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Pereira v. Sessions

United States Court of Appeals, First Circuit

July 31, 2017

WESCLEY FONSECA PEREIRA, Petitioner,
v.
JEFFERSON B. SESSIONS III, [*] ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

         PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

          Jeffrey B. Rubin, with whom Rubin Pomerleau P.C. was on brief, for petitioner.

          Sarah K. Pergolizzi, Trial Attorney, Office of Immigration Litigation, with whom Bejamin C. Mizer, Acting Assistant Attorney General, Civil Division, Kohsei Ugumori, Senior Litigation Counsel, Office of Immigration Litigation, and Jesse D. Lorenz, Trial Attorney, Office of Immigration Litigation, were on brief, for respondent.

          Before Lynch, Lipez, and Thompson, Circuit Judges.

          LIPEZ, Circuit Judge.

         The Immigration and Nationality Act ("INA") gives the Attorney General discretion to cancel the removal of a non-permanent resident alien if the alien meets certain criteria, including ten years of continuous physical presence in the United States. 8 U.S.C. § 1229b(b)(1). Under the "stop-time" rule, the alien's period of continuous physical presence ends "when the alien is served a notice to appear under section 1229(a)" of the INA. Id. § 1229b(d)(1). In this case, we must decide whether a notice to appear that does not contain the date and time of the alien's initial hearing is nonetheless effective to end the alien's period of continuous physical presence. The Board of Immigration Appeals ("BIA") answered this question affirmatively in Matter of Camarillo, 25 I. & N. Dec. 644 (B.I.A. 2011). The BIA applied that rule in this case.

         Joining the majority of circuit courts to address this issue, we conclude that the BIA's decision in Camarillo is entitled to Chevron deference. We deny the petition for review.

         I.

         Wescley Fonseca Pereira ("Pereira"), a native and citizen of Brazil, was admitted to the United States in June 2000 as a non-immigrant visitor authorized to stay until December 21, 2000. He overstayed his visa. In May 2006, less than six years after Pereira entered the country, the Department of Homeland Security ("DHS") personally served him with a notice to appear. The notice did not specify the date and time of his initial removal hearing, but instead ordered him to appear before an Immigration Judge ("IJ") in Boston "on a date to be set at a time to be set." More than a year later, DHS filed the notice to appear with the immigration court, and the court mailed Pereira a notice setting his initial removal hearing for October 31, 2007 at 9:30 A.M. Because the notice was sent to Pereira's street address on Martha's Vineyard rather than his post office box, however, he never received it.[1] When Pereira failed to appear at the hearing, an IJ ordered him removed in absentia.

         Pereira was not removed, however, and he remained in the country. In March 2013, more than five years later, Pereira was arrested for a motor vehicle violation and detained by DHS. Pereira retained an attorney, who filed a motion to reopen his removal proceedings, claiming that Pereira had never received the October 2007 hearing notice. After an IJ allowed the motion, Pereira conceded removability, but sought relief in the form of cancellation of removal under 8 U.S.C. § 1229b(b)(1).[2] Arguing that the notice to appear was defective because it did not include the date and time of his hearing, Pereira contended that it had not "stopped" the continuous residency clock. He asserted that he had instead continued to accrue time for the purpose of § 1229b(b)(1) until he received a notice of the hearing that occurred after his case was reopened in 2013.

         The IJ pretermitted Pereira's application for cancellation of removal, finding that Pereira could not establish the requisite ten years of continuous physical presence, and ordered him removed. Pereira appealed to the BIA. On appeal, he conceded that Camarillo foreclosed his argument that the stop-time rule did not cut off his period of continuous physical presence until 2013, but argued that Camarillo should be reconsidered and overruled. The BIA declined to reconsider Camarillo and affirmed the IJ's decision, holding that the notice to appear was effective under the stop-time rule despite the missing details concerning the date and time of his hearing.[3] Pereira timely filed a petition for review with this court.

         II.

         A. Standard of Review

         Because "the BIA adopted and affirmed the IJ's ruling, and discussed some of the bases for the IJ's opinion, we review both the BIA's and IJ's opinions." Idy v. Holder, 674 F.3d 111, 117 (1st Cir. 2012). Where, as here, the case presents a question of statutory interpretation, we review the BIA's legal conclusions de novo, but give "appropriate deference to the agency's interpretation of the underlying statute in accordance with administrative law principles." Id. (quoting Gailius v. INS, 147 F.3d 34, 43 (1st Cir. 1998)). Under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., we first look to the statutory text to ascertain whether "Congress has directly spoken to the precise question at issue." 467 U.S. 837, 842 (1984). If the statute addresses the question at issue and is clear in its meaning, then we "must give effect to the unambiguously expressed intent of Congress." Id. at 842-43. If, however, the statute is silent or ambiguous, we determine "whether the agency's answer is based on a permissible construction of the statute." Id. at 843. We defer to an agency's construction of an ambiguous statutory provision "unless it is 'arbitrary, capricious, or manifestly contrary to the statute.'" Saysana v. Gillen, 590 F.3d 7, 13 (1st Cir. 2009) (quoting Chevron, 467 U.S. at 844).

         B. Analysis

         1. Chevron Step One: ...


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