Fonseca Pereira v. Sessions (17-459)

argument 17-459

Fonseca Pereira v. Sessions

Supreme Court of the United States 54 min 6 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the central issue in Pereira v. Sessions regarding the stop‑time rule?

John G. Roberts 0:00

We'll hear argument next in Case 17-459,

Matthew Zimmer 0:04

Pereira v. Sessions. Mr. Zimmer. Thank you, Mr. Chief Justice, and may it please the Court. The stop-time rule at issue in this case specifies exactly what the government must do in order to end an immigrant's period of continuous presence. The government must serve a notice to appear under Section 1229A. And as the name notice to appear suggests, the government cannot serve a notice to appear without telling an immigrant when and where to appear. Specifically, Section 1229A defines a notice to appear as notice that provides specific information, including the time and place at which proceedings will be held. Notice that lacks that required information and does not tell an immigrant when and where to appear is not a notice to appear under Section 1229A and does not trigger the stop time rule.

Anthony M. Kennedy 0:50

Mr. Zimmer, you just said defines the notice of appear. Why do you think that those ten requirements of what have to be in a notice to appear are define a notice to appear. You could imagine a case where somebody says, well, look, Requirement 7 isn't in the notice. That was a mistake. So it's a flawed notice to appear, but it's still a notice to appear. It doesn't become not a notice to appear because there's a flaw in it.

Matthew Zimmer 1:16

So the answer to that, Justice Kagan, is the way that the statute is written. And because Section 1229A doesn't just state what a notice to appear shall contain, it does define what a notice to appear is because of the language Congress used. And it's specifically the phrase in this section referred to as a notice to appear. And that is definitional language. It is definitional language that Congress uses routinely throughout the U.S. Code to give substantive meaning to specific terms. And we give a number of examples of this on page four of the reply brief, including one particularly clear example where Congress actually referred to this language as definitional. And so unlike a provision that just states what a notice to appear shall contain,

Matthew Zimmer 1:59

This provision states that the document in this section referred to as a notice to appear is written notice that specifies the required information.

Unknown 2:06

And if anyone on the list, anyone is left out, then it's not a notice to appear.

Matthew Zimmer 2:12

Well, yes, that's right, Justice Ginsburg. But I think it's important to recognize that most of the information on that list will not vary from case to case. It's standard information that's simply on the notice to appear form. And so what we're really talking about in this case are really only two types of information — It's the charges, the factual and legal charges against the immigrant, and the time and place of the hearing. And so those are really the two pieces of information that are really required, that there's any chance would ever be omitted. And it's entirely reasonable that Congress insisted that those two pieces of information be included in a notice in order to stop the time, because those are the two pieces of information that show that the government is serious, is committed to going forward with an actual removal proceeding.

Matthew Zimmer 2:56

And indeed, The fact that those two pieces of information are acquired is supported by the only reason that's identified in the legislative history for which Congress actually enacted this rule. Prior to 1996, there was no stop-time rule, and immigrants continued to accrue permanent residence or permanent presence all the way up until the point that they were actually removed from the country.

Samuel A. Alito 3:17

Do you think that your interpretation is so clear that it wouldn't be necessary for us to get beyond step one of Chevron?

Matthew Zimmer 3:25

Yes.

Samuel A. Alito 3:26

Why is that so?

Matthew Zimmer 3:27

So it's so because of the definitional language in Section 1229. I

Samuel A. Alito 3:31

don't see definitional language in there. Where's the definitional language?

Matthew Zimmer 3:35

Justice Alito, it's the in this section referred to as language. And that is language that, again, is used throughout the U.S. Code in order to define terms. When Congress states that the document in this section referred to as a notice to appear is written notice that specifies that information, that means that if the government serves written notice that does not specify that information, it has not served a notice to appear.