A case involving a Martha’s Vineyard immigrant will be heard by the U.S. Supreme Court Monday, April 23, the court announced late last week.
In January, the court agreed to hear the case involving Wescley Fonseca Pereira, a native of Brazil who is facing deportation, but didn’t set the date for the oral arguments until Friday. At the heart of the case is the issue of what constitutes a “stop” in an immigrant’s 10 years of physical presence in the United States.
Pereira came to the Vineyard in June 2000 as a temporary visitor, but stayed beyond the six months allowed. According to court records, he was arrested and charged with operating under the influence of alcohol in 2006. 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.
As they have throughout the court process, Pereira’s attorneys will 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.
If an immigrant remains in the country for 10 consecutive years, he is not eligible to be removed, under federal immigration law. The removal case wasn’t reopened until 2013, after Pereira had been in the country for 13 years, according to court records.
The U.S. Attorney’s office has argued that Pereira’s consecutive years ended with his criminal charge and order of deportation when he failed to appear for his immigration hearing.
Jack Fruchtman, an Aquinnah seasonal resident who teaches constitutional law at Maryland’s Towson University, explained what will happen at the hearing.
“On that date, each side will have 30 minutes to present oral arguments,” Fruchtman wrote in an email to The Times. “This is not testimony, but oral argument to amplify the written briefs’ position. The justices may interrupt at any time with questions or comments. Lawyers may not speak from a prepared written text. Their comments must be extemporaneous. In this way, it is much like a conventional law school class with the Socratic method, but here the justices are the professors, the lawyers the students.”
A decision could come by the end of June, Fruchtman wrote, echoing a comment made by Pereira’s attorney when the court announced its decision to hear the case.
It’s rare for the Supreme Court to hear a case. Each year the court takes about 1 percent of the 8,000 to 9,000 cases it’s asked to consider.
Fruchtman wrote that the high court likely decided to take the Pereira case because two lower court rulings are at odds — the First Circuit in Boston, which heard the Pereira case, and the Third Circuit in Philadelphia.
The First Circuit upheld the Board of Immigration Appeals, which agreed that Pereira should be deported for not showing up to his hearing. “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,” the Board of Immigration decision stated. “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.’”
Pereira is the father of two daughters born in the United States who his attorneys have argued would suffer hardship if he was deported. The family is still living on the Island, his attorney told The Times last month.
The American Immigration Lawyers Association has written an amicus brief in support of Pereira.
Coincidentally, the Supreme Court will hear another highly charged immigration case within two days of the Vineyard-related case. The court announced it will consider President Trump’s travel ban on April 25.