Pereira v. Sessions

Whether, under the stop-time rule, a notice to appear ends a period of continued residence if the notice does not contain the time and place at which the proceedings will be held.

The Attorney General has the power to cancel the removal of an immigrant. To be eligible for cancellation, the applicant as a non-permanent resident must have been physically present in the United States for ten years continuously prior to the cancellation application. According to the stop-time rule under 8 U.S.C. § 1229b(d)(1), that period of continuous residence ends upon the service of a notice to appear. The statute defines a notice to appear as a written notice specifying information, including the time and place at which the proceedings will be held. In 2006, the Department of Homeland Security (DHS) served Petitioner with a notice to appear for overstaying his visa. However, the notice did not state the date or time of his hearing. Over a year later, DHS filed a notice to appear with the immigration court. However, the court used an incorrect address to send the notice and Petitioner did not appear at the hearing. The judge ordered Petitioner removed, but Petitioner was not removed. In 2013, Petitioner was pulled over for a motor vehicle violation and was detained by DHS. The immigration judge reopened the removal proceedings and Petitioner applied for cancellation of removal, arguing that his period of continuous presence continued after the 2006 notice because the notice did not contain the statutory requirements. However, the judge pretermitted the application and the Board of Immigration Appeals affirmed. The First Circuit denied a petition for review, citing the administrative context and the statute’s ambiguity. Petitioner argues that the statute is unambiguous and its plain text clearly states that the stop-time rule does not end a period of continued residence unless the stated requirements are met.