## Facts

- Federal immigration law allows certain nonpermanent residents to seek cancellation of removal if, among other requirements, they have been continuously physically present in the United States for at least 10 years.
- Under the “stop-time rule,” continuous physical presence ends when the noncitizen is served “a notice to appear under” 8 U.S.C. § 1229(a).
- Section 1229(a)(1) defines a “notice to appear” as written notice that must specify several items, including the time and place of the removal proceedings.
- Wescley Fonseca Pereira, a native and citizen of Brazil, was admitted to the United States in 2000 as a temporary nonimmigrant visitor.
- After his visa expired, Pereira remained in the United States without authorization.
- In 2006, following an arrest, the Department of Homeland Security served Pereira in person with a document labeled “Notice to Appear.”
- The document ordered Pereira to appear for removal proceedings but did not specify the date and time of the hearing.
- The immigration court later attempted to mail Pereira a separate notice setting the hearing’s date and time, but that notice was returned as undeliverable.
- Pereira did not appear at the hearing, and the immigration court ordered him removed in absentia.
- Pereira was unaware of the in absentia removal order and continued living in the United States.
- In 2013, after another arrest, the immigration court reopened Pereira’s removal proceedings.
- Pereira applied for cancellation of removal, arguing he had accrued 10 years of continuous physical presence and that the stop-time rule was not triggered because the initial notice lacked the hearing’s time and date.

## Issues

1. Whether a document labeled a “notice to appear” that does not specify the time and place of the removal hearing qualifies as “a notice to appear under” 8 U.S.C. § 1229(a) for purposes of triggering the stop-time rule in 8 U.S.C. § 1229b(d)(1)(A).

## Decision

- The Supreme Court reversed the judgment of the U.S. Court of Appeals for the First Circuit and remanded.
- The Court held that a notice to appear that fails to specify when and where to appear for removal proceedings is not “a notice to appear under section 1229(a)” and therefore does not trigger the stop-time rule.
- The majority relied on the statutory text: § 1229(a)(1) requires notice “specifying” the time and place of proceedings, and § 1229b(d)(1)(A) ties stop-time to service of a notice “under” § 1229(a).
- Because the statute was unambiguous, the Court did not defer to the agency’s contrary reading under Chevron.
- Justice Kennedy concurred separately, warning against automatic deference where courts must first determine whether Congress has clearly answered the question.
- Justice Alito dissented, concluding the statutory scheme was ambiguous and the agency’s interpretation should have received Chevron deference.

## Legal Principles

- For stop-time purposes, service must be of “a notice to appear under” § 1229(a), meaning a notice that satisfies § 1229(a)(1)’s requirements.
- An NTA that does not specify the time and place of the removal hearing is not a valid § 1229(a) notice to appear for triggering the stop-time rule in § 1229b(d)(1)(A).
- When statutory language is clear, Chevron deference does not apply.
- A document’s label (“Notice to Appear”) does not control if the document lacks information that Congress required a notice to contain.

## Conclusion

The Court held that an immigration charging document that omits the hearing’s time and place is not a “notice to appear under” § 1229(a) and therefore does not stop the accrual of continuous physical presence for cancellation of removal under the stop-time rule, requiring reversal of the First Circuit and remand.


Pereira v. Sessions, 138 S. Ct. 2105 (2018)