Pereira v. Sessions: a Notice to Appear without the hearing time and place cannot cut off the "10-year" clockPereira v. Sessions, 585 U.S. 198 (2018)
At a glance
| Item | Details |
|---|---|
| Case name | Pereira v. Sessions |
| Court | U.S. Supreme Court (on review from the U.S. Court of Appeals for the First Circuit) |
| Citation / docket no. | 585 U.S. 198 (2018); No. 17-459 |
| Argued | April 23, 2018 |
| Decided | June 21, 2018 |
| Vote | 8-1. Justice Sotomayor wrote the majority opinion; Justice Kennedy filed a concurring opinion; Justice Alito dissented |
| Provisions | INA 240A(d)(1) (stop-time rule, 8 U.S.C. 1229b(d)(1)); INA 239(a) (notice to appear, 8 U.S.C. 1229(a)) |
| Topics | Cancellation of removal; calculating continuous physical presence / continuous residence; required contents of a Notice to Appear |
| Current status | Still good law (as of October 2026). Niz-Chavez v. Garland (2021) extended its reasoning; Campos-Chaves v. Garland (2024) held that Pereira's discussion of "notices of change in hearing" was dicta and does not apply to rescinding in absentia orders |
| Opinion text | Justia, Cornell LII |
Background: what is the "stop-time rule"?
A person without a green card who applies for cancellation of removal in immigration court (EOIR-42B) must show 10 years of continuous physical presence in the United States; a green card holder who applies for cancellation of removal (EOIR-42A) must show 7 years of continuous residence after being admitted. INA 240A(d)(1) provides that this period ends when the person is "served a notice to appear under section 239(a)" (or when certain offenses are committed, whichever is earlier). This is the "stop-time rule."
INA 239(a)(1) lists what a Notice to Appear must contain, including "the time and place at which the proceedings will be held." In practice, however, the Department of Homeland Security (DHS) for many years issued large numbers of Notices to Appear stating that the date and time were "to be set," with the immigration court later mailing a separate notice of hearing. In Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011), the Board of Immigration Appeals (BIA) held that such a Notice to Appear could still trigger the stop-time rule, and most federal courts of appeals deferred to that view. The question became: can a notice that does not state the hearing time and place cut off the 10-year (or 7-year) count?
Facts
Wescley Fonseca Pereira, a citizen of Brazil, entered the United States in 2000 at age 19 as a nonimmigrant visitor and stayed after his visa expired. In 2006 he was arrested in Massachusetts for driving under the influence, and on May 31, 2006, DHS personally served him with a Notice to Appear. The notice did not give a specific hearing date and time; it said only "to be set."
DHS did not file the notice with the Boston immigration court until August 2007. The court then mailed a notice of hearing setting a hearing for October 31, 2007, but sent it to his street address rather than the post office box he had given DHS, and the letter was returned. Pereira did not appear and was ordered removed in absentia. In 2013 he was arrested for a minor traffic violation and detained by DHS; by then he had lived in the United States for more than 10 years. After he showed that he had never received the 2007 notice of hearing, the immigration court reopened his proceedings.
Pereira applied for cancellation of removal. The immigration judge concluded that the rule that a Notice to Appear need not state a definite date was well settled, that the 2006 notice had triggered the stop-time rule, and that he was short of 10 years and therefore ineligible. The BIA dismissed his appeal under Matter of Camarillo, and the U.S. Court of Appeals for the First Circuit, applying Chevron deference, found the statute ambiguous and the BIA's interpretation permissible, and affirmed.
Issue
- Is a Notice to Appear that does not state the specific time or place of the hearing a "notice to appear under section 239(a)" within the meaning of INA 240A(d)(1), so that it triggers the stop-time rule?
The Supreme Court itself described this as a "narrow question" that concerned only the stop-time rule, not the immigration court's jurisdiction or in absentia orders.
What the Court held
The majority found the statutory text clear, so Chevron deference did not apply. The stop-time rule refers expressly to a notice to appear served "under section 239(a)," and 239(a)(1) lists "the time and place at which the proceedings will be held" as required contents of a Notice to Appear. The Court's central holding was:
“A putative notice to appear that fails to designate the specific time or place of the noncitizen's removal proceedings is not a 'notice to appear under section 1229(a),' and so does not trigger the stop-time rule.”
The Court added that common sense compels the same conclusion: a notice that does not tell you when and where to appear is not a "notice to appear." In addition, INA 239(a)(2) allows the government, when necessary, to change the hearing "to a new time or place," and the majority read that provision as presupposing that the original notice stated a time and place (this part of the reasoning was later characterized as dicta in Campos-Chaves). Pereira's case was remanded.
- Justice Kennedy's concurrence: joined the majority in full and separately expressed concern that lower courts were applying Chevron deference to statutory interpretation too readily.
- Justice Alito's dissent: found the statute ambiguous and would have deferred under Chevron to the government's reasonable interpretation; he also noted that DHS does not control immigration court scheduling, so requiring a date on the Notice to Appear would only produce estimated dates that are likely to change and could confuse the people receiving them.
In a footnote, the Court expressly left open whether a notice missing other items listed in 239(a)(1) (items other than time and place) triggers the stop-time rule.
What it means for you
People with a case in immigration court
- First locate the original of every Notice to Appear you received and check whether the hearing date, time and court address are stated. Many notices issued before 2018 say "to be set."
- Pereira addresses how the 10 years / 7 years are counted. It does not mean a defective notice automatically ends the case. Questions of jurisdiction and procedural objections were later addressed separately by the BIA and the federal courts of appeals (see "Later developments" below), and they come with deadlines.
People who want to apply for cancellation of removal (EOIR-42B, 10-year rule)
- If you had not yet reached 10 years when you received a Notice to Appear, but that notice did not state the hearing time or place, the stop-time rule may not have been triggered, and your time may have continued to accrue. The later Niz-Chavez decision further held that the government cannot "complete" the notice with a separately mailed notice of hearing.
- On the other hand, if DHS later served a new, complete Notice to Appear, the clock may have stopped at that point. The precise date calculation determines whether you are eligible.
- Reaching 10 years is only one of four requirements. You must also show good moral character, the absence of certain criminal convictions, and "exceptional and extremely unusual hardship" to a U.S. citizen or green card holder relative.
Green card holders (EOIR-42A)
- The stop-time rule also applies to the "7 years of continuous residence" required for cancellation of removal for green card holders, so Pereira matters equally to EOIR-42A applicants. But criminal conduct can itself trigger the stop-time rule regardless of whether the Notice to Appear was complete, and both must be analyzed together.
People who have received an in absentia removal order
- Pereira himself was first ordered removed in absentia and later had his proceedings reopened. But the reason for reopening was that "the notice of hearing was sent to the wrong address and never received," not that the Notice to Appear lacked the time and place.
- If the Notice to Appear lacked the time and place but you later received a proper notice of hearing, that defect alone is not a basis to rescind an in absentia removal order. That is the holding of Campos-Chaves v. Garland (2024).
Family members
- Family members can help collect all of the person's immigration documents and evidence of entry and residence; if documents are missing, records can be requested under the Freedom of Information Act (see G-639).
- For cancellation of removal, the "hardship" must fall on a U.S. citizen or green card holder spouse, parent, or unmarried child under 21, so the family members' own circumstances are the core evidence in the case.
Later developments
- Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018): After Pereira, many respondents argued that a defective Notice to Appear deprived the immigration court of jurisdiction. The BIA held that a Notice to Appear that does not state the time and place of the initial hearing still vests the immigration judge with jurisdiction, so long as a notice of hearing stating that information is later sent to the respondent; the BIA viewed Pereira as limited to the stop-time rule and distinct from this issue.
- Matter of Mendoza-Hernandez and Capula-Cortes, 27 I&N Dec. 520 (BIA 2019): The BIA further held that a later notice of hearing could "cure" a defective Notice to Appear and trigger the stop-time rule upon that cure. This position was rejected in 2021 in Niz-Chavez v. Garland.
- Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019) (No. 18-3251, May 20, 2019): The Seventh Circuit, which includes Illinois, held that a Notice to Appear lacking the time and place violates the statutory requirement, but that the requirement is a "claim-processing rule," not a jurisdictional one, and an objection that is not raised in time may be lost; the petition for review in that case was denied because the respondent had not objected in time.
- Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021): After Niz-Chavez, the BIA reaffirmed that a Notice to Appear lacking the time and place of the initial hearing does not deprive the immigration judge of jurisdiction.
- Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022): The BIA held that the time-and-place requirement of INA 239(a)(1) is a claim-processing rule; an objection to a noncompliant Notice to Appear is generally timely only if raised before the close of pleadings before the immigration judge; a respondent who objects in time generally need not show prejudice; and the immigration judge may allow DHS to remedy the defective notice rather than necessarily terminating proceedings.
- Matter of Nchifor, 28 I&N Dec. 585 (BIA 2022): An objection that the Notice to Appear lacked the time and place, raised for the first time in a motion to reopen, is deemed forfeited.
- Matter of Larios-Gutierrez de Pablo and Pablo-Larios, 28 I&N Dec. 868 (BIA 2024): The Fernandes "before the close of pleadings" deadline is not a change in law and applies retroactively; the respondents in that case raised their objection more than five years after conceding removability, and the objection was held untimely.
As of October 2026, the Supreme Court has not decided whether a defective Notice to Appear affects the immigration court's jurisdiction; practice may differ among the circuits, so check the latest case law in the circuit where your case is pending.
Practical steps: what to do now
- Gather every notice: Arrange your Notices to Appear, notices of hearing, rescheduling notices and court orders by date, and check how and to what address each was served.
- Calculate your time precisely: Count from your first entry, account for departures (a single absence over 90 days or a total over 180 days breaks continuous physical presence), and then determine which document, if any, triggered the stop-time rule.
- Watch the objection deadline: If your case is at an early stage and pleadings have not yet been taken, decide with your attorney before pleadings whether to object to the Notice to Appear. This is a strategic question; an objection may simply lead DHS to serve a new, complete notice.
- Do not rely on a single technical argument: Even if the time calculation works in your favor, the hardship standard and moral character requirements for cancellation of removal remain demanding, so prepare that evidence at the same time.
Frequently asked questions
My Notice to Appear says the date is "to be set." Does that make my case invalid?
Not necessarily. Pereira held only that such a notice does not trigger the stop-time rule. The BIA and courts such as the Seventh Circuit have held that it does not deprive the immigration court of jurisdiction; an objection to the defect is a procedural matter that generally must be raised before the close of pleadings. Whether it is worth raising, and what would happen if you did, depends on the stage of your case.
I had lived in the U.S. for 8 years when I received my Notice to Appear, and now it has been 12 years. Can I apply on EOIR-42B?
It depends on whether that Notice to Appear stated the hearing time and place, and whether DHS later served a new, complete notice. If the notice lacked the time and place and no complete notice followed, the stop-time rule may not have been triggered. You must still also meet the good moral character, criminal-record and hardship requirements.
The court later sent a notice stating the hearing time. Does that fill the gap?
Not for purposes of the stop-time rule. In 2021, Niz-Chavez v. Garland held that a Notice to Appear must be a single document containing all of the required information, and the government cannot piece it together with later notices of hearing. For rescinding an in absentia removal order, however, the rule is different; see Campos-Chaves v. Garland.
Does Pereira affect green card holders?
Yes. Cancellation of removal for green card holders (EOIR-42A) requires 7 years of continuous residence after admission, which is also subject to the stop-time rule. But certain criminal conduct can itself cut off the count, so the analysis must consider both.
What if I can no longer find my old Notice to Appear?
You can request your records from DHS and EOIR under the Freedom of Information Act (FOIA), and you can also check the immigration court's case information. Until you have the original, do not rely on memory to decide whether the notice was complete.
Opinion and sources
- U.S. Supreme Court docket No. 17-459
- Cornell LII: full text of Pereira v. Sessions
- Justia: Pereira v. Sessions, 585 U.S. 198 (2018)
- EOIR: Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018)
- EOIR: Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021)
- Department of Justice: Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022)
- EOIR: Matter of Nchifor, 28 I&N Dec. 585 (BIA 2022)
- Department of Justice: Matter of Larios-Gutierrez de Pablo, 28 I&N Dec. 868 (BIA 2024)
- GovInfo: Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019)
- EOIR: BIA and Attorney General precedent decisions
Related reading
- Form EOIR-42B guide: cancellation of removal for non-permanent residents
- Form EOIR-42A guide: cancellation of removal for green card holders
- Niz-Chavez v. Garland: a Notice to Appear must be "one complete document"
- Campos-Chaves v. Garland: in absentia removal orders and notices of hearing
- Form G-639 guide: Freedom of Information Act requests
Whether your Notice to Appear stated the hearing time and place, whether you have reached 10 years, and whether to object before pleadings all depend on the original documents and a precise date calculation. Book an attorney assessment. We will first review all of your immigration court documents and residence records, and then explain the available options and risks.
This page is a general introduction to a court decision and is not legal advice. The law and case law change, and outcomes depend on the specific facts. To evaluate your situation, consult an attorney.