration case involving a Martha's Vineyard man who is facing deportation to Brazil.

The U.S. Supreme Court has decided to hear a case that has a Martha’s Vineyard connection, and would settle a key conflict in the immigration debate. At issue is how and when notice is given of deportation, and what constitutes a “stop” in an immigrant’s 10 years of continuous physical presence in the country.

In an order dated Jan. 12, the nation’s highest court agreed to hear the case involving Wescley Fonseca Pereira, an immigrant who is facing deportation to his native Brazil.

Pereira’s attorneys argue he was not served proper notice because the document was sent to his street address in Oak Bluffs, rather than his Post Office box, according to court documents.

Court records indicate Pereira came to the Island in June 2000 for a period of six months as a temporary nonimmigrant visitor. “He failed to honor the terms and conditions of his admission, remaining for years after its December 2000 expiration,” according to a brief filed on behalf of U.S. Attorney General Jeff Sessions.

In May 2006, Pereira was arrested and charged with operating under the influence of alcohol. While he was in custody, the Department of Homeland Security issued a notice to appear for removal under the Immigration and Nationality Act. The order did not include a specific date and time.

His hearing was later set for Oct. 31, 2007. “Petitioner failed to appear at that hearing, however, and was ordered removed in absentia,” court records state.

If an immigrant remains in the country for 10 consecutive years, he is not eligible to be removed, under federal immigration law.

Pereira’s attorneys argued “he had been physically present in the United States since June 2000.” They also argued that the “May 2006 notice to appear did not interrupt his accrual of the statutorily required 10 years of continuous presence, because it did not include a date and time certain for his initial hearing.”

At the heart of his legal argument is that “stop-time rule” of immigration law. The removal case wasn’t reopened until 2013, after Pereira had been in the country for 13 years.

The Board of Immigration Appeals affirmed Pereira’s deportation, stating “an alien’s period of continuous physical presence for cancellation of removal is deemed to end upon service of the notice to appear, even if the notice to appear does not include the date and time of the hearing.” “Because petitioner was personally served with a notice to appear in May 2006, less than 10 years after he was admitted into the United States, the board determined that he ‘lack[ed] the requisite period of continuous physical presence for cancellation.’”

The court of appeals upheld the immigration board’s decision, which prompted the petition to the U.S. Supreme Court.

According to a brief filed on behalf of the attorney general’s office, “legislative history of the stop-time rule also strongly supports the [Board of Immigration Appeals] interpretation.”

The brief states that Congress sought to close loopholes in the legislation. “There is no reason that Congress would have wanted an alien to be able to take advantage of the very loophole it sought to close, merely because the notice to appear that initiated his deportation proceedings did not include a precise date and time for his initial hearing,” the brief states.

But Pereira’s attorneys argue he couldn’t fail to show for a hearing until one was scheduled and he was notified of it. “[The attorney general’s] citations show only that Congress did not want immigrants to be able to extend their qualifying residence period by deliberately failing to appear at their removal proceedings,” the brief states.

Documents indicate that Pereira is the father of two daughters born in the United States who would suffer a hardship if he was deported. A birth announcement published by The Times indicates his second daughter was born in 2013 at Martha’s Vineyard Hospital.

“Though the standard for cancellation is high, it does not require that the harm be ‘unconscionable,’ nor is it ‘so restrictive that only a handful of applicants, such as those who have a qualifying relative with a serious medical condition, will qualify for relief,’” his attorneys argued.

David Zimmer, an attorney with Goodwin Proctor who represented Pereira, wrote in an email that Pereira still lives on the Island. No date has been set for the hearing, but it’s likely to be in April, and decided sometime in June, Zimmer wrote.

“He is very happy that the Supreme Court agreed to hear the case,” Zimmer wrote of his client.