Amicus Curiae Brief — Pereira v. Sessions, 138 S. Ct. 2105 (2018) (No. 17-459)

33

x Supreme Us.

FILED

| OCT 30 207

No. 17-459

—————— — —

IN THE

Supreme Court of the Anited States

WESCLEY FONSECA PEREIRA,

Petitioner,

V.

JEFFERSON B. SESSIONS, ILI, ATTORNEY GENERAL,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF FOR AMICUS CURIAE THE AMERICAN

IMMIGRATION LAWYERS ASSOCIATION IN

SUPPORT OF PETITIONER

MARK BARR BRADLEY N. GARCIA

LICHTER IMMIGRATION (Counsel of Record)

1601 Vine Street bgarcia@omm.com

Denver, CO 80206 JEREMY MALTBY

(303) 554-8400 O'MELVENY & MYERS LLP

1625 Eye Street, N.W.

Counsel for the American Washington, D.C. 20006

Immigration Lawyers .

Association (202) 383-5300

Counsel for Amicus Curiae

Sv TS a I GE NT TO TIES

i

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE ................. 1

INTRODUCTION AND SUMMARY OF THE

FIED cndvessccoviesicsonsinssatntscsicsentntcosqnessesss 2

I i lg aa ee oh ea ae a rebuluas dikodd 4

}. THE COURT SHOULD ACT TO

ADDRESS A WELL-ESTABLISHED

CIRCUIT SPLIT THAT WILL AFFECT

THOUSANDS OF IMMIGRANTG................. 4

A. The Decision Below Reinforces A

Well-Established Circuit Split

Regarding The Stop-Time Rule........... 4

B. The Question Presented Recurs

I i. icineianndeierasenivetbisnetseseen: 7

Il. ACCURATELY DETERMINING

ELIGIBILITY FOR CANCELLATION

OF REMOVAL IS EXCEPTIONALLY

TEMPUS EAANTS vsccossisconsspecsizedccdsensccosvenesssssecossens 8

A. Eligibility For Cancellation Of

Removal Is Deeply Important

And Life-Altering For

Noncitizens And Their Families ......... 9

1. Eligibility for cancellation

can mean the difference

between lawful permanent

residence status and

II cacvstivcicvessereccnsasssoeins 9

il

TABLE OF CONTENTS

(continued)

Page

2. Cancellation of removal

often provides the only

relief available for

noncitizens in removal

I vis ccnstxascapsinnenigaseaens 12

B. The Threshold For Eligibility For

Cancellation Of Removal Is High,

Ensuring That Only The Most

Deserving Noncitizens Are’

ie ae a ge Se TN BES gO A 13

lif. THE DECISION BELOW IS BASED

ON A CLEAR MISREADING OF THE

PLAIN TEXT OF THE INA...........00.scessseeee 17

IT ib bidda te Lin hivhdstee sayurkckindececwcaunnaacinatonitia 19

ili

TABLE OF AUTHORITIES

Page(s)

CASES

Bridges v. Wixon,

eS Ee ED on, co cnncccpundsasuvectssbertoess uaesedenes ll

Castillo v, Sessions,

693 F. App’x 647 (9th Cir. July 13,

a es csabubbnnet Fisieerennnpines ad Te taal BF s

Dababneh v. Gonzales,

O78 ek BOG CIE Cab: DOOD vocecsvecscssssececveresssessees 7

Delgadillo v. Carmichael,

BE Fe, I IED Doccscuvaccacsseasescecepissnscsecserscneunes 11

Fong Haw Tan v. Phelan,

Te Oe eM caxevesevkessadencecs duscuasstsesussedrebabiecs 10

Fong Yue Ting v. United States,

eek Se ee eee ery ava gies 10

Garcia-Ramirez v. Gonzales,

BOD We BOS COE Cae, BOOB) visiscssecsccsecssexescosscases 5

Gonzalez-Garcia v. Holder,

cg pf £m sR) & | error 5

Guamanrrigra v. Holder,

ee Ge Ce GE, RED cidecccdcscnneccniscscsconsiasees 5

Guaman- Yuqui v. Lynch,

ee te CN Gas OOD vi cesscieascastvcnccssoncetescess 5

Hernandez-Rubio v. U.S. Atty. Gen.,

615 F. App’x 933 (11th Cir. Sept. 16,

Holder v. Martinez Gutierrez,

ee I SD os csc aisniannrbenkatnnveversenensaaisnetviin 17

1V

TABLE OF AUTHORITIES

(continued)

Page(s)

ILN.S. v. St. Cyr,

rey SE ITED csichccdderesnvensucedsenasidssiccaan 8,13

In re Andazola-Rivas,

23 I. & N. Dec. 319 (BIA 2002)...........sccscessecceees 16

In re Monreal-Aguinaga,

23 I. & N. Dec. 56 (BIA 2001)..........0..cccsccceee 14, 16

In re Nolasco-Tofino,

221. & N. Dec. 632 (BIA 1999)................cccceseee 14

Jordan v. De George,

Bn a EIR Bs Sa AR aS ORR ORN AE spans 11

Matter of Camarillo,

Be ee ote I, OG CEs SPE Bei cick dccbincecececcenes 5, 7

Matter of Silva,

BE he Ree Os OO CA BOO cvidnssscnsicnncensesccnsccesas Y

Moscoso-Castellanos v. Lynch,

BOS FB TOTS eR Civ. BOULG). .vcscvcssccssccscccccecsccsss 5

Ng Fung Ho v. White,

I a oon ons ra gra vecnhanubdundunennaiedd 11

O’Garro v. U.S. Atty. Gen.,

605 F. App’x 951 (11th Cir. May 22,

Ordaz-Gonzalez v. Holder,

533 F. App’x 752 (9th Cir. July 17,

Orozco- Velasquez v. Lynch,

OT re Fe ee Cs NO wicsnnnsnecapcetineesscnsetinaas 5, 7

Vv

TABLE OF AUTHORITIES

(continued)

Page(s)

Padilla v. Kentucky,

ST ee WE CIT so ccc tinshnesonveeseeningebebinettitee 10

Scialabba v. Cuellar de Osorio,

ee ss ccnac nc cdegvupeupsutannveueennanet 17

Urbina v. Holder,

746 F.3G TOG (4ti Civ. BOVS). ...cccrccccccseccccess: ae 5

Wang v. Holder,

759 F.3d 670 (7th Cir. 2014)......... peo R aS Seon Sete 5

Zarbaelov v. Holder,

499 F. App’x 96 (2d Cir. Oct. 9, 2012) ..........008. 8

STATUTES

eee We PINT destnstinnbniniatsi sédicdiadnsvesiessdaanven 7

1996 Illegal Immigration Reform and

Immigrant Responsibility Act, Pub.

L. No. 104-208, 110 Stat. 3009

(Sa OIE Sata Se Rar anti Mean Goel ah eae CO a 13

ig Fave 2) ERMA Be ile i SaRRACRESRBee serer Pri tn)dNe= 13

ee Oe I acu ccuiisnaisinaavisnecissanisenpevadnies 13

8 U.S.C. § 1182(a)(9)(A)(GI)(D-ID oe eeeeeeeees 11

RE Fete eh Re IEEE binccavasissscsscickhnsesinseesnis ll

Be ese ME sesicancebaciuiceincech casdesnnitiixension 4,17

ee EE uiidesniuieebincatesenididckiniiistnipsnlisssssecknigeie 3

Be FE idteresistsivecissnap ncitsinsiaorerens 14

ii ccnsssescidisduntnaiicnsia 3, 15

vl

TABLE OF AUTHORITIES

(continued)

Page(s)

Uy OS oc sasnisensacionsevinsciioke 4

ee III. scccccecussuiuv oun secvesuantuisiaptaien 14

UE BOO ROIIIIY vices scssesesncrecscesesesoseen sess 4, 5,17

Be ie ie CED Sa cacvenieisetudecacbercibbiutaticerions 10, 14

acs TEED x cin cpcsaskscavecococeburscoerdamninnnstianneie 15

a! I acct da een aa canis ann emncaedianes sueeeien 10

Immigration Act of 1917, § 3, proviso 7,

a SI ic pvnccndwosccacecenscessesessiceecens 8

Immigration and Nationality Act of

Rg Eee ae eee 8

Victims of Trafficking and Violence

Protection Act of 2000, Pub. L. No.

106-386, 114 Stat. 1464 (2000)......................008 12

OTHER AUTHORITIES

Allison Brownell Tirres, Mercy in

Immigration Law, 2013 BYU L. Rev.

Fi RI ea el aS SC RE 8

AMERICAN IMMIGRATION COUNCIL,

AGGRAVATED FELONIES: AN

OVERVIEW (Dec. 16, 2016),

https://www.americanimmigrationco

uncil.org/research/aggravated-

a ssn spacdeltenmetaenensel 15

vii

TABLE OF AUTHORITIES

(continued)

Edward R. Grant, Laws of Intended

Consequences: ITRIRA and Other

Unsung Contributors to the Current

State of Immigration Litigation, 55

CATH. U. L. REV. 923 (2006).................:.

EXECUTIVE OFFICE OF IMMIGRATION

REVIEW, FY 2016 STATISTICS

YEARBOOK at N1 (Mar. 2016)................

H.R. Rep. No. 104-828, at 213 (1996).........

Hon. Dana Leigh Marks, Hon. Denise

Noonan Slavin, A View Through the

Looking Glass: How Crimes Appear

from the Immigration Court

Perspective, 39 FORDHAM URB, L.J.

Py Hee EE ntatiunnecesistveieiecedesesecsusecassecens

Kalina M., Brabeck et al., The

Psychosocial Impact of Detention

and Deportation on U.S. Migrant

Children and Families, 84 AM. J. OF

ORTHOPSYCHIATRY, 496 (2014)...............

Lisseth Rojas-Flores et al., Trauma and

Psychological Distress in Latino

Citizen Children Following Parental

Detention and Deportation, 9 PSYCH.

TRAUMA: THEORY, RESEARCH,

PRACTICE, & POLICY, 352 (2017) ............

Page(s)

pawubeceseia 16

eh: eee 12

vill

TABLE OF AUTHORITIES

(continued)

Page(s)

Luis H. Zayas & Laurie Cook Heffron,

Disrupting young lives: How

detention and deportation affect US-

born children of immigrants, AM.

PSYCH. ASSOC, (Nov. 2016) .......6ccceeseeeees Ges 12

Luis H. Zayas et al., The Distress of

Citizen Children with Detained and

Deported Parents, 24 J. OF CHILD &

FAMILY STUDIES, 3213 (Nov. 2015)........ Ree Petri 12

MARGARET MIKYUNG LEE,

CONGRESSIONAL RESEARCH SERVICE,

AN OVERVIEW OF JUDICIAL REVIEW

OF IMMIGRATION MATTERS at 3 (Sept.

11, 2013),

INTEREST OF THE AMICUS CURIAE'

The American Immigration Lawyers Associa-

tion (“AILA”) is a national association with more

than 13,000 members throughout the United States,

including lawyers and law school professors who

practice and teach in the field of immigration and

nationality law. AILA seeks to advance the admin-

istration of law pertaining to immigration, nationali-

ty, and naturalization; to cultivate the jurisprudence

of the immigration laws; to facilitate the administra-

tion of justice; and to elevate the standard of integri-

ty, honor, and courtesy of those appearing in a rep-

resentative capacity in immigration and naturaliza-

tion matters. AILA’s members practice regularly be-

fore the Department of Homeland Security (“DHS”),

immigration courts, and the Board of Immigration

Appeals (“BIA”), as well as before the United States

District Courts, Courts of Appeals, and the Supreme

Court of the United States.

AILA has a deep understanding of the signifi-

cant consequences the stop-time rule of the Immi-

gration Nationality Act (the “INA”) has fe adividu-

als placed in removal proceedings, and respectfully

submits this brief as amicus curiae to alert the Court

to the extreme practical importance of the question

presented and the severe inequity created by the

well-established circuit conflict over this issue.

1 Pursuant to Rule 37.6, no counsel for any party authored

this brief in whole or in part and no counsel or party made a

monetary contribution intended to fund the preparation or

submission of this brief. Pursuant to Rule 37.2(a), timely no-

tice was provided to counsel of record for all parties, and this

brief is accompanied by the written consent of all parties.

2

INTRODUCTION AND SUMMARY OF THE

ARGUMENT

The “stop-time” rule the First Circuit inter-

preted below determines whether many noncitizens

facing deportation after years of residence in the

United States are eligible for a discretionary form of

relief called “cancellation of removal.” As the peti-

tion details, there is a firmly-established conflict in

authority over the proper application of that rule,

and the issue recurs frequently.

Amicus submits this brief to demonstrate the

exceptional importance of correctly determining eli-

gibility to apply for cancellation of removal. The

stakes of that determination are extreme: Nonciti-

zens who receive cancellation are given status as

lawful permanent residents and put on the path to

citizenship; those denied it are removed from the

country, torn from their families, communities, and

livelihoods, and many are not permitted to even ap-

ply to return to the country for several years.

Further, cancellation of removal is the only

form of relief from removal available to many noncit-

izens, and it is open only to the most deserving of

applicants who can meet a demanding eligibility

threshold. To be eligible for cancellation of removal,

a noncitizen who is not a lawful permanent resident

must show that he is a person of “good moral charac-

ter”; that he has not been convicted of any of a broad

range of criminal offenses; that he has an immediate

family member who is a U.S. citizen or lawful per-

manent resident that would suffer “exceptional and

extremely unusual hardship” if he were deported;

and, finally, that he has maintained a ten-year peri-

3

od of continuous residence in the United States. 8

U.S.C. § 1229b(b)(1).?

Cancellation of removal is therefore the last,

best hope for the most deserving noncitizens seeking

to remain in the country with their family members.

Indeed, cancellation of removal is the only way those

family members—who are U.S. citizens or lawful

permanent residents—can be saved from extreme

hardship. Properly and consistently determining el-

igibility for that relief is therefore exceptionally im-

portant not just to the individuals who have lived in

this country for years as productive members of our

nation and our communities, but to their families as

well.

That eligibility for such vital relief currently

depends on an arbitrary matter of geography is in-

tolerable. Review is al] the more necessary because

the First Circuit’s reading of the statute is profound-

ly erroneous. Amicus therefore respectful!y urges

the Court to grant the petition to resolve the well-

established circuit conflict over the question pre-

sented.

2 Slightly less onerous requirements apply to lawful per-

manent residents seeking cancellation of removal. See 8 U.S.C.

§ 1229b.

4

ARGUMENT

I. THE COURT SHOULD ACT TO ADDRESS

A WELL-ESTABLISHED CIRCUIT SPLIT

THAT WILL AFFECT THOUSANDS OF

IMMIGRANTS

A. The Decision Below Reinforces A Well-

Established Circuit Split Regarding

The Stop-Time Rule

The First Circuit’s decision cements a well-

established circuit split concerning a matter of great

importance: How the government measures the re-

quired period of continuous residence a -noncitizen

must prove to be eligible for cancellation of removal.

As noted above, one eligibility requirement for

cancellation of removal is that a noncitizen must

have “been physically present in the United States

for a continuous period of not less than 10 years im-

mediately preceding the” cancellation application. 8

U.S.C. § 1229b(b)(1)(A). Under the stop-time rule,

the period of continuous residence ends upon service

of a specific document: a “notice to appear under sec-

tion 1229(a).” Jd. § 1229b(d){1). Section 1229(a), in

turn, defines a “notice to appear” as “written notice

... specifying” certain information, including the

“time and place at which the proceedings will be

held.” Jd. § 1229(a)(1). Thus, Congress provided

that once a noncitizen has a notice to appear that

describes the proceedings against him and sets a

date and time for such proceedings, his period of con-

tinuous residence is stopped.

The First Circuit below held that the govern-

ment can trigger the stop-time rule by serving a doc-

ument labeled “notice to appear,” even if that docu-

5

ment lacks the statutorily required components of a

“notice to appear under section 1229(a).” See Pet.

App. 2a. The First Circuit joined five other circuits

in deferring to an interpretation of § 1229b(d)(1) by

the Board of Immigration Appeals. See Matter of

Camarillo, 25 I. & N. Dec. 644 (BIA 2011); Moscoso-

Castellanos v. Lynch, 803 F.3d 1079 (9th Cir. 2015);

Guaman-Yuqui v. Lynch, 786 F.3d 235 (2d Cir.

2015); Gonzalez-Garcia v. Holder, 770 F.3d 431 (6th

Cir. 2014); Wang v. Holder, 759 F.3d 670 (7th Cir.

2014); Urbina v. Holder, 745 F.3d 736 (4th Cir.

2014). This deference appears outcome determina-

tive: Prior to Camarillo, two courts of appeals cor-

rectly determined that the stop-time rule would ap-

ply only once a noncitizen received a notice to appear

that includes the statutorily mandated information,

see Guamanrrigra v. Holder, 670 F.3d 404, 410-11

(2d Cir. 2012); Garcia-Ramirez v. Gonzales, 423 F.3d

935, 937 n.3 (9th Cir. 2005), and only reversed

course once the BIA adopted the opposite interpreta-

tion.

In direct and explicit conflict with those deci-

sions, the Third Circuit has held that, under the

plain text of the INA, the stop-time rule is only trig-

gered by a notice to appear that is “in conformance

with 8 U.S.C. § 1229(a)”—that is, one that notes the

time and place at which the removal proceedings will

take place, along with the other statutorily mandat-

ed information that is required for a document to be

a “notice to appear under section 1229(a).” Orozco-

Velasquez v. Lynch, 817 F.3d 78, 82 (3d Cir. 2016).

The Third Circuit rejected the BLA’s conclusion to

the contrary because it “conflicts with the

6

INA’s plain text, [and therefore] it is not entitled

to Chevron deference.” Id. at 81—82.

In the case below, the First Circuit considered

and explicitly disagreed with the Third Circuit's rea-

soning. See Pet. App. 7a-—8a. The split in authority

is thus openly acknowledged and firmly entrenched.

This Court should not allow the meaning of a

federal statute of this importance to turn on some-

thing as arbitrary as geography. The present case is

illustrative: Wescley Fonseca Pereira remained in

the country after his tourist visa expired in 2000,

eventually settling in Martha’s Vineyard,.where he

has lived for over a decade with his wife and U.S.-

citizen children and is a respected member of the

community. See Pet. 4. Less than six years after his

visa expired, he was served with a notice lacking the

statutorily mandated date and time. It was not until

2013, when he had been in the United States for

over ten years, that Pereira was detained and placed

in removal proceedings after being pulled over for

failing to use his headlights.* See Pet. 13. When he

then applied for cancellation of removal—at this

point having been in the United States continuously

for thirteen years since his visa expired—his appli-

cation was denied based on the contention that the

deficient 2006 notice to appear stopped the clock on

his period of continuous residence. /d. at 13-14.

Now imagine Pereira had decided to settle

with his family not in Martha’s Vineyard, but in

———

3 DHS had mailed a notice to appear with date and time in

2007 to the incorrect address. As a result, Pereira did not re-

ceive any notice of proceedings against him after the deficient

notice in 2006.

7

Stone Harbor, New Jersey, a different east coast

beach community. There, under the Third Circuit's

decision in Orozco- Velasquez, the continuous resi-

dence clock would not have been stopped by the defi-

cient 2006 notice, and Pereira would have been eligi-

ble for cancellation of removal. 817 F.3d 78 at 71-82.

Leaving the fate of thousands of noncitizens and

their families up to an arbitrary matter of geography

is intolerable, and this Court should intervene.

B. The Question Presented Recurs Fre-

quently

Amicus’s experience representing thousands

of noncitizen clients reveals that the government’s

use of notice lacking the statutorily required date

and time is common practice. In fact, as the BIA it-

self has noted, “DHS frequently serves” purported

notices to appear without specifying the date and

time of any removal hearing. Matter of Camarillo,

25 I. & N. Dec. at 648 (quoting Dababneh v. Gonza-

les, 471 F.3d 806, 809 (7th Cir. 2006)).

As this case well demonstrates, it can be years

from the time a noncitizen receives a deficient notice

until he actually receives a hearing date. Unlike in

the criminal context, where the Speedy Trial Act en-

sures prompt prosecution of charges, see 18 U.S.C.

§§ 3161-3174, and unlike in litigation governed by

the Federal Rules of Civil Procedure, immigration

law provides no assurance that the government will

carry removal proceedings forward expeditiously.

The majority interpretation of the stop-time rule

compounds that problem by removing an incentive to

even calendar an initial hearing within a reasonable

amount of time.

9

A survey of recent judicial decisions confirms

that this issue arises frequently: As the petition for

certiorari notes, “All seven of [the published deci-

sions in the courts of appeals concerning this issue}

have come in the last three years alone.” Pet. Br. at

3. Several unpublished or lower court decisions have

addressed the impact of deficient notices to appear

as well. See Castillo v. Sessions, 693 F. App’x 647,

648 (9th Cir. July 13, 2017); Hernandez-Rubio v.

U.S. Atty. Gen., 615 F. App’x 933, 934 (11th Cir.

Sept. 16, 2015); O’'Garro v. U.S. Atty. Gen., 605 F.

App’x 951, 953 (11th Cir. May 22, 2015); Ordaz-

Gonzalez v. Holder, 533 F. App’x 752, 754 (9th Cir.

July 17, 2013); Zarbaelov v. Holder, 499 F. App’x 96,

98 (2d Cir. Oct. 9, 2012).

Il. ACCURATELY DETERMINING ELIGIBIL-

ITY FOR CANCELLATION OF REMOVAL

IS EXCEPTIONALLY IMPORTANT

“Deportation relief, like deportation itself, has

deep roots.” Allison Brownell Tirres, Mercy in Immi-

gration Law, 2013 BYU L. Rev. 1563, 1583 (2013).

For more than a century, discretionary relief from

removal has been an essential part of our immigra-

tion system, allowing the government to ensure de-

serving individuals are not removed. See, e.g., Im-

migration Act of 1917, § 3, proviso 7, ch. 29, 39 Stat.

874, 878 (“[A]liens returning after a temporary ab-

sence to an unrelinquished United States domicile of

seven consecutive years may be admitted in the dis-

cretion of the Secretary of Labor, and under such

conditions as he may prescribe....”); .N.S. v. St. Cyr,

533 U.S. 289, 294 (2001) (noting that this provision

also provides relief in deportation proceedings), Im-

migration and Nationality Act of 1952, 8 U.S.C.

9

§ 1182(c) (granting the Attorney General broad dis-

cretion to admit excludable noncitizens); Matter of

Silva, 16 1. & N. Dec. 26, 30 (BIA 1976) (applying

that provision to deportation proceedings as well).

Fairly determining eligibility for the particu.

lar form of relief at issue here—cancellation of re-

moval—has deep practical importance, since qualify-

ing for cancellation of removal can mean the differ-

ence between deportation and a path to citizenship

for the noncitizen, and the difference between stabil-

ity or exceptional hardship for their U.S. citizen or

lawful permanent resident family members. This

vital form of relief already is open only to the most

deserving applicants, particularly as the eligibility

standards for cancellation of removal have become

more stringent. The difficulty of meeting those cri-

teria means that reversing the First Circuit’s misin-

terpretation of the stop-time rule would not result in

a windfall to noncitizens.

A. Eligibility For Cancellation Of Removal

Is Deeply Important And Life-Altering

For Noncitizens And Their Families

l. Eligibility for cancellation can_mean the

difference between lawful permanent

residence status and deportation

The benefits of cancellation of removal are

immense. Beyond the obvious fact that the individ-

ual will not be deported, receiving cancellation of

removal can eventually lead to citizenship. If the

noncitizen is eligible to apply and is granted cancel.

lation of removal, the noncitizen will receive lawful

permanent residence (commonly known as a “green

card”) and can apply for U.S. citizenship after at

10

least five years. 8 U.S.C. § 1427. The threshold for

eligibility is high, but a significant number of noncit-

izens actually obtain cancellation of removal] each

year. Although the INA (8 U.S.C. § 1229b(e)(1)) al-

lows only 4,000 cancellations of removal per year,

immigration courts granted cancellation of removal

in 3,358 cases in fiscal year 2016, 3,510 cases in fis-

cal year 2015, and 3,474 cases in fiscal year 2014.

See EXECUTIVE OFFICE OF IMMIGRATION REVIEW, FY

2016 STATISTICS YEARBOOK at N1 (Mar. 2016). For

over three thousand immigrants each year, then, a

cancellation determination allows them to remain in

the United States and avoid uprooting their lives.

The consequence of deeming an individual

who would otherwise receive cancellation ineligible

on the basis of the stop-time rule is, of course, dire.

Deportation is a harsh consequence that should be

limited to only those noncitizens Congress clearly

intended to be subject to removal—indeed, in the

context of cancellation of removal, deportation is a

consequence that by definition imposes extraordi-

nary harms on not just noncitizens petitioning for

relief, but also their U.S. citizen or lawful permanent

resident relatives. Because “deportation is a drastic

measure and at times the equivalent of banishment

or exile,” the Court has noted that it “will not as-

sume that Congress meant to trench on [a nonciti-

zen's] freedom beyond that which is required by the

narrowest of several possible meanings of [statutory

language].” Fong Haw Tan v. Phelan, 333 U.S. 6, 10

(1948); see also Padilla v. Kentucky, 559 U.S. 356,

365 (2010) (“We have long recognized that deporta-

tion is a particularly severe ‘penalty” (citing Fong

Yue Ting v. United States, 149 U.S. 698, 740 (1893));

11

Jordan v. De George, 341 U.S. 223, 243 (1951) (Jack-

son, J., dissenting) (removal means “a life sentence

of exile from what has become home, of separation

from his established means oi livelihood for himself

and his family of American citizens”); Delgadillo v.

Carmichael, 332 U.S. 388, 391 (1947) (“Deportation

can be the equivalent of banishment or exile.”);

Bridges v. Wixon, 326 U.S. 135, 147 (1945)

(“[A]lthough deportation technically is not criminal

punishment, it may nevertheless visit as great a

hardship as the deprivation of the right to pursue a

vocation or a calling”); Ng Fung Ho v. White, 259

U.S. 276, 284 (1922) (noting that deportation “may

result also in loss of both property and life, or of al]

that makes life worth living”).

The effects of deportation in this circumstance

are long-lasting: For most unsuccessful! applicants

for cancellation of removal, the path back to the

United States is strewn with obstacles, some requir-

ing many years outside the United States before

they can be reunited with their family members.

See, e.g., 8 U.S.C. § 1182(a)(9)(A)GI(D-dD (barring

any noncitizen who “has been ordered removed” from

being admitted to the United States “within 10 years

of the date of such alien’s departure or removal”); 8

U.S.C. § 1182(a)(9(C)\@UD (permanently barring

any noncitizen “who enters or attempts to reenter

the United States without being admitted” after be-

ing ordered removed). And deportation leads to dire

consequences for the noncitizen’s U.S. citizen or law-

ful permanent resident family members, who are

forced to choose between two bad options: staying

behind without their family member, who is possibly

the breadwinner or primary caregiver, or accompa-

12

nying their family member to a foreign country

where they may have no family or community ties.

See, e.g., Luis H. Zayas & Laurie Cook Heffron, Dis-

rupting young lives: How detention and deportation

affect US-born children of immigrants, AM. PSYCH.

Assoc. (Nov. 2016); Lisseth Rojas-Flores et al.,

Trauma and Psychological Distress in Latino Citizen

Children Following Parental Detention and Deporta-

tion, 9 PSYCH. TRAUMA: THEORY, RESEARCH, PRAC.

TICE, & POLICY, 352, 352-61 (2017); Luis H. Zayas et

al., The Distress of Citizen Children with Detained

and Deported Parents, 24 J. OF CHILD & FAMILY

STUDIES, 3213, 3213-23 (Nov. 2015); Kalina M.

Brabeck et al., The Psychosocial Impact of Detention

and Deportation on U.S. Migrant Children and Fam-

ilies, 84 AM. J. OF ORTHOPSYCHIATRY, 496-505 waniod

ai aes cceadneiae tom porns nna

in apres poe om

Today, cancellation of removal is often the on-

ly form of relief available to those in removal pro-

ceedings; there are very few additional ways that

otherwise-removable noncitizens can remain in the

country. Of those few avenues available, most of

these forms of relief are available in particularized

situations that exclude many noncitizens from eligi-

bility.

For example, so-called T and U visas are a

narrow form of relief available specifically for noncit-

izens who are victims of human trafficking or crimi-

nal activities, respectively. Victims of Trafficking

and Violence Protection Act of 2000, Pub. L. No. 106-

386, 114 Stat. 1464, 1477-80 (2000). Making out a

13

claim for asylum also requires specific circumstances

that preclude many noncitizens from eligibility: Asy-

lum claims must be made within one year of entry, 8

U.S.C, § 1158(a)(2)(B), and applicants must demon-

strate they have a “well-founded fear of persecution

on account of race, religion, nationality, membership

in a particular social group, or political opinion” if

forced to return. 7d. § 1101(a)(42). Notably, neither

T and U visas nor asylum helps to protect people on

account of deep family connections in the United

States, the motivating rationale behind cancellation

of removal.

As a result of these limits, cancellation of re-

moval is the only form of relief available to many

immigrants who seek to remain in the United

States.

B. The Threshold For Eligibility For Can-

cellation Of Removal Is High, Ensuring

That Only The Most Deserving Nonciti-

zens Are Eligible

The threshold for eligibility for cancellation of

removal was heightened considerably by the 1996

Illegal Immigration Reform and Immigrant Respon-

sibility Act (ITRIRA), Pub. L. No. 104-208, 110 Stat.

3009 (1996). IIRIRA “narrowed the forms of re-

lief... that may be applied for as a defense to re-

moval in immigration court.” Edward R. Grant,

Laws of Intended Consequences: IIRIRA and Other

Unsung Contributors to the Current State of Immi-

gration Litigation, 55 CATH. U. L. REV. 923, 933

(2006); see also St. Cyr, 533 U.S. at 297 (describing

how IIRIRA restricted the availability of discretion-

ary relief to noncitizens in removal proceedings).

14

ITIRIRA repealed a prior form of relief called

“suspension of deportation” and replaced it with can-

cellation of removal, imposing an increased continu-

ous residence requirement and increased hardship

standard in the process. Suspension of deportation

had a seven-year continuous presence requirement

and a standard of “extreme hardship” that could in-

clude hardship to the noncitizen himself. See IIRI-

RA § 304(a)(3), 8 U.S.C. § 1229b(a)-(b); see also In re

Monreal-Aguinaga, 23 I. & N. Dec. 56, 64-65 (BIA

2001); In re Nolasco-Tofino, 22 I, & N. Dec. 632, 641

(BIA 1999). Cancellation of removal requires ten

years of continuous residence, and the new hardship

standard requires a showing of “exceptional and ex-

tremely unusual hardship,” not to the noncitizen

himself, but to an immediate family member (not in-

cluding a sibling) who must be a United States citi-

zen or lawful permanent resident. 8 U.S.C.

§ 1229b(b)(1)(D).

As noted above, IIRIRA also limited the num-

ber of noncitizens who could be granted this newly

restricted form of relief, providing that the govern-

ment “may not cancel the removal. . . of a total of

more than 4,000 aliens in any fiscal year.” 8 U.S.C,

§ 1229b(e)(1). ITRIRA also narrowed judicial review

of immigration decisions, repealing provisions that

had allowed noncitizens in custody to seek review of

a deportation order in district court: Now, “a court

cannot review the denial of most types of relief from

removal that are granted at the discretion of the

immigration officer or immigration judge, including

... cancellation of removal.” MARGARET MIKYUNG

LEE, CONGRESSIONAL RESEARCH SERVICE, AN OVER:

VIEW OF JUDICIAL REVIEW OF IMMIGRATION MATTERS

15

at 3 (Sept. 11, 2013),

htts://fas.org/sgp/crs/homesec/R4 3226. pdf; see 8

U.S.C. § 1252(a)(2).

All told, to be eligible for cancellation of re-

moval, a noncitizen who is not a lawful permanent

resident must have been physically present in the

United States for a continuous period of not less

than 10 years; must have been a person of “good

moral character” during such period; must not have

been convicted of certain criminal offenses, including

an aggravated felony; and also must establish “ex-

ceptional and extremely unusual hardship” to a fam-

ily member who is a U.S. citizen or lawful perma-

nent resident. 8 U.S.C. § 1229b(b)(1).

Experience has demonstrated just how stren-

uous these statutory requirements are to satisfy.

For example, many noncitizens are disqualified from

eligibility for cancellation of removal based on rela-

tively minor past criminal offenses. Even noncitizens

who are lawful permanent residents are ineligible

for cancellation if they have been convicted of an

“aggravated felony,” a category that in fact sweeps in

many “non-violent, fairly trivial misdemeanors.”

Hon. Dana Leigh Marks, Hon. Denise Noonan Slav-

in, A View Through the Looking Glass: How Crimes

Appear from the Immigration Court Perspective, 39

FORDHAM URB. L.J. 91, 92 (2011); see also AMERICAN

IMMIGRATION COUNCIL, AGGRAVATED FELONIES: AN

OVERVIEW (Dec. 16, 2016),

https://www.americanimmigrationcouncil.org/researc

h/aggravated-felonies-overview (noting that “an ‘ag-

gravated felony’ does not require the crime to be ‘ag-

gravated’ or a ‘felony,” but instead “includes many

nonviolent and seemingly minor offenses”). And

16

noncitizens who are not lawful permanent residents

are rendered ineligible by an even broader range of

criminal offenses. 8 U.S.C. § 1229b(b)(1)(C).

The requisite “hardship” showing is also ex-

ceedingly demanding. As interpreted by the BIA,

exceptional and extremely unusual hardship re-

quires that hardship “to the alien’s relatives .. .

must be ‘substantially’ beyond the ordinary hardship

that would be expected when a close family member

leaves this country.” Jn re Monreal-Aguinaga, 23 I.

& N. Dec. at 62 (quoting H.R. Rep. No. 104-828, at

213 (1996)). The BIA has emphasized that this

standard of hardship “is significantly more burden-

some than the former ‘extreme hardship’ standard,”

and adjudicators have declined to find requisite

hardship in a number of sympathetic situations. Jn

re Andazola-Rivas, 23 I. & N. Dec. 319, 322 (BIA

2002).

In short, the only individuals for whom the

stop-time rule makes a difference are those, like Mr.

Pereira, who are the most deserving. Pet. at 16. For

many of those individuals, cancellation is their only

realistic chance at securing relief from removal. The

question presented therefore governs whether lawful

residents and citizens of this country are going to

lose loved ones who have lived in this country for

over a decade based on an incorrect interpretation of

a statute. And correcting the widespread misappli-

cation of the stop-time rule will not result in a wind-

fall for immigrants—it will merely ensure the most

deserving have an opportunity to make their case for

relief. This Court should grant certiorari to correct

the clear misreading of the INA perpetuated by the

decision below.

17

Ill. THE DECISION BELOW IS BASED ON A

CLEAR MISREADING OF THE PLAIN

TEXT OF THE INA

There are many areas of legitimate complexity

and ambiguity in the statutory labyrinth of our

country’s immigration scheme. See, e.g., Scialabba

v. Cuellar de Osorio, 134 S. Ct. 2191, 2194 (2014)

(finding ambiguity regarding whether BIA should

permit the issuance of visas for adults who initially

qualified for visas as children but “aged out” under

§ 1153(h)(3)); Holder v. Martinez Gutierrez, 566 U.S.

583, 590 (2012) (finding ambiguity regarding wheth-

er BIA should impute parent’s years of continuous

residence on child under § 1229b(a)). The issue be-

fore the Court here, however, is simply not one of

them.

As the petition details, the question of statu-

tory interpretation at issue here is straightforward:

Whether the government can trigger the stop-time

rule, cutting off a noncitizen’s period of continuous

residence, by serving a “notice to appear under sec-

tion 1229(a),” 8 U.S.C. § 1229b(d)(1), that lacks sec-

tion 1229(a)’s statutorily mandated definition of

what constitutes a notice to appear. The plain text

of § 1229b(d)(1) provides a clear answer: The gov-

ernment can only effectively trigger the stop-time

rule by serving a “notice to appear under section

1229(a).” Id. Section 1229(a) defines a “notice to

appear” as “written notice .. . specifying” certain in-

formation, including the “time and place at which

the proceedings will be held.” 8 U.S.C. § 1229(a)(1).

The BIA’s clumsy attempt to twist this clear

statutory mandate into ambiguity is erroneous, and

the First Circuit’s deference to this misreading of the

18

plain text is misguided. The government's interpre-

tation reads the “specifying” clause out of the stat-

ute, and necessarily means that a “written notice” of

anything or nothing at all would qualify as a “notice

to appear under section 1229(a).” In response to the

Third Circuit’s observation of those absurd implica-

tions, the First Circuit suggested that some of the

information “specified” in section 1229(a) might be

required, just not the date and time of the removal

hearing. Pet. App. 8a-9an.5. But there is no textual

basis whatsoever for that suggestion; the “specify-

ing” clause either has force or not, and both basic

principles of statutory interpretation and common

sense dictate that it does.

The government's reading also creates per-

verse incentives: If the government can stop the

clock on the continuous residence requirement by

sending a document without a hearing date, it re-

duces the imperative to calendar matters and move

the process along. That incentive to delay is espe-

cially concerning in light of the absence of any legal

requirement ensuring prompt proceedings. Supra at

7-8.

The government's position disregards basic

principles of statutory interpretation, with signifi-

cant practical consequences for thousands of nonciti-

zens, their families, and their communities. This

Court should intervene to ensure that the fate of

thousands of noncitizens and their families is not left

to an arbitrary matter of geography, and reverse the

decision below.

19

CONCLUSION

For all these reasons, as well as those pre-

sented in the petition for certiorari, the petition

should be granted.

Respectfully submitted,

MARK BARR BRADLEY N. GARCIA

LICHTER IMMIGRATION (Counsel of Record)

1601 Vine Street bgarcia@omm.com

Denver, CO 80206 JEREMY MALTBY

(303) 554-8400 O'MELVENY & MYERS LLP

: 1625 Eye Street, N.W.

Counsel for the American Wghinguon, D.C. 2000

A er (202) 383-5300

ssoctation

Counsel for Amicus Curiae

October 30, 2017