Pereira v. Sessions and the Right to Seek Voluntary Departure: Another Reason for the Wide Applicability of Pereira without the Need to Decide the Subject-Matter Jurisdiction Issue

Prof. Geoffrey A. Hoffman, Aug. 27, 2018 - "Section 240B of the Immigration and Nationality Act (INA) provides for the right of respondents in removal proceedings to seek voluntary departure “at the conclusion” of removal proceedings.  This is called post-hearing or at-the-conclusion voluntary departure.  The respondent is required to show several things. Among the several requirements for this type of relief is that the respondent show that he or she “has been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served under section 239(a).” (emphasis added). As we can all agree, Pereira v. Sessions held that a deficient NTA (without the time and date) as required by the statute was insufficient to trigger the stop-time rule for purposes of cancellation of removal under INA 240A(b).  Given this clear and unequivocal holding, there can be no question that the holding must be applied to any “stop-time” type restrictions against eligibility for relief as enumerated in the INA. It cannot just be applied to stop-time issues related just to cancellation of removal under INA 240A.

Given this important premise, anyone who was handed an insufficient NTA and eventually subjected to “removal proceedings” would have been foreclosed from various forms of relief, not just cancellation of removal for non-lawful permanent residents (LPRs). In Pereira’s case the relevant section was INA 240A(b) that related to the 10-year period for cancellation. But, if the person were a lawful permanent resident, then he or she could have been subject to another potential stop-time issue with respect to INA 240A(a) for LPRs and the NTA could have cut off the 7 year period in any status as required for eligibility for LPR cancellation . (Note, the 5 year rule in LPR status is by statute not subject to stop-time rule.)

Similarly, everyone who was issued a defective NTA would have been pretermitted under Pereira from applying for “at the conclusion” voluntary departure since they would have been unable to show that they were physically present here in the US for at least one year immediately preceding the date “the notice to appear was served under section 239(a).”  In other words, the triggering event which would have enabled the respondent to show that he or she was present in the U.S. for the requisite period of time could not be said to have happened under Pereira. There is no need to get into whether “jurisdiction” vested with the immigration court or not. Rather, as Pereira clearly held there was never a valid NTA served under 239(a) and therefore all those who sought voluntary departure could not have been eligible to apply for such relief. If they were ineligible to apply for and prove their 1-year compliance with the statute as required for voluntary departure then their proceedings must be reopened at the very least to allow them to seek any and all forms of other relief to which they could have applied with a proper NTA.

The issue of jurisdiction over immigration court proceedings is one which is being fiercely debated at the moment. Several immigration court judges around the country have held no jurisdiction exists in the wake of Pereira and therefore these cases must be terminated. The point I want to emphasize is that, irrespective of the jurisdictional issue, which has yet to be finally decided, if there was no valid NTA under Pereira then a respondent’s grant of post-hearing voluntary departure also would not have been valid. It follows, therefore, that in any case in which voluntary departure was granted at the conclusion of proceedings then that order of voluntary departure was clearly without authority and would have to now be rescinded. Because this type of voluntary departure does not preclude any other relief from being sought, those respondents must now be allowed to seek any other relief in their reopened proceedings.  To conclude otherwise would be to perpetuate the incorrect and invalid order of voluntary departure which was granted in error.  

This analysis creates at least four types of procedural scenarios which are outlined as follows.  

Cases that have not yet been finally decided. In these cases, the government will need to issue a valid NTA and the 1-year period can be calculated. The government’s corrected, re-issued NTA will fix the problem (or after termination of proceedings and a re-issued NTA provided the defective NTA created a jurisdictional problem which some immigration courts have held). Another possibility is that the government could just stipulate that the 1-year period has been satisfied. However, there is a school of thought that says (and the government has often argued) that it cannot stipulate to a violation of the statute. If so, then it is correct that Pereira requires the government to issue a corrected NTA which complies with the requirements of the INA. 

Cases that recently completed and where post-hearing voluntary departure was granted. If the voluntary departure was granted over the government's objection and the government now wants to go back and contest the alien's eligibility for voluntary departure then the government may want to reopen proceedings. At this point, however, DHS cannot benefit from its own mistake in issuing a defective NTA. In such a case, they would need to fix the NTA upon reopening. We are back in the first scenario above, where there is a corrected NTA.  At that point, the government could still object on some other ground.  Similarly, the respondent should be allowed to pursue any other grounds of relief in the reopened proceedings because at-the-conclusion voluntary departure does not prejudice a party from seeking any other relief. 

Cases that recently completed where post-hearing voluntary departure was denied. If voluntary departure was denied by the immigration court based on the one-year issue then the respondent should have the ability to also reopen proceedings in light of Pereira. The government's argument about the 1-year was necessarily flawed.  The government cannot rely on a defective NTA. Rather, the NTA must be corrected and the case reopened so that things are put back into the first scenario. At that point, the government could still object on some other ground such as good moral character or some other possible bar to voluntary departure.  Similarly, in those reopened proceedings a respondent should be allowed to pursue any other grounds of relief in addition to voluntary departure, where eligibility can be established.

The most difficult scenario will be where a respondent wants to bring a motion to reopen but it is now a long time since the issuance of the order of voluntary departure.  As we know, cases can be reopened outside the normal 90-day period but only for limited reasons.  Some courts have allowed cases to be reopened sometimes many years after a final order of removal has issued based on equitable tolling.  In Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016), the Fifth Circuit, for example, applied equitable tolling to when a respondent reasonably understood or “should have known” that he had a new argument which previously had been foreclosed. In the case of Lugo-Resendez, the respondent explained he did not become aware of the change in law until he "heard about a man that was a lawful permanent residen[t] who had a drug conviction, but ... was allowed to apply for cancellation of removal because a new law made it possible even though he had already been deported." The same reasoning should now apply to those who wish to reopen voluntary departure orders since they were unaware that the order of voluntary departure was invalid. DHS can reopen cases as well, if it wishes, but cannot benefit from its mistake. Instead it would have to re-issue a valid NTA, now, and then respondents in the reopened proceedings would be able to make any new arguments for relief which are now available.

In Dada v. Mukasey, 554 U.S. 1 (2008), the Supreme Court ruled that a respondent must be permitted an opportunity “to withdraw” his request for voluntary departure, provided that the request is made before expiration of the departure period.  It is worth noting however that where the initial voluntary departure order, in light of Pereira, was invalid from the start, then Dada’s holding should not be construed to limit the rights of respondents to reopen their voluntary departure orders if outside the expiration of the departure period. It remains to be seen if Dada will be construed to limit those who wish to reopen voluntary departure orders, under Pereira, but I would argue that Dada only applies to “valid” orders of voluntary departure and not to those issued in error due to a defective NTA.

In the wake of Pereira, an important practice advisory from NPILG suggested for those past the normal filing deadlines (i.e., 90 days for a motion to reopen and 30 days for reconsideration), they should consider filing a motion to reconsider within 30 days of the Pereira decision itself or a motion to reopen within 90 days of Pereiraand argue equitable tolling in light of the change of law. The latter date for motions to reopen is coming up soon,i.e., September 19, 2018.  Those who were issued defective NTAs  under Pereira, as discussed above, should consider either a motion to terminate or a motion to reopen, depending on the procedural posture of the case, as soon as possible."

"Geoffrey A. Hoffman is the director of the immigration clinic at the University of Houston Law Center’s Immigration Clinic and a clinical associate professor of law. He would like to thank Professor Lonny Hoffman and also Clinical Lecturer Rosemary Vega at UH for discussing these ideas. Rosemary Vega reminded me of the importance of voluntary departure as it relates to Pereira. I also would like to highlight the excellent advisories on Pereira v. Sessions from AIC / CLINIC, available at:  https://www.aila.org/infonet/council-practice-advisory-pereira-v-sessions; and the one from NPILG, available at https://www.immigrantdefenseproject.org/wp-content/uploads/FINAL_Pereira_Advisory_updated_July_16th_2018.pdf"