Pereira's Aftershocks

Abstract

At the end of its last term, the Supreme Court held in Pereira v. Sessions that a notice to appear at removal proceedings that does not include the time and place of the proceedings cannot interrupt the continuous physical presence requirement that may entitle a noncitizen to cancellation of removal. Since the decision was announced, there has been a feverous debate about whether the case applies not just when cancellation of removal is sought but to all immigration removal proceedings since every judicial removal proceeding is initiated with a notice to appear. Immigration advocates argue, and some courts have already agreed, that Pereira applies to all adversarial removal proceedings and that the case necessarily means that immigration courts lack subject matter jurisdiction in any case that began with a notice to appear that did not include the time and place of the proceedings. By contrast, the government’s view — and that of a number of other courts — is that Pereira is very limited in its application. To help lawyers and judges think clearly about the case’s impact, this paper offers an assessment of the issues raised. I reach several major conclusions that, collectively, are at odds with positions advanced on both sides. As for Pereira’s scope, I conclude that it applies to all removal proceedings and is not confined to the narrower context in which the case arose. However, I reject the view that treating improper notice is relevant to the immigration court’s jurisdiction over removal proceedings. But while a defective notice is irrelevant to the court’s jurisdiction, there still are consequences if the government has served a defective notice. I show that whether, and in what cases, a Pereira challenge may matter turns on three factors: Pereira’s applicability, either prospectively or retroactively; the possibility of forfeiture; and, finally, the noncitizen’s ability to demonstrate prejudice in the underlying removal proceeding resulting from service of a defective notice.