Unintended consequences at the Supreme Court

MARY REICHARD, HOST: Coming up next on The World and Everything in It: a Supreme Court ruling with unintended, though predicted, consequences. It’s a case we covered on Legal Docket back in May.

NICK EICHER, HOST: In June, the Supreme Court handed down a ruling in the case of a Brazilian man who overstayed his visa. In 2006, the Department of Homeland Security put Wescley Pereira into deportation proceedings. But, and this is the key point, his initial notice to appear in court didn’t include a specific date and time. It just said at a time “to be set.”

When the immigration court finally settled on a date, it mailed Pereira a notice. But he had moved in the meantime and never got that letter. When he didn’t show up in court, the judge ordered him deported. So Pereira appealed and pointed to a law that says if an illegal immigrant is in the country for 10 years or more, then that person can appeal deportation rulings.

REICHARD: Pereira argued he met that 10-year continuous presence rule if you don’t count that non-specific notice. The Supreme Court agreed. It said paperwork without a time and place doesn’t constitute legal notice to appear in court.

But as WORLD Radio’s Sarah Schweinsberg reports, what appeared to be a small technical ruling has affected thousands of immigrants.

SARAH SCHWEINSBERG, REPORTER: When the Supreme Court handed down its Pereira ruling, Parastoo Zahedi says it sparked a frenzy. She’s an immigration attorney in Vienna, Virginia, and she says immigration attorneys across the country soon realized Pereira’s potential to get their client’s removal proceeding cases dismissed.

ZAHEDI: A lot of attorneys were trying to, you know, discuss as soon as it came out, how do we read this? What did we do? Did we file motions to terminate, what do we do?

So Zahedi started a private Facebook group. Soon 1,600 lawyers joined to share strategies.

ZAHEDI: We started sharing ideas, sharing a draft motions and then as soon as attorneys started getting decisions, well we would post it and shared with each other and discuss it further.

Those strategies worked for many clients. Over 10 weeks this summer, immigration judges dismissed a record 9,000 deportation cases on the basis of the Pereira ruling. Instead of interpreting the ruling to only apply to situations like Pereira’s, some judges applied it to any removal proceeding paperwork missing a time and place. Zahedi says DHS rarely gives either.

ZAHEDI: In almost all cases, 99 percent of the cases, the dates and the times for these hearings is not set. It just says, “To be set.”

Sarah Pierce is an immigration policy analyst with the Migration Policy Institute. She says to stop even more cases from being thrown out, DHS began issuing bogus dates and times on notices to appear in court. Like weekends and midnight.

PIERCE: They did that as an attempt to try to, to make the notices appear valid, because in reality we don’t have sophisticated enough systems or communications between our agencies that work on this issue.

Having a deportation case terminated doesn’t give immigrants legal status. But it does give them more time to find a legal way to stay in the country before the government can pursue deportation again.  

But the Pereira frenzy wasn’t good for everyone. Jose Campa left Mexico on a tourist visa in 1996. Instead of leaving the U.S. when his visa expired, Campa stayed. This week, after a long legal battle, a judge granted him a green card.

CAMPA: Oh, it’s awesome. We couldn’t believe. It took so long!

Jose Campa’s immigration lawyer Monika Sud-Devaraj says the Pereira ruling almost ruined his chance to get a green card. Campa’s original 20-10 removal proceeding paperwork had a blank time and date.

MONIKA: The judge said I don’t have authority I don’t have jurisdiction, so I think I’m going to have to terminate this case, and I’m like whoa wait. We don’t want it terminated!

If the judge had thrown out the case, that would have undone a year’s worth of legal work, and Campa would have had to apply all over again. A ruling from the Board of Immigration Appeals prevented that from happening.

On August 31st, the board ruled that removal documents issued without a date and time were valid as long as DHS issued a subsequent notice filling them in.

That ruling ended the Pereira rush. Migration Policy’s Sarah Pierce says the board also ruled the Supreme Court’s decision only applies to calculating the 10 years for cancellation of removal. It doesn’t apply to all removal proceedings.

PIERCE: They distinguish that the Supreme Court had ruled on a very small issue, but the ruling had very large implication. And the BIA is saying that no, those large implications are not correct. This is still only applying to a small issue.

As of now, the government is only appealing 2,100 of the 9,000 cases dismissed after the Pereira ruling. And immigration lawyers have appealed the BIA’s decision to the 9th U.S. Circuit Court of Appeals, which could uphold or overturn it in the next few months.

Ultimately, this issue could end up back where it started: the Supreme Court.

Reporting for WORLD Radio, I’m Sarah Schweinsberg.

(AP Photo/Pablo Martinez Monsivais) Police office guards the main entrance to the Supreme Court in Washington, Tuesday, Oct. 9, 2018. 

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