Case No. 17-459 | 1st Cir.
Under 8 U.S.C. § 1229b(a) and (b), which is available to “person[s] of good moral character,” the Attorney General may cancel the removal of certain immigrants whose removal would cause “exceptional and extremely unusual hardship” for family members who are U.S. citizens. 8 U.S.C. § 1229b(b) (2012). This relief is available to immigrants who have been physically present in the United States for a continuous period of ten years or more immediately preceding the date of the application. The continuous residence period ends when an immigrant is served a notice to appear under 8 U.S.C. § 1229(a). This section says that the notice to appear “shall be given in person to the alien . . . specifying . . . [t]he time and place at which the proceedings will be held.” This is called the “stop-time rule.”
Congress added the stop-time rule to disincentivize immigrants who slowed removal proceedings so that they could satisfy the residence requirement because the continuous residence period continued to run during removal proceedings. The Board of Immigration Appeals interprets the stop-time rule to only require notice, even if that notice does not include the time and place where the hearings will be held. The First Circuit and five other circuits have interpreted the stop-time rule in the same manner. The Third Circuit requires time and place to be included for the stop-time rule to take effect.
Wescley Pereira is the father and primary breadwinner for his two young children, both of whom are U.S. citizens. He resides in Martha’s Vineyard, where he has been a respected member of the community for more than a decade. Pereira came to the United States on a tourist visa in 2000. In 2006, the Department of Homeland Security (“DHS”) served him with a notice to appear that did not include the time and place of his hearing. Over a year later, his notice to appear was filed with the immigration court. The court attempted to deliver the notice by mail, but had the wrong mailing address. Mr. Pereira did not attend the hearing. The proceedings went forward and he was ordered to be removed, although he was not aware of this decision. In 2013, Pereira was pulled over for a minor traffic violation and ended up being detained by DHS. He then applied for cancellation, arguing that he satisfied the ten-year continuous presence requirement.
The question for the Court will be whether to defer to the Board of Immigration Appeals, or take a textual approach to interpreting the statute and examine why Congress included time and place in the notice if they did not intend time and place to be of any importance. During this trying time for immigrants in the United States, a rejection of the Board of Immigration Appeals’ interpretation will be an acceptance of the contributions of hardworking immigrants.