The broad implications of the Pereira decision


The Supreme Court of the United States essentially engages in two kinds of interpretation. The most well-known is constitutional, when the justices decide whether a state or federal law or some action by an official violates one or more of the provisions of the U.S. Constitution.

It engaged in constitutional interpretation, for example, when the justices ruled unanimously in 1954 that segregated schools were inherently unequal under the equal protection clause of the 14th Amendment; or when in 2015 the court decided that the Constitution guaranteed a right to same-sex marriages.

But the court also deals with statutory interpretation, which is often a more difficult, sometimes less exciting, task. Several questions arise in terms of how to do this. Should the court consider only the language of the law itself? Should it review the legislative history to determine what legislators were trying to achieve? This would mean delving into the written and oral testimony and the discussion during the legislative hearings. How should the court deal with a decision made by agency experts when they interpret a statute, especially if, say, Congress has not been specific?

This last question is what the court did on June 21 in its 8-to-1 decision concerning Wescley Pereira, originally from Brazil, who now lives in Oak Bluffs. The Board of Immigration Appeals, which is part of the Department of Justice, upheld his 2013 deportation order that an immigration court had issued. But eight justices agreed that he had received a faulty Department of Homeland Security notice of appeal before an immigration judge in 2006: It did not indicate a time and place for his hearing.

When DHS a year later sent another notice specifying a time and place, it went to the wrong address, and was returned as undeliverable.

The law states that an undocumented immigrant who has a continuous presence in the United States for 10 years can appeal to the Board of Immigration Appeals to cancel his deportation order for good reason. Pereira claimed his deportation order came in 2013, 13 years after he overstayed his visitor’s visa.

The United States, in turn, claimed that he came to the attention of DHS when he was arrested in 2006 for driving under the influence of alcohol, and sent him “a notice to appear” for a hearing, but without stating the time and place. A year later, the DHS sent him another notice with this information, but it went to the wrong address. DHS ordered him deported in absentia, but did not act on the order. In 2013, an immigration judge ordered him removed, and the Board of Immigration Appeals upheld the order.

At issue is the interpretation of the “stop-time rule.” Did his continuous presence “stop” when he received the initial notice to appear back in 2006, even though it did not contain a time and place for the hearing? Was it in 2007 when DHS sent him a second notice with a time and place, though to the wrong address? Or was it 2013?

The agency, the Board of Immigration Appeals, interpreted the federal immigration law’s phrases “continued presence,” “notice to appeal,” and “stop-time” to mean that Pereira had to abide by the deportation order. The court has long deferred to the agencies’ interpretation of federal law within their area of expertise, because those who work in those agencies are far more expert than judges when it comes to handling these matters.

The court formally recognized this deference in the so-called “Chevron rule,” which developed because of the 1984 case of Chevron Corp., USA v. Natural Resources Defense Council: In the words of Justice John Paul Stevens, writing for the court back then, if “the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

One of the most conservative members of the court, Justice Antonin Scalia, endorsed the Chevron rule: In speaking at the Duke University School of Law, he said that “broad delegation to the executive is the hallmark of the modern administrative state; agency rulemaking powers are the rule rather than, as they once were, the exception; and as the sheer number of modern departments and agencies suggests, we are awash in agency ‘expertise.” … “In the long run, Chevron will endure and be given its full scope.”

In Pereira’s case, the U.S. Court of Appeals for the First Circuit ruled that the BIA’s interpretation of the federal immigration statute was permissible, that even without the time and place of a hearing, the stop-time began in 2006, all because of the Chevron rule.

Justice Sotomayor, writing for seven other members of the court, disagreed. She held that a notice to appear must contain all the items listed in the law, including the time and place of a hearing. Thus, she said, “the court need not resort to Chevron deference, as some lower courts have done, for Congress has supplied a clear and unambiguous answer to the interpretive question at hand. A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under [the federal immigration law],’ and so does not trigger the stop-time rule.”

Under the federal immigration law, Pereira now has the opportunity for the lower courts and the Board of Immigration Appeals to reconsider his deportation order.

But the broader implications have to do with statutory interpretation. Will the court ultimately consign the Chevron rule to oblivion, as some justices, namely Anthony Kennedy, Samuel Alito, and Clarence Thomas, would like to do? If so, the judges, not agency experts, despite Justice Scalia’s endorsement, would be final interpreters of laws affecting federal agencies.


Jack Fruchtman, a seasonal Aquinnah resident, teaches constitutional law and politics at Maryland’s Towson University.



  1. This is not complicated. The burden is, as it should be, on the government to follow it’s own rules and catch the alien. If it fails to do so and the alien can hang tough and clean for 10 years he deserves a break – kinda like an informal “statute of limitations”.

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