Tuesday, July 10, 2018

Pereira v. Sessions: A Jurisdictional Surprise for Immigration Courts


On June 21, 2018, the U.S. Supreme Court issued a bombshell opinion regarding immigration court procedure: Pereira v. Sessions.

On its face, the case is a boon for certain noncitizens seeking relief from deportation. Yet, as I explore in this just-posted essay to SSRN, Pereira’s implications are far greater.

Although the Court’s opinion never mentions jurisdiction, Pereira necessarily means that immigration courts lack subject-matter jurisdiction over virtually every case filed in the last three years, plus an unknown number of earlier-filed cases. Here's why.

The Court’s opinion in Pereira, authored by Justice Sonia Sotomayor, held that “A notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under section 1229(a).’” Shockingly, “almost 100 percent” of cases filed in the last three years were initiated by notice-to-appear documents that omitted the time and place of the proceeding.

How does that relate to jurisdiction? Under the regulations establishing and delimiting the authority of immigration courts, 8 CFR 1003.14(a), “Jurisdiction vests … when a charging document is filed with the Immigration Court[.]” “Charging document” is defined by 8 CFR 1003.13 as the “written instrument which initiates a proceeding before an Immigration Judge … a Notice to Appear.”

If, as Pereira clearly states, a document isn’t a notice to appear if it doesn’t have a time and place on it, then it cannot be a charging document. And, without a valid charging document, jurisdiction never vests in the immigration court.

Since subject matter jurisdiction can never be waived, each case currently pending that was initiated by an NTA lacking a time-and-place designation must be dismissed.

In the final portion of the essay, I argue that immigration courts should recognize that re-filed cases demand an immigrant-centered approach. Noncitizens should have the chance to re-litigate issues lost in the first litigation—but should be permitted to keep their wins. The government, in contrast, should be bound by its losses. This approach protects noncitizens from bearing the burden of the government’s choice to wander from the law’s requirements.



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