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First Circuit Orders Deportation of Brazilian National Appealing to Stop-Time Rule

The First Circuit Court of Appeals denied the petition of Wescley Fonseca Pereira (“Pereira”), a native and citizen of Brazil, for a review of removal based on the alleged faulty interpretation of the “stop-time” rule by the Board of Immigration Appeals.

INA § 240A(d), or the “stop-time” rule, defines when the continuous residence or continuous physical presence of a non-citizen ends. Under the rule, continuous residence for a migrant ends when that person commits criminal acts or is served with a Notice to Appear (NTA) for deportation proceedings before an Immigration Judge.

In the case of Pereira, who first entered the country in June 2000 as a non-immigrant and overstayed his visa, he was served a notice to appear by the Department of Homeland Security (DHS), less than six years after entering the United States.

However, the NTA did not specify the time and date of Pereira’s deportation hearing. Instead, it simply ordered him to appear before an Immigration Judge in Boston “on a date to be set at a time to be set.” It was only until more than a year after DHS sent the notice to appear, that the court finally mailed Pereira a notice setting his hearing on October 31, 2007 at 9:30 A.M.

But because the notice was sent to Pereira’s street address instead of his PO box, he never received it. And so, Pereira failed to appear at the hearing; the Immigration Judge subsequently ordered him removed in in absentia.

But Pereira continued to stay in the country and it wasn’t until March 2013, when he was arrested for a motor vehicle violation, that the DHS once again set its sights on him. By this time, Pereira had hired an attorney, who filed a motion to reopen his deportation proceedings on the grounds of his client never receiving the hearing notice.

Once the judge granted the motion, Pereira conceded his removability but sought relief under 8 U.S.C. § 1229b(b)(1), arguing his NTA was defective as it did not specify the date and time of his removal hearing. Because of this, Pereira argued his continuous residency clock had continued to collect time, ending when he received another notice to appear after his case was reopened in 2013.

The Immigration Judge presiding over the case found that Pereira could not establish proof of the required 10 years of continuous physical presence and ordered him removed from the country. Upon appealing to the BIA, the agency ruled that the Matter of Camarillo foreclosed this argument, to which Pereira’s legal counsel appealed that Camarillo should be reconsidered and overruled.

The First Circuit deferred to the BIA’s interpretation of the stop-time rule, agreeing with the agency’s decision that Pereira’s period of continuous physical presence in the country ended when he was sent an NTA in 2006, which means he had only spent less than six years in the country, making him ineligible for cancellation of deportation.

For more news and updates on immigration cases, be sure to follow this blog. If you, or a loved one, are facing deportation and need a legal team to appeal the decision, don’t hesitate to talk to the legal team of the Lyttle Law Firm to discuss your options. Call our offices today to schedule a consultation with immigration attorney Daniella Lyttle.

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