Updated May 12
WASHINGTON — It is virtually impossible to forecast how the justices of the U.S. Supreme Court will rule based on the questions they ask. This is true in a case heard Monday involving a Martha’s Vineyard man, Wescley Pereira, which has implications for immigration nationally as well as administrative law.
The nation’s highest court heard oral arguments regarding the deportation of Pereira, who currently resides on Martha’s Vineyard. Most of the tough questions targeted the government, not Pereira’s lawyer, David Zimmer, in the case known as Pereira v. Sessions.
The hearing lasted an hour, with each side given 30 minutes to present its case. Zimmer, who went first, reserved about three minutes of his time for rebuttal.
Pereira came to the United States from Brazil in 2000 when he was 19. Six months later, his temporary visitor visa expired. He has since married, had two children, and works as a handyman on the Island.
Under federal immigration law, if an undocumented immigrant is continuously present in the U.S. for 10 years, he can attempt to remain in the United States by appealing to the U.S. Attorney General who has the final say. In addition to the 10-year rule, the person must meet these criteria: he must show that he has been a person of good moral character during the 10-year period; he must not have been convicted of an offense such as a crime of moral turpitude or a violation of the Controlled Substances Act, a crime leading to a sentence of one year or more, a violent crime, a crime of domestic violence, a crime of falsely claiming citizenship, terrorism, or unlawful voting. The alien must establish that removal would result in exceptional and extremely unusual hardship to his spouse or child, who is a citizen of the United States. The Attorney General has the discretion to issue a waiver to the applicant.
If, however, he receives a notice to appear from the Department of Homeland Security (DHS), the 10-year clock stops. This is known as the “stop-time rule.”
In 2006, Pereira received such a notice while he was in custody of DHS after he was arrested and charged with operating under the influence of alcohol. The notice did not include a date or time indicating when the hearing was to be held. DHS later sent another notice to his home address with this information, but since Pereira picked up his mail at a Post Office box, he never received the notice.
In 2013, 13 years after his arrival, DHS ordered Pereira’s removal. Pereira then asked the Board of Immigration Appeals to overturn the DHS decision, but his request was denied. The U.S. Court of Appeals for the First Circuit affirmed the board’s action, which led Pereira to take his case to the Supreme Court, claiming the notice to appear was faulty and illegal because it contained no date or time.
If the First Circuit’s ruling stands, Pereira’s “continued presence” effectively stopped in 2006 and he is subject to deportation. He claims, however, that the faulty notice did not invoke the stop-time rule, and thus he has had a continued presence for 13 years.
The U.S. Supreme Court rarely accepts appeals. Of the some 8,000 or so that they receive each year, they typically review less than 1 percent. This year, so far, the court has heard oral arguments in only 50 cases. The last oral argument of the current term is this week, concerning the Trump administration’s travel ban.
The Supreme Court accepted the Pereira case for a twofold reason. First, there is a split among the U.S. Circuit Courts of Appeal, and that is usually a tipoff that a case is ripe for Supreme Court action: The justices can resolve the disputes among the circuit courts. While most of them agree with the First Circuit, the Third Circuit disagreed about the need for a date and time on the notice.
The second reason is that in the past, most of the justices have abided by what is known as the Chevron doctrine or deference. This principle derives from a 1984 decision in Chevron Corp. USA v. National Resources Defense Council, concerning an ambiguity in the Clean Air Act. Before this decision, the court itself resolved all ambiguities in federal law by interpreting the meaning of a statute. This is known as statutory interpretation.
The Chevron doctrine developed into “administrative deference,” whereby the court will follow the meaning given to a law by the agency in charge of its regulation. But, according to Justice John Paul Stevens, who wrote the Chevron decision, the Supreme Court has a role. First, if Congress’ intention in passing the law is clear, neither the court nor the agency can change that intention. Second, if the statute is ambiguous or silent about an issue, the agency’s interpretation must be “based on a permissible construction of the statute.” In other words, the agency’s interpretation must be reasonable.
For deportation issues, as in Pereira’s case, the administrative agency is the Board of Immigration Appeals, which ruled against him. And the First Circuit accepted its decision as reasonable.
Zimmer, representing Pereira, was straightforward and to the point in arguing on his behalf. He opened his argument by saying that “the government cannot service a Notice to Appear without telling an immigrant when and where to appear.”
Zimmer continued: A “notice that lacks that required information and does not tell an immigrant when and where to appear is not a notice to appear … and does not trigger the stop-time rule.” The form begins with the words in the top right, notice to appear, and ends with a place where DHS officers fill in the date and time.
Chief Justice John Roberts and Justice Samuel Alito Jr. did not seem sympathetic to Zimmer’s argument. The lack of a time and date on the form was to them irrelevant, because DHS often changes them.
After Zimmer’s time was up, the government argument was set out by Frederick Liu, the Assistant to the Solicitor General of the United States (the solicitor general is the Justice Department official who argues cases before the Supreme Court). To him, five justices directed their most probing questions: Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Neil Gorsuch were especially fervent in trying to force Liu to explain how a notice to appear could be issued without the date and time clearly spelled out on the form.
Justice Breyer seemed particularly piqued by Liu’s argument. He said he could not understand how anyone could possibly satisfy the requirements of a notice to appear if he did not know when to go and at what time. He contended that DHS in the past set up removal hearings by indicating a date, time, and location even if they later changed. He wanted to know why the department no longer did that.
Justice Breyer, like Zimmer, relied on a friend of the court brief filed by the former head of the Board of Immigration Appeals, former immigration judge Paul Schmidt. Justice Breyer recounted Judge Schmidt’s description of how hearings worked under his leadership.
To set up a hearing, said Justice Breyer, “meant that a human being was over at DHS, would go to his computer, found out what dates were available, and fill them in the notice to appear. Now that wouldn’t seem too tough. We do have computers today. It would seem to be possible. And yet, what [Judge Schmidt] says … is it eventually fell out of use, that system. And ‘he does not know exactly why.’ OK. So I think to have a reasonable agency decision, you would have to appear” with knowledge of a time and date. “So what is the reason” why it longer seems to be necessary?
Liu struggled to answer by suggesting that DHS changes its schedule all the time, so actually putting in dates and times would make no difference. He added that DHS did send Mr. Pereira an updated notice to appear, and even though the officials knew his Post Office box number, they did not send it there.
But Liu’s answer failed to satisfy Justice Breyer, which caused the justice almost to lose his temper. He demanded documents showing when and why the DHS changed its policy and no longer included dates and times of hearings. He argued that without them, the Board of Immigration Appeals decision was unreasonable. And this touched on the Chevron doctrine. If the board made an unreasonable decision, it cannot stand.
Justice Breyer later apologized for his intemperate attitude: “My questions were rather mean, but they were designed to uncover something … I didn’t mean them to be so mean, I’m sorry, but the fact is that there is an interesting Chevron question that’s difficult. And that is how much of a reason does an agency have to give” to be rational?
He did not seem persuaded that the lack of critical information in a notice to appear was rationally reviewed by the Board of Immigration Appeals.
The justice raised other technical issues as well, but the overall questioning appeared to favor Pereira, though it is important to emphasize again that justices’ questions and comments do not always forecast an outcome.
The Chevron doctrine has become highly debated. Most justices and all the administrative agencies approve of it, because the specialists who work in the agencies appear to know more about the subject matter than a group of judges. The late Justice Antonin Scalia, one of the most conservative members of the court during his tenure, endorsed it. In a 1989 speech to Duke Law School, he said, “In the long run, Chevron will endure and be given its full scope.” The reason is that it more “accurately reflects the reality of government, and thus more adequately serves its needs.”
His successor, Justice Gorsuch, agrees with most of Justice Scalia’s ideas and approaches to constitutional and statutory questions of interpretation, except here. As a judge on the Tenth Circuit Court of Appeals in 2016, he wrote in a concurrence that the Chevron deference is “a judge-made doctrine for the abdication of the judicial duty.” Curiously, Justice Gorsuch also wrote the majority opinion in this case, but added his own concurrence to attack administrative deference.
The outcome of the case may well hinge on how the justices now view the doctrine. A ruling is expected by the end of June, when the current Supreme Court term ends.
Updated to clarify the 10-year rule and who has final say over a person’s right to stay in the U.S. – Ed.