In Immigration Case, Supreme Court To Decide If 'Time Stopped' For Man On Martha's Vineyard

Apr 23, 2018
Originally published on April 23, 2018 8:18 am

The U.S. Supreme Court hears oral arguments Monday in Pereira v. Sessions, a case that, for thousands of immigrants, could mean the difference between staying in the country and being deported.

At the center of it all is a Brazilian immigrant who overstayed his visa and for almost 16 years has lived on Martha’s Vineyard.

‘What Could Happen? We Don’t Know’

Best known as a vacation mecca, the Vineyard’s population explodes in the busy summertime months. But this time of year, it’s buzzing with a different energy as year-round residents are tackling home improvement projects.

Wescley Pereira and Gail Meister have been neighbors for more than a decade, and on a recent cool spring day, they’re checking out the new skunk-proof fencing Pereira installed around the foundation of Meister’s cottage. Their two homes share a single driveway that empties into a wide open field.

“See all this,” Meister says, pointing to a shallow trench, “that goes down 12 inches.”

“That’s like an ‘L’ shape,” Pereira says in imperfect English. “One foot down and one horizontal, just for protect for skunks.”

Pereira and Meister laugh recalling the six skunks that lived under her house last summer.

The day we meet, Pereira is wearing a New England Patriots hat and a hooded sweatshirt with an outline of Martha’s Vineyard stenciled on the chest. The word “home” is printed in lower-case letters.

Sitting down at his dining room table, Pereira explains that he came to the U.S. from Brazil on a tourist visa when he was 19 years old — and never left. After living in Boston for a few years he ventured out to the Vineyard, where there are plenty of jobs, he says, for people willing to work hard. The island has been home ever since.

“And I say, I’m … a New Englander now. So, clam chowder, Patriots, even my dog is a Boston terrier,” he says with a laugh.

Pereira, now 37 and married, works as a painter, landscaper and handyman. Both of his daughters are U.S. citizens who were born on the island. The quality of life for his children is a big reason he’s chosen to stay.

But as much as Pereira and his family enjoy island living, there’s an uncertainty that weighs heavily upon all of them.

“I’m at an odd stage now. What could happen, that’s the problem,” he says. “What could happen? We don’t know.”

A Ticking Clock

It all started in 2006 when federal immigration officials sent Pereira what’s called a “Notice to Appear,” charging him with overstaying his visa.

By statute, this “Notice to Appear” should have given the date and time of the hearing, but it didn’t. These missing details form the basis of the Supreme Court case and may very well determine Pereira’s future.

Sarah Sherman-Stokes is an immigration attorney and associate director of Boston University’s Immigrants’ Rights and Human Trafficking Program. She says that once a proper Notice to Appear has been served, it ” ‘stops the time’ for a non-citizen who is trying to accrue 10 years of presence in this country.”

And this 10-year milestone is significant.

“There’s something called 10-year cancellation of removal, but that’s only eligible to folks who have been here for 10 years or more without having their time stopped,” Sherman-Stokes explained.

So, imagine a clock. If you’re an immigrant living in the country without authorization, a clock starts ticking the moment you enter the U.S. If your clock — your time in the country — hits 10 (years, that is) then under certain circumstances, you could be eligible to stay in the country.

The government says once a Notice to Appear is issued, it stops this clock from accruing more time. But in Pereira’s case, his notice to appear was missing information and David Zimmer, one of Pereira’s attorneys, says this is the crux of the argument before the Supreme Court.

“The issue in this case is what happens if the government serves something that it calls a Notice to Appear but that says the time and place the proceedings will be held is yet to be determined?”

Zimmer argues the government isn’t living up to its statutory obligations when it issues incomplete notices, like the one Pereira received. More than a year passed before Pereira was actually assigned a court date. That year was lost from his clock.

“There are a lot of people who are in this situation where they have this time in between the two notices and they need to know whether or not it counts, and if it does count, then that could determine whether they’re eligible for cancellation of removal,” Zimmer said.

Jessica Vaughan, director of policy studies at the Center for Immigration Studies, which favors stricter immigration enforcement, says it’s unreasonable to expect the government to know every detail about an upcoming proceeding.

“The government is initiating deportation proceedings with a Notice to Appear. It shouldn’t matter exactly when and where and at what hour those proceedings are going to take place,” said Vaughan.

‘Just Wait, That’s My Thing Now’

Appellate courts across the country have disagreed on this very question of what information needs to be included in a Notice to Appear in order for the government to stop the so-called clock.

Sherman-Stokes at Boston University says these differing opinions are what make Pereira’s case ripe for a Supreme Court decision.

“Both sides agree that this issue will remain entrenched,” she said. “Unless the Supreme Court addresses this, the circuit split is likely to remain.”

Sherman-Stokes says it’s unclear just how many people could become eligible for this relief from deportation if the court rules in favor of Pereira, but the impact could be profound.

For Pereira, it could mean the difference between staying on the island he loves and returning to his native Brazil.

“I try don’t think much ’cause doesn’t help, so I try focus on other things, ’cause it’s not going to help. Just wait, that’s my thing now.”

Until then, Pereira’s clock stands still while his life goes on.

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