Pereira v. Sessions

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
PEREIRA v. SESSIONS, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 17–459. Argued April 23, 2018—Decided June 21, 2018
Under the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA), nonpermanent residents who are subject to re-
moval proceedings may be eligible for cancellation of removal if,
among other things, they have “been physically present in the United
States for a continuous period of not less than 10 years immediately
preceding the date of [an] application” for cancellation. 8 U.S. C.
§1229(b)(1)(A). Under the stop-time rule, however, the period of con-
tinuous presence is “deemed to end . . . when the alien is served a no-
tice to appear under section 1229(a).” §1229(d)(1)(A). Section
1229(a), in turn, provides that the Government shall serve nonciti-
zens in removal proceedings with a written “ ‘notice to appear,’ ” spec-
ifying, among other things, “[t]he time and place at which the [re-
moval] proceedings will be held.” §1229(a)(1)(G)(i). Per a 1997
regulation stating that a “notice to appear” served on a noncitizen
need only provide “the time, place and date of the initial removal
hearing, where practicable,” 62 Fed. Reg. 10332, the Department of
Homeland Security (DHS), at least in recent years, almost always
serves noncitizens with notices that fail to specify the time, place, or
date of initial removal hearings whenever the agency deems it im-
practicable to include such information. The Board of Immigration
Appeals (BIA) has held that such notices trigger the stop-time rule
even if they do not specify the time and date of the removal proceed-
ings.
Petitioner Wescley Fonseca Pereira is a native and citizen of Brazil
who came to the United States in 2000 and remained after his visa
expired. Following a 2006 arrest for operating a vehicle while under
the influence of alcohol, DHS served Pereira with a document titled
“notice to appear” that did not specify the date and time of his initial
2 PEREIRA v. SESSIONS
Syllabus
removal hearing, instead ordering him to appear at a time and date
to be set in the future. More than a year later, in 2007, the Immigra-
tion Court mailed Pereira a more specific notice setting the date and
time for his initial hearing, but the notice was sent to the wrong ad-
dress and was returned as undeliverable. As a result, Pereira failed
to appear, and the Immigration Court ordered him removed in absen-
tia.
In 2013, Pereira was arrested for a minor motor vehicle violation
and detained by DHS. The Immigration Court reopened the removal
proceedings after Pereira demonstrated that he never received the
2007 notice. Pereira then applied for cancellation of removal, argu-
ing that he had been continuously present in the United States for
more than 10 years and that the stop-time rule was not triggered by
DHS’ initial 2006 notice because the document lacked information
about the time and date of his removal hearing. The Immigration
Court disagreed and ordered Pereira removed. The BIA agreed with
the Immigration Court that the 2006 notice triggered the stop-time
rule, even though it failed to specify the time and date of Pereira’s in-
itial removal hearing. The Court of Appeals for the First Circuit de-
nied Pereira’s petition for review of the BIA’s order. Applying the
framework set forth in Chevron U. S. A. Inc. v. Natural Resources De-
fense Council, Inc., 467 U.S. 837, it held that the stop-time rule is
ambiguous and that the BIA’s interpretation of the rule was a per-
missible reading of the statute.
Held: 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 §1229(a),” and so does not trigger the stop-time rule.
Pp. 7–20.
(a) The Court need not resort to Chevron deference, for the unam-
biguous statutory text alone is enough to resolve this case. Under the
stop-time rule, “any period of . . . continuous physical presence” is
“deemed to end . . . when the alien is served a notice to appear under
section 1229(a).” 8 U.S. C. §1229b(d)(1). By expressly referencing
§1229(a), the statute specifies where to look to find out what “notice
to appear” means. Section 1229(a), in turn, clarifies that the type of
notice “referred to as a ‘notice to appear’ ” throughout the statutory
section is a “written notice . . . specifying,” as relevant here, “[t]he
time and place at which the [removal] proceedings will be held.”
§1229(a)(1)(G)(i). Thus, to trigger the stop-time rule, the Govern-
ment must serve a notice to appear that, at the very least,
“specif[ies]” the “time and place” of the removal hearing.
The Government and dissent point out that the stop-time rule re-
fers broadly to a notice to appear under “§1229(a)”—which includes
paragraph (1), as well as paragraphs (2) and (3). But that does not
Cite as: 585 U. S. ____ (2018) 3
Syllabus
matter, because only paragraph (1) bears on the meaning of a “notice
to appear.” If anything, paragraph (2), which allows for a “change or
postponement” of the proceedings to a “new time and place,”
§1229(a)(2)(A)(i), bolsters the Court’s interpretation of the statute be-
cause the provision presumes that the Government has already
served a “notice to appear” that specified a time and place as required
by §1229(a)(1)(G)(i). Another neighboring provision, §1229(b)(1),
lends further support for the view that a “notice to appear” must
specify the time and place of removal proceedings to trigger the stop-
time rule. Section 1229(b)(1) gives a noncitizen “the opportunity to
secure counsel before the first [removal] hearing date” by mandating
that such “hearing date shall not be scheduled earlier than 10 days
after the service of the notice to appear.” For that provision to have
any meaning, the “notice to appear” must specify the time and place
that the noncitizen, and his counsel, must appear at the removal pro-
ceedings. Finally, common sense reinforces the conclusion that a no-
tice that does not specify when and where to appear for a removal
proceeding is not a “notice to appear” that triggers the stop-time rule.
After all, an essential function of a “notice to appear” is to provide
noncitizens “notice” of the information (i.e., the “time” and “place”)
that would enable them “to appear” at the removal hearing in the
first place. Without conveying such information, the Government
cannot reasonably expect noncitizens to appear for their removal pro-
ceedings. Pp. 7–13.
(b) The Government and the dissent advance a litany of counterar-
guments, all of which are unpersuasive. To begin, the Government
mistakenly argues that §1229(a) is not definitional. That is wrong.
Section 1229(a) speaks in definitional terms, requiring that a notice
to appear specify, among other things, the “time and place at which
the proceedings will be held.” As such, the dissent is misguided in
arguing that a defective notice to appear, which fails to specify time-
and-place information, is still a notice to appear for purposes of the
stop-time rule. Equally unavailing is the Government’s (and the dis-
sent’s) attempt to generate ambiguity in the statute based on the
word “under.” In light of the plain language and statutory context,
the word “under,” as used in the stop-time rule, clearly means “in ac-
cordance with” or “according to” because it connects the stop-time
trigger in §1229b(d)(1) to a “notice to appear” that specifies the enu-
merated time-and-place information. The Government fares no bet-
ter in arguing that surrounding statutory provisions reinforce its pre-
ferred reading of the stop-time rule, as none of those provisions
supports its atextual interpretation. Unable to root its reading in the
statutory text, the Government and dissent raise a number of practi-
cal concerns, but those concerns are meritless and do not justify de-
4 PEREIRA v. SESSIONS
Syllabus
parting from the statute’s clear text. In a final attempt to salvage its
atextual interpretation, the Government turns to the alleged statuto-
ry purpose and legislative history of the stop-time rule. Even for
those who consider statutory purpose and legislative history, howev-
er, neither supports the Government’s position. Requiring the Gov-
ernment to furnish time-and-place information in a notice to appear
is entirely consistent with Congress’ stated objective of preventing
noncitizens from exploiting administrative delays to accumulate
lengthier periods of continuous precedent. Pp. 13–20.
866 F.3d 1, reversed and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, GINSBURG, BREYER, KAGAN, and GORSUCH,
JJ., joined. KENNEDY, J., filed a concurring opinion. ALITO, J., filed a
dissenting opinion.
Cite as: 585 U. S. ____ (2018) 1
Opinion of S
Opinion the Court, J.
ofOTOMAYOR
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–459
_________________
WESCLEY FONSECA PEREIRA, PETITIONER v.
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 21, 2018]
JUSTICE SOTOMAYOR delivered the opinion of the Court.
Nonpermanent residents, like petitioner here, who are
subject to removal proceedings and have accrued 10 years
of continuous physical presence in the United States, may
be eligible for a form of discretionary relief known as
cancellation of removal. 8 U.S. C. §1229b(b)(1). Under
the so-called “stop-time rule” set forth in §1229b(d)(1)(A),
however, that period of continuous physical presence is
“deemed to end . . . when the alien is served a notice to
appear under section 1229(a).” Section 1229(a), in turn,
provides that the Government shall serve noncitizens in
removal proceedings with “written notice (in this section
referred to as a ‘notice to appear’) . . . specifying” several
required pieces of information, including “[t]he time and
place at which the [removal] proceedings will be held.”
§1229(a)(1)(G)(i).1
The narrow question in this case lies at the intersection
——————
1 The Court uses the term “noncitizen” throughout this opinion to
refer to any person who is not a citizen or national of the United States.
See 8 U.S. C. §1101(a)(3).
2 PEREIRA v. SESSIONS
Opinion of the Court
of those statutory provisions. If the Government serves a
noncitizen with a document that is labeled “notice to
appear,” but the document fails to specify either the time
or place of the removal proceedings, does it trigger the
stop-time rule? The answer is as obvious as it seems: No.
A notice that does not inform a noncitizen when and
where to appear for removal proceedings is not a “notice to
appear under section 1229(a)” and therefore does not
trigger the stop-time rule. The plain text, the statutory
context, and common sense all lead inescapably and un-
ambiguously to that conclusion.
I
A
Under the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–546,
the Attorney General of the United States has discretion
to “cancel removal” and adjust the status of certain non-
permanent residents. §1229b(b). To be eligible for such
relief, a nonpermanent resident must meet certain enu-
merated criteria, the relevant one here being that the
noncitizen must have “been physically present in the
United States for a continuous period of not less than 10
years immediately preceding the date of [an] application”
for cancellation of removal. §1229b(b)(1)(A).2
IIRIRA also established the stop-time rule at issue in
this case. Under that rule, “any period of . . . continuous
physical presence in the United States shall be deemed to
end . . . when the alien is served a notice to appear under
section 1229(a) of this title.”3 §1229b(d)(1)(A). Section
——————
2 Lawful permanent residents also may be eligible for cancellation of
removal if, inter alia, they have continuously resided in the United
States for at least seven years. §1229b(a)(2).
3 The period of continuous physical presence also stops if and when
“the alien has committed” certain enumerated offenses that would
Cite as: 585 U. S. ____ (2018) 3
Opinion of the Court
1229(a), in turn, provides that “written notice (in this
section referred to as a ‘notice to appear’) shall be given
. . . to the alien . . . specifying”:
“(A) The nature of the proceedings against the alien.
“(B) The legal authority under which the proceed-
ings are conducted.
“(C) The acts or conduct alleged to be in violation of
law.
“(D) The charges against the alien and the statutory
provisions alleged to have been violated.
“(E) The alien may be represented by counsel and
the alien will be provided (i) a period of time to secure
counsel under subsection (b)(1) of this section and (ii)
a current list of counsel prepared under subsection
(b)(2) of this section.
“(F)(i) The requirement that the alien must imme-
diately provide (or have provided) the Attorney Gen-
eral with a written record of an address and telephone
number (if any) at which the alien may be contacted
respecting proceedings under section 1229a of this
title.
“(ii) The requirement that the alien must provide
the Attorney General immediately with a written rec-
ord of any change of the alien’s address or telephone
number.
“(iii) The consequences under section 1229a(b)(5) of
this title of failure to provide address and telephone
information pursuant to this subparagraph.
“(G)(i) The time and place at which the [re-
moval] proceedings will be held.
“(ii) The consequences under section 1229a(b)(5) of
this title of the failure, except under exceptional cir-
——————
constitute grounds for removal or inadmissibility. §1229b(d)(1)(B).
That provision is not at issue here.
4 PEREIRA v. SESSIONS
Opinion of the Court
cumstances, to appear at such proceedings.”
§1229(a)(1) (boldface added).
The statute also enables the Government to “change or
postpon[e] . . . the time and place of [the removal] proceed-
ings.” §1229(a)(2)(A). To do so, the Government must give
the noncitizen “a written notice . . . specifying . . . the new
time or place of the proceedings” and “the consequences
. . . of failing, except under exceptional circumstances, to
attend such proceedings.” Ibid. The Government is not
required to provide written notice of the change in time or
place of the proceedings if the noncitizen is “not in deten-
tion” and “has failed to provide [his] address” to the Gov-
ernment. §1229(a)(2)(B).
The consequences of a noncitizen’s failure to appear at a
removal proceeding can be quite severe. If a noncitizen
who has been properly served with the “written notice
required under paragraph (1) or (2) of section 1229(a)”
fails to appear at a removal proceeding, he “shall be or-
dered removed in absentia” if the Government “establishes
by clear, unequivocal, and convincing evidence that the
written notice was so provided and that the alien is re-
movable.” §1229a(b)(5)(A). Absent “exceptional circum-
stances,” a noncitizen subject to an in absentia removal
order is ineligible for some forms of discretionary relief for
10 years if, “at the time of the notice described in para-
graph (1) or (2) of section 1229(a),” he “was provided oral
notice . . . of the time and place of the proceedings and of
the consequences” of failing to appear. §1229a(b)(7). In
certain limited circumstances, however, a removal order
entered in absentia may be rescinded—e.g., when the
noncitizen “demonstrates that [he] did not receive notice
in accordance with paragraph (1) or (2) of section 1229(a).”
§1229a(b)(5)(C)(ii).
B
In 1997, shortly after Congress passed IIRIRA, the
Cite as: 585 U. S. ____ (2018) 5
Opinion of the Court
Attorney General promulgated a regulation stating that a
“notice to appear” served on a noncitizen need only provide
“the time, place and date of the initial removal hearing,
where practicable.” 62 Fed. Reg. 10332 (1997). Per that
regulation, the Department of Homeland Security (DHS),
at least in recent years, almost always serves noncitizens
with notices that fail to specify the time, place, or date of
initial removal hearings whenever the agency deems it
impracticable to include such information. See Brief for
Petitioner 14; Brief for Respondent 48–49; Tr. of Oral Arg.
52–53 (Government’s admission that “almost 100 percent”
of “notices to appear omit the time and date of the pro-
ceeding over the last three years”). Instead, these notices
state that the times, places, or dates of the initial hearings
are “to be determined.” Brief for Petitioner 14.
In Matter of Camarillo, 25 I. & N. Dec. 644 (2011), the
Board of Immigration Appeals (BIA) addressed whether
such notices trigger the stop-time rule even if they do not
specify the time and date of the removal proceedings. The
BIA concluded that they do. Id., at 651. It reasoned that
the statutory phrase “notice to appear ‘under section
[1229](a)’ ” in the stop-time rule “merely specifies the
document the DHS must serve on the alien to trigger the
‘stop-time’ rule,” but otherwise imposes no “substantive
requirements” as to what information that document must
include to trigger the stop-time rule. Id., at 647.
C
Petitioner Wescley Fonseca Pereira is a native and
citizen of Brazil. In 2000, at age 19, he was admitted to
the United States as a temporary “non-immigrant visitor.”
App. to Pet. for Cert. 3a. After his visa expired, he re-
mained in the United States. Pereira is married and has
two young daughters, both of whom are United States
citizens. He works as a handyman and, according to
submissions before the Immigration Court, is a well-
6 PEREIRA v. SESSIONS
Opinion of the Court
respected member of his community.
In 2006, Pereira was arrested in Massachusetts for
operating a vehicle while under the influence of alcohol.
On May 31, 2006, while Pereira was detained, DHS served
him (in person) with a document labeled “Notice to Ap-
pear.” App. 7–13. That putative notice charged Pereira as
removable for overstaying his visa, informed him that
“removal proceedings” were being initiated against him,
and provided him with information about the “[c]onduct of
the hearing” and the consequences for failing to appear.
Id., at 7, 10–12. Critical here, the notice did not specify
the date and time of Pereira’s removal hearing. Instead, it
ordered him to appear before an Immigration Judge in
Boston “on a date to be set at a time to be set.” Id., at 9
(underlining in original).
More than a year later, on August 9, 2007, DHS filed
the 2006 notice with the Boston Immigration Court. The
Immigration Court thereafter attempted to mail Pereira a
more specific notice setting the date and time for his ini-
tial removal hearing for October 31, 2007, at 9:30 a.m.
But that second notice was sent to Pereira’s street address
rather than his post office box (which he had provided to
DHS), so it was returned as undeliverable. Because Pe-
reira never received notice of the time and date of his re-
moval hearing, he failed to appear, and the Immigration
Court ordered him removed in absentia. Unaware of that re-
moval order, Pereira remained in the United States.
In 2013, after Pereira had been in the country for more
than 10 years, he was arrested for a minor motor vehicle
violation (driving without his headlights on) and was
subsequently detained by DHS. The Immigration Court
reopened the removal proceedings after Pereira demon-
strated that he never received the Immigration Court’s
2007 notice setting out the specific date and time of his
hearing. Pereira then applied for cancellation of removal,
arguing that the stop-time rule was not triggered by DHS’
Cite as: 585 U. S. ____ (2018) 7
Opinion of the Court
initial 2006 notice because the document lacked infor-
mation about the time and date of his removal hearing.
The Immigration Court disagreed, finding the law “quite
settled that DHS need not put a date certain on the Notice
to Appear in order to make that document effective.” App.
to Pet. for Cert. 23a. The Immigration Court therefore
concluded that Pereira could not meet the 10-year physical-
presence requirement under §1229b(b), thereby render-
ing him statutorily ineligible for cancellation of removal,
and ordered Pereira removed from the country. The
BIA dismissed Pereira’s appeal. Adhering to its precedent
in Camarillo, the BIA agreed with the Immigration Court
that the 2006 notice triggered the stop-time rule and that
Pereira thus failed to satisfy the 10-year physical-presence
requirement and was ineligible for cancellation of removal.
The Court of Appeals for the First Circuit denied Perei-
ra’s petition for review of the BIA’s order. 866 F.3d 1
(2017). Applying the framework set forth in Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984), the Court of Appeals first found that
the stop-time rule in §1229b(d)(1) is ambiguous because it
“does not explicitly state that the date and time of the
hearing must be included in a notice to appear in order to
cut off an alien’s period of continuous physical presence.”
866 F.3d, at 5. Then, after reviewing the statutory text
and structure, the administrative context, and pertinent
legislative history, the Court of Appeals held that the
BIA’s interpretation of the stop-time rule was a permissi-
ble reading of the statute. Id., at 6–8.
II
A
The Court granted certiorari in this case, 583 U. S. ___
(2018), to resolve division among the Courts of Appeals on
a simple, but important, question of statutory interpreta-
tion: Does service of a document styled as a “notice to
8 PEREIRA v. SESSIONS
Opinion of the Court
appear” that fails to specify “the items listed” in
§1229(a)(1) trigger the stop-time rule?4 Pet. for Cert. i.
As a threshold matter, the Court notes that the question
presented by Pereira, which focuses on all “items listed” in
§1229(a)(1), sweeps more broadly than necessary to re-
solve the particular case before us. Although the time-
and-place information in a notice to appear will vary from
case to case, the Government acknowledges that “[m]uch
of the information Section 1229(a)(1) calls for does not”
change and is therefore “included in standardized lan-
guage on the I–862 notice-to-appear form.” Brief for Re-
spondent 36 (referencing 8 U.S. C. §§1229(a)(1)(A)–(B),
(E)–(F), and (G)(ii)). In fact, the Government’s 2006 notice
to Pereira included all of the information required by
§1229(a)(1), except it failed to specify the date and time of
Pereira’s removal proceedings. See App. 10–12. Accord-
ingly, the dispositive question in this case is much nar-
rower, but no less vital: Does a “notice to appear” that does
not specify the “time and place at which the proceedings
will be held,” as required by §1229(a)(1)(G)(i), trigger the
stop-time rule?5
——————
4 Compare Orozco-Velasquez v. Attorney General United States, 817
F.3d 78, 83–84 (CA3 2016) (holding that the stop-time rule unambigu-
ously requires service of a “notice to appear” that meets §1229(a)(1)’s
requirements), with Moscoso-Castellanos v. Lynch, 803 F.3d 1079, 1083
(CA9 2015) (finding the statute ambiguous and deferring to the BIA’s
interpretation); O’Garro v. United States Atty. Gen., 605 Fed. Appx.
951, 953 (CA11 2015) (per curiam) (same); Guaman-Yuqui v. Lynch,
786 F.3d 235, 239–240 (CA2 2015) (per curiam) (same); Gonzalez-
Garcia v. Holder, 770 F.3d 431, 434–435 (CA6 2014) (same); Yi Di
Wang v. Holder, 759 F.3d 670, 674–675 (CA7 2014) (same); Urbina v.
Holder, 745 F.3d 736, 740 (CA4 2014) (same).
5 The Court leaves for another day whether a putative notice to ap-
pear that omits any of the other categories of information enumerated
in §1229(a)(1) triggers the stop-time rule. Contrary to the dissent’s
assertion, this exercise of judicial restraint is by no means “tantamount
to admitting” that the Government’s (and dissent’s) atextual interpre-
Cite as: 585 U. S. ____ (2018) 9
Opinion of the Court
In addressing that narrower question, the Court need
not resort to Chevron deference, as some lower courts have
done, for Congress has supplied a clear and unambiguous
answer to the interpretive question at hand. See 467
U.S., at 842–843 (“If the intent of Congress is clear, that
is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent
of Congress”). 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.
B
The statutory text alone is enough to resolve this case.
Under the stop-time rule, “any period of . . . continuous
physical presence” is “deemed to end . . . when the alien is
served a notice to appear under section 1229(a).” 8
U.S. C. §1229b(d)(1). By expressly referencing §1229(a),
the statute specifies where to look to find out what “notice
to appear” means. Section 1229(a), in turn, clarifies that
the type of notice “referred to as a ‘notice to appear’ ”
throughout the statutory section is a “written notice . . .
specifying,” as relevant here, “[t]he time and place at
which the [removal] proceedings will be held.”
§1229(a)(1)(G)(i). Thus, based on the plain text of the
statute, it is clear that to trigger the stop-time rule, the
Government must serve a notice to appear that, at the
very least, “specif[ies]” the “time and place” of the removal
proceedings.
It is true, as the Government and dissent point out, that
the stop-time rule makes broad reference to a notice to
——————
tation is a permissible construction of the statute. Post, at 10 (opinion
of ALITO, J.).
10 PEREIRA v. SESSIONS
Opinion of the Court
appear under “section 1229(a),” which includes para-
graph (1), as well as paragraphs (2) and (3). See Brief for
Respondent 27–28; post, at 5–6 (opinion of ALITO, J.). But
the broad reference to §1229(a) is of no consequence, be-
cause, as even the Government concedes, only paragraph
(1) bears on the meaning of a “notice to appear.” Brief for
Respondent 27. By contrast, paragraph (2) governs the
“[n]otice of change in time or place of proceedings,” and
paragraph (3) provides for a system to record noncitizens’
addresses and phone numbers. Nowhere else within
§1229(a) does the statute purport to delineate the re-
quirements of a “notice to appear.” In fact, the term “no-
tice to appear” appears only in paragraph (1) of §1229(a).
If anything, paragraph (2) of §1229(a) actually bolsters
the Court’s interpretation of the statute. Paragraph (2)
provides that, “in the case of any change or postponement
in the time and place of [removal] proceedings,” the Gov-
ernment shall give the noncitizen “written notice . . .
specifying . . . the new time or place of the proceedings.”
§1229(a)(2)(A)(i). By allowing for a “change or postpone-
ment” of the proceedings to a “new time or place,” para-
graph (2) presumes that the Government has already
served a “notice to appear under section 1229(a)” that
specified a time and place as required by §1229(a)(1)(G)(i).
Otherwise, there would be no time or place to “change or
postpon[e ].” §1229(a)(2). Notably, the dissent concedes
that paragraph (2) confirms that a notice to appear must
“state the ‘time and place’ of the removal proceeding as
required by §1229(a)(1).’ ” Post, at 13. The dissent never-
theless retorts that this point is “entirely irrelevant.” Ibid.
Not so. Paragraph (2) clearly reinforces the conclusion
that “a notice to appear under section 1229(a),”
§1229b(d)(1), must include at least the time and place of
the removal proceedings to trigger the stop-time rule.
Another neighboring statutory provision lends further
contextual support for the view that a “notice to appear”
Cite as: 585 U. S. ____ (2018) 11
Opinion of the Court
must include the time and place of the removal proceed-
ings to trigger the stop-time rule. Section 1229(b)(1) gives
a noncitizen “the opportunity to secure counsel before the
first [removal] hearing date” by mandating that such
“hearing date shall not be scheduled earlier than 10 days
after the service of the notice to appear.” For §1229(b)(1)
to have any meaning, the “notice to appear” must specify
the time and place that the noncitizen, and his counsel,
must appear at the removal hearing. Otherwise, the
Government could serve a document labeled “notice to
appear” without listing the time and location of the hear-
ing and then, years down the line, provide that infor-
mation a day before the removal hearing when it becomes
available. Under that view of the statute, a noncitizen
theoretically would have had the “opportunity to secure
counsel,” but that opportunity will not be meaningful if,
given the absence of a specified time and place, the noncit-
izen has minimal time and incentive to plan accordingly,
and his counsel, in turn, receives limited notice and time
to prepare adequately. It therefore follows that, if a “no-
tice to appear” for purposes of §1229(b)(1) must include
the time-and-place information, a “notice to appear” for
purposes of the stop-time rule under §1229b(d)(1) must as
well. After all, “it is a normal rule of statutory construc-
tion that identical words used in different parts of the
same act are intended to have the same meaning.”
Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560, 571
(2012) (internal quotation marks omitted).6
——————
6 The dissent argues that, if a notice to appear must furnish time-and-
place information, the Government “may be forced by the Court’s
interpretation to guess that the hearing will take place far in the
future, only to learn shortly afterwards that the hearing is in fact
imminent.” Post, at 14. In such a scenario, the dissent hypothesizes, a
noncitizen would be “lulled into a false sense of security” and thus
would have little meaningful opportunity to secure counsel and prepare
12 PEREIRA v. SESSIONS
Opinion of the Court
Finally, common sense compels the conclusion that a
notice that does not specify when and where to appear for
a removal proceeding is not a “notice to appear” that trig-
gers the stop-time rule. If the three words “notice to ap-
pear” mean anything in this context, they must mean that,
at a minimum, the Government has to provide noncitizens
“notice” of the information, i.e., the “time” and “place,” that
would enable them “to appear” at the removal hearing in
the first place. Conveying such time-and-place infor-
mation to a noncitizen is an essential function of a notice
to appear, for without it, the Government cannot reason-
ably expect the noncitizen to appear for his removal pro-
ceedings. To hold otherwise would empower the Govern-
ment to trigger the stop-time rule merely by sending
noncitizens a barebones document labeled “Notice to
Appear,” with no mention of the time and place of the
removal proceedings, even though such documents would
do little if anything to facilitate appearance at those pro-
ceedings.7 “ ‘We are not willing to impute to Congress . . .
——————
adequately. Ibid. But nothing in our interpretation of the statute
“force[s]” the Government to guess when and where a hearing will take
place, ibid., nor does our interpretation prevent DHS and the Immigra-
tion Courts from working together to streamline the scheduling of
removal proceedings, see infra, at 18–19. Far from “lull[ing]” nonciti-
zens into a false sense of security, post, at 14, our reading (unlike the
Government’s and the dissent’s) still gives meaning to a noncitizen’s
“opportunity to secure counsel before the first [removal] hearing date,”
§1229(b)(1), by informing the noncitizen that the Government is com-
mitted to moving forward with removal proceedings at a specific time
and place. Equipped with that knowledge, a noncitizen has an incen-
tive to obtain counsel and prepare for his hearing.
7 At oral argument, the Government conceded that a blank piece of
paper would not suffice to trigger the stop-time rule because (in its
view) such a hypothetical notice would fail to specify the charges
against the noncitizen. Tr. of Oral Arg. 39–40 (arguing that notice to
appear must “tell the alien what proceedings he must appear for and
why he must appear for them”). The dissent also endorses the view
Cite as: 585 U. S. ____ (2018) 13
Opinion of the Court
such [a] contradictory and absurd purpose,’ ” United States
v. Bryan, 339 U.S. 323, 342 (1950), particularly where
doing so has no basis in the statutory text.
III
Straining to inject ambiguity into the statute, the Gov-
ernment and the dissent advance several overlapping
arguments. None is persuasive.
A
First, the Government posits that §1229(a) “is not worded
in the form of a definition” and thus cannot circum-
scribe what type of notice counts as a “notice to appear” for
purposes of the stop-time rule. Brief for Respondent 32.
Section 1229(a), however, does speak in definitional terms,
at least with respect to the “time and place at which the
proceedings will be held”: It specifically provides that the
notice described under paragraph (1) is “referred to as a
‘notice to appear,’ ” which in context is quintessential
definitional language.8 It then defines that term as a
——————
that a notice to appear “can also be understood to serve primarily as a
charging document.” Post, at 14–15. But neither the Government nor
the dissent offers any convincing basis, much less one rooted in the
statutory text, for treating time-and-place information as any less
crucial than charging information for purposes of triggering the stop-
time rule. Furthermore, there is no reason why a notice to appear
should have only one essential function. Even if a notice to appear
functions as a “charging document,” that is not mutually exclusive with
the conclusion that a notice to appear serves another equally integral
function: telling a noncitizen when and where to appear. At bottom,
the Government’s self-serving position that a notice to appear must
specify charging information, but not the time-and-place information,
reveals the arbitrariness inherent in its atextual approach to the stop-
time rule.
8 Congress has employed similar definitional language in other statu-
tory schemes. See, e.g., 21 U.S. C. §356(b)(1) (creating new class of
“fast track product[s]” by setting out drug requirements and providing:
“In this section, such a drug is referred to as a ‘fast track product’ ”);
14 PEREIRA v. SESSIONS
Opinion of the Court
“written notice” that, as relevant here, “specif[ies] . . . [t]he
time and place at which the [removal] proceedings will be
held.” §1229(a)(1)(G)(i). Thus, when the term “notice to
appear” is used elsewhere in the statutory section, includ-
ing as the trigger for the stop-time rule, it carries with it
the substantive time-and-place criteria required by
§1229(a).
Resisting this straightforward understanding of the
text, the dissent posits that “§1229(a)(1)’s language can be
understood to define what makes a notice to appear com-
plete.” Post, at 10 (emphasis in original). In the dissent’s
view, a defective notice to appear is still a “notice to ap-
pear” even if it is incomplete—much like a three-wheeled
Chevy is still a car. Post, at 10–11. The statutory text
proves otherwise. Section 1229(a)(1) does not say a “notice
to appear” is “complete” when it specifies the time and
place of the removal proceedings. Rather, it defines a
“notice to appear” as a “written notice” that “specif[ies],” at
a minimum, the time and place of the removal proceed-
ings. §1229(a)(1)(G)(i). Moreover, the omission of time-
and-place information is not, as the dissent asserts, some
trivial, ministerial defect, akin to an unsigned notice of
appeal. Cf. Becker v. Montgomery, 532 U.S. 757, 763, 768
(2001). Failing to specify integral information like the
time and place of removal proceedings unquestionably
would “deprive [the notice to appear] of its essential char-
acter.” Post, at 12, n. 5; see supra, at 12–13, n. 7.9
——————
§356(a)(1) (“In this section, such a drug is referred to as a ‘break-
through therapy’ ”); 38 U.S. C. §7451(a)(2) (“hereinafter in this section
referred to as ‘covered positions’ ”); 42 U.S. C. §285g–4(b) (“hereafter in
this section referred to as ‘medical rehabilitation’ ”).
9 The dissent maintains that Congress’ decision to make the stop-time
rule retroactive to certain pre-IIRIRA “orders to show cause” “sheds
considerable light on the question presented” because orders to show
cause did not necessarily include time-and-place information. Post, at
Cite as: 585 U. S. ____ (2018) 15
Opinion of the Court
B
The Government and the dissent next contend that
Congress’ use of the word “under” in the stop-time rule
renders the statute ambiguous. Brief for Respondent 22–
23; post, at 4–5. Recall that the stop-time rule provides
that “any period of . . . continuous physical presence” is
“deemed to end . . . when the alien is served a notice to
appear under section 1229(a).” §1229b(d)(1)(A). According
to the Government, the word “under” in that provision
means “subject to,” “governed by,” or “issued under the
authority of.” Brief for Respondent 24. The dissent offers
yet another alternative, insisting that “under” can also
mean “authorized by.” Post, at 4. Those definitions, the
Government and dissent maintain, support the BIA’s view
that the stop-time rule applies so long as DHS serves a
notice that is “authorized by,” or “subject to or governed
by, or issued under the authority of ” §1229(a), even if the
notice bears none of the time-and-place information re-
quired by that provision. See Brief for Respondent 24;
post, at 4–5.
We disagree. It is, of course, true that “[t]he word ‘un-
der’ is [a] chameleon ” that “ ‘must draw its meaning from
its context.’ ” Kucana v. Holder, 558 U.S. 233, 245 (2010)
(quoting Ardestani v. INS, 502 U.S. 129, 135 (1991)). But
nothing in the text or context here supports either the
Government’s or the dissent’s preferred definition of “un-
der.” Based on the plain language and statutory context
discussed above, we think it obvious that the word “un-
——————
6–7. That argument compares apples to oranges. Even if the stop-time
rule sometimes applies retroactively to an order to show cause, that
provides scant support for the dissent’s view that, under the new post-
IIRIRA statutory regime, an entirely different document called a
“notice to appear,” which, by statute, must specify the time and place of
removal proceedings, see §1229(a)(1)(G)(i), need not include such
information to trigger the stop-time rule.
16 PEREIRA v. SESSIONS
Opinion of the Court
der,” as used in the stop-time rule, can only mean “in
accordance with” or “according to,” for it connects the stop-
time trigger in §1229b(d)(1) to a “notice to appear” that
contains the enumerated time-and-place information
described in §1229(a)(1)(G)(i). See 18 Oxford English
Dictionary 950 (2d ed. 1989) (defining “under” as “[i]n
accordance with”); Black’s Law Dictionary 1525 (6th ed.
1990) (defining “under” as “according to”). So construed,
the stop-time rule applies only if the Government serves a
“notice to appear” “[i]n accordance with” or “according to”
the substantive time-and-place requirements set forth in
§1229(a). See Kirtsaeng v. John Wiley & Sons, Inc., 568
U.S. 519, 530 (2013) (internal quotation marks omitted).
Far from generating any “degree of ambiguity,” post, at 4,
the word “under” provides the glue that bonds the stop-
time rule to the substantive time-and-place requirements
mandated by §1229(a).
C
The Government argues that surrounding statutory
provisions reinforce its preferred reading. See Brief for
Respondent 25–27. It points, for instance, to two separate
provisions relating to in absentia removal orders:
§1229a(b)(5)(A), which provides that a noncitizen may be
removed in absentia if the Government has provided
“written notice required under paragraph (1) or (2) of
section 1229(a)”; and §1229a(b)(5)(C)(ii), which provides
that, once an in absentia removal order has been entered,
the noncitizen may seek to reopen the proceeding if, inter
alia, he “demonstrates that [he] did not receive notice in
accordance with paragraph (1) or (2) of section 1229(a).”
According to the Government, those two provisions use the
distinct phrases “required under” and “in accordance with”
as shorthand for a notice that satisfies §1229(a)(1)’s re-
quirements, whereas the stop-time rule uses the phrase
“under section 1229(a)” to encompass a different type of
Cite as: 585 U. S. ____ (2018) 17
Opinion of the Court
notice that does not necessarily include the information
outlined in §1229(a)(1). See Brief for Respondent 25–26.
That logic is unsound. The Government essentially argues
that phrase 1 (“written notice required under paragraph
(1) . . . of section 1229(a)”) and phrase 2 (“notice in accord-
ance with paragraph (1) . . . of section 1229(a)”) can refer
to the same type of notice even though they use entirely
different words, but that phrase 3 (“notice to appear under
section 1229(a)”) cannot refer to that same type of notice
because it uses words different from phrases 1 and 2. But
the Government offers no convincing reason why that is
so. The far simpler explanation, and the one that com-
ports with the actual statutory language and context, is
that each of these three phrases refers to notice satisfying,
at a minimum, the time-and-place criteria defined in
§1229(a)(1).
Equally unavailing is the Government’s invocation of
§1229a(b)(7). Brief for Respondent 26–27. Under that
provision, a noncitizen who is ordered removed in absentia
is ineligible for various forms of discretionary relief for a
10-year period if the noncitizen, “at the time of the notice
described in paragraph (1) or (2) of section 1229(a) of [Title
8], was provided oral notice . . . of the time and place of the
proceedings” and “of the consequences . . . of failing, other
than because of exceptional circumstances,” to appear.
§1229a(b)(7). The Government argues that the express
reference to “the time and place of the proceedings” in
§1229a(b)(7) shows that, when Congress wants to attach
substantive significance to whether a noncitizen is given
information about the specific “time and place” of a re-
moval proceeding, it knows exactly how to do so. Brief for
Respondent 26–27. But even if §1229a(b)(7) may impose
harsher consequences on noncitizens who fail to appear at
removal proceedings after having specifically received oral
notice of the time and place of such proceedings, that
reveals nothing about the distinct question here—i.e.,
18 PEREIRA v. SESSIONS
Opinion of the Court
whether Congress intended the stop-time rule to apply
when the Government fails to provide written notice of the
time and place of removal proceedings. As to that ques-
tion, the statute makes clear that Congress fully intended
to attach substantive significance to the requirement that
noncitizens be given notice of at least the time and place of
their removal proceedings. A document that fails to in-
clude such information is not a “notice to appear under
section 1229(a)” and thus does not trigger the stop-time
rule.
D
Unable to find sure footing in the statutory text, the
Government and the dissent pivot away from the plain
language and raise a number of practical concerns. These
practical considerations are meritless and do not justify
departing from the statute’s clear text. See Burrage v.
United States, 571 U.S. 204, 218 (2014).
The Government, for its part, argues that the “adminis-
trative realities of removal proceedings” render it difficult
to guarantee each noncitizen a specific time, date, and
place for his removal proceedings. See Brief for Respond-
ent 48. That contention rests on the misguided premise
that the time-and-place information specified in the notice
to appear must be etched in stone. That is incorrect. As
noted above, §1229(a)(2) expressly vests the Government
with power to change the time or place of a noncitizen’s
removal proceedings so long as it provides “written notice
. . . specifying . . . the new time or place of the proceedings”
and the consequences of failing to appear. See §1229(a)(2);
Tr. of Oral Arg. 16–19. Nothing in our decision today
inhibits the Government’s ability to exercise that statu-
tory authority after it has served a notice to appear specify-
ing the time and place of the removal proceedings.
The dissent raises a similar practical concern, which is
similarly misplaced. The dissent worries that requiring
Cite as: 585 U. S. ____ (2018) 19
Opinion of the Court
the Government to specify the time and place of removal
proceedings, while allowing the Government to change
that information, might encourage DHS to provide “arbi-
trary dates and times that are likely to confuse and con-
found all who receive them.” Post, at 8. The dissent’s
argument wrongly assumes that the Government is ut-
terly incapable of specifying an accurate date and time on a
notice to appear and will instead engage in “arbitrary”
behavior. See ibid. The Court does not embrace those
unsupported assumptions. As the Government concedes,
“a scheduling system previously enabled DHS and the
immigration court to coordinate in setting hearing dates in
some cases.” Brief for Respondent 50, n. 15; Brief for
National Immigrant Justice Center as Amicus Curiae 30–
31. Given today’s advanced software capabilities, it is
hard to imagine why DHS and immigration courts could
not again work together to schedule hearings before send-
ing notices to appear.
Finally, the dissent’s related contention that including a
changeable date would “mislead” and “prejudice” nonciti-
zens is unfounded. Post, at 8. As already explained, if the
Government changes the date of the removal proceedings,
it must provide written notice to the noncitizen,
§1229(a)(2). This notice requirement mitigates any poten-
tial confusion that may arise from altering the hearing
date. In reality, it is the dissent’s interpretation of the
statute that would “confuse and confound” noncitizens,
post, at 8, by authorizing the Government to serve notices
that lack any information about the time and place of the
removal proceedings.
E
In a last ditch effort to salvage its atextual interpreta-
tion, the Government invokes the alleged purpose and
legislative history of the stop-time rule. Brief for Re-
spondent 37–40. Even for those who consider statutory
20 PEREIRA v. SESSIONS
Opinion of the Court
purpose and legislative history, however, neither supports
the Government’s atextual position that Congress intended
the stop-time rule to apply when a noncitizen has been
deprived notice of the time and place of his removal pro-
ceedings. By the Government’s own account, Congress
enacted the stop-time rule to prevent noncitizens from
exploiting administrative delays to “buy time” during
which they accumulate periods of continuous presence.
Id., at 37–38 (citing H. R. Rep. No. 104–469, pt. 1, p. 122
(1996)). Requiring the Government to furnish time-and-
place information in a notice to appear, however, is en-
tirely consistent with that objective because, once a proper
notice to appear is served, the stop-time rule is triggered,
and a noncitizen would be unable to manipulate or delay
removal proceedings to “buy time.” At the end of the day,
given the clarity of the plain language, we “apply the
statute as it is written.” Burrage, 571 U.S., at 218.
IV
For the foregoing reasons, the judgment of the Court of
Appeals for the First Circuit is reversed, and the case is
remanded for further proceedings consistent with this
opinion.
It is so ordered.
Cite as: 585 U. S. ____ (2018) 1
KENNEDY, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–459
_________________
WESCLEY FONSECA PEREIRA, PETITIONER v.
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 21, 2018]
JUSTICE KENNEDY, concurring.
I agree with the Court’s opinion and join it in full.
This separate writing is to note my concern with the
way in which the Court’s opinion in Chevron U. S. A. Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), has come to be understood and applied. The appli-
cation of that precedent to the question presented here by
various Courts of Appeals illustrates one aspect of the
problem.
The first Courts of Appeals to encounter the question
concluded or assumed that the notice necessary to trigger
the stop-time rule found in 8 U.S. C. §1229b(d)(1) was not
“perfected” until the immigrant received all the infor-
mation listed in §1229(a)(1). Guamanrrigra v. Holder, 670
F.3d 404, 410 (CA2 2012) (per curiam); see also Dababneh
v. Gonzales, 471 F.3d 806, 809 (CA7 2006); Garcia-
Ramirez v. Gonzales, 423 F.3d 935, 937, n. 3 (CA9 2005)
(per curiam).
That emerging consensus abruptly dissolved not long
after the Board of Immigration Appeals (BIA) reached a
contrary interpretation of §1229b(d)(1) in Matter of Cama-
rillo, 25 I. & N. Dec. 644 (2011). After that administrative
ruling, in addition to the decision under review here, at
least six Courts of Appeals, citing Chevron, concluded that
§1229b(d)(1) was ambiguous and then held that the BIA’s
2 PEREIRA v. SESSIONS
KENNEDY, J., concurring
interpretation was reasonable. See Moscoso-Castellanos v.
Lynch, 803 F.3d 1079, 1083 (CA9 2015); O’Garro v. United
States Atty. Gen., 605 Fed. Appx. 951, 953 (CA11 2015)
(per curiam); Guaman-Yuqui v. Lynch, 786 F.3d 235, 239–
240 (CA2 2015) (per curiam); Gonzalez-Garcia v. Holder,
770 F.3d 431, 434–435 (CA6 2014); Yi Di Wang v. Holder,
759 F.3d 670, 674–675 (CA7 2014); Urbina v. Holder, 745
F.3d 736, 740 (CA4 2014). But see Orozco-Velasquez v.
Attorney General United States, 817 F.3d 78, 81–82 (CA3
2016). The Court correctly concludes today that those
holdings were wrong because the BIA’s interpretation
finds little support in the statute’s text.
In according Chevron deference to the BIA’s interpreta-
tion, some Courts of Appeals engaged in cursory analysis
of the questions whether, applying the ordinary tools of
statutory construction, Congress’ intent could be dis-
cerned, 467 U.S., at 843, n. 9, and whether the BIA’s
interpretation was reasonable, id., at 845. In Urbina v.
Holder, for example, the court stated, without any further
elaboration, that “we agree with the BIA that the relevant
statutory provision is ambiguous.” 745 F.3d, at 740. It
then deemed reasonable the BIA’s interpretation of the
statute, “for the reasons the BIA gave in that case.” Ibid.
This analysis suggests an abdication of the Judiciary’s
proper role in interpreting federal statutes.
The type of reflexive deference exhibited in some of
these cases is troubling. And when deference is applied to
other questions of statutory interpretation, such as an
agency’s interpretation of the statutory provisions that
concern the scope of its own authority, it is more troubling
still. See Arlington v. FCC, 569 U.S. 290, 327 (2013)
(ROBERTS, C. J., dissenting) (“We do not leave it to the
agency to decide when it is in charge”). Given the con-
cerns raised by some Members of this Court, see, e.g., id.,
at 312–328; Michigan v. EPA, 576 U. S. ___, ___ (2015)
(THOMAS, J., concurring); Gutierrez-Brizuela v. Lynch, 834
Cite as: 585 U. S. ____ (2018) 3
KENNEDY, J., concurring
F. 3d 1142, 1149–1158 (CA10 2016) (Gorsuch, J., concur-
ring), it seems necessary and appropriate to reconsider, in
an appropriate case, the premises that underlie Chevron
and how courts have implemented that decision. The
proper rules for interpreting statutes and determining
agency jurisdiction and substantive agency powers should
accord with constitutional separation-of-powers principles
and the function and province of the Judiciary. See, e.g.,
Arlington, supra, at 312–316 (ROBERTS, C. J., dissenting).
Cite as: 585 U. S. ____ (2018) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–459
_________________
WESCLEY FONSECA PEREIRA, PETITIONER v.
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[June 21, 2018]
JUSTICE ALITO, dissenting.
Although this case presents a narrow and technical
issue of immigration law, the Court’s decision implicates
the status of an important, frequently invoked, once cele-
brated, and now increasingly maligned precedent, namely,
Chevron U. S. A. Inc. v. Natural Resources Defense Coun-
cil, Inc., 467 U.S. 837 (1984). Under that decision, if a
federal statute is ambiguous and the agency that is au-
thorized to implement it offers a reasonable interpreta-
tion, then a court is supposed to accept that interpreta-
tion. Here, a straightforward application of Chevron
requires us to accept the Government’s construction of the
provision at issue. But the Court rejects the Government’s
interpretation in favor of one that it regards as the best
reading of the statute. I can only conclude that the Court,
for whatever reason, is simply ignoring Chevron.
I
As amended, the Immigration and Nationality Act
generally requires the Government to remove nonperma-
nent resident aliens who overstay the terms of their ad-
mission into this country. See 8 U.S. C. §§1227(a)(1)(B)–
(C). But under certain circumstances, the Government
may decide to cancel their removal instead. See §1229b.
To be eligible for such relief, an alien must demonstrate
2 PEREIRA v. SESSIONS
ALITO, J., dissenting
that he or she “has been physically present in the United
States for a continuous period of not less than 10 years.”
§1229b(b)(1)(A). “For purposes of ” that rule, however,
“any period of . . . continuous physical presence in the
United States shall be deemed to end . . . when the alien is
served a notice to appear under section 1229(a) of this
title.” §1229b(d)(1). That language acts as a stop-time
rule, preventing the continuous-presence clock from con-
tinuing to run once an alien is served with a notice to
appear.
The question presented by this case is whether the stop-
time rule is triggered by service of a notice to appear that
is incomplete in some way. A provision of the amended
Immigration and Nationality Act requires that the Gov-
ernment serve an alien who it seeks to remove with a
notice to appear “specifying” a list of things, including
“[t]he nature of the proceedings against the alien,” “[t]he
legal authority under which the proceedings are conducted,”
“[t]he acts or conduct alleged to be in violation of law,”
“[t]he charges against the alien and the statutory provi-
sions alleged to have been violated,” and (what is relevant
here) “[t]he time and place at which the proceedings will
be held.” §§1229(a)(1)(A), (B), (C), (D), (G)(i).
Petitioner Wescley Pereira is a Brazilian citizen who
entered the United States lawfully in 2000 but then ille-
gally overstayed his nonimmigrant visa. In 2006, the
Government caused him to be served in person with a
document styled as a notice to appear for removal proceed-
ings. Pereira concedes that he overstayed his visa and is
thus removable, but he argues that he is nonetheless
eligible for cancellation of removal because he has now
been in the country continuously for more than 10 years.
He contends that the notice served on him in 2006 did not
qualify as a notice to appear because it lacked one piece of
information that such a notice is supposed to contain,
namely, the time at which his removal proceedings were to
Cite as: 585 U. S. ____ (2018) 3
ALITO, J., dissenting
be held. Thus, Pereira contends, that notice did not trig-
ger the stop-time rule, and the clock continued to run.
The Board of Immigration Appeals (BIA) has rejected
this interpretation of the stop-time rule in the past. It has
held that “[a]n equally plausible reading” is that the stop-
time rule “merely specifies the document the [Govern-
ment] must serve on the alien to trigger the ‘stop-time’
rule and does not impose substantive requirements for a
notice to appear to be effective in order for that trigger to
occur.” In re Camarillo, 25 I. & N. Dec. 644, 647 (2011). It
therefore held in this case that Pereira is ineligible for
cancellation of removal.
II
A
Pereira, on one side, and the Government and the BIA,
on the other, have a quasi-metaphysical disagreement
about the meaning of the concept of a notice to appear. Is
a notice to appear a document that contains certain essen-
tial characteristics, namely, all the information required
by §1229(a)(1), so that any notice that omits any of that
information is not a “notice to appear” at all? Or is a
notice to appear a document that is conventionally called
by that name, so that a notice that omits some of the
information required by §1229(a)(1) may still be regarded
as a “notice to appear”?
Picking the better of these two interpretations might
have been a challenge in the first instance. But the Court
did not need to decide that question, for under Chevron we
are obligated to defer to a Government agency’s interpre-
tation of the statute that it administers so long as that
interpretation is a “ ‘permissible’ ” one. INS v. Aguirre-
Aguirre, 526 U.S. 415, 424 (1999). All that is required is
that the Government’s view be “reasonable”; it need not be
“the only possible interpretation, nor even the interpreta-
tion deemed most reasonable by the courts.” Entergy
4 PEREIRA v. SESSIONS
ALITO, J., dissenting
Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 (2009).
Moreover, deference to the Government’s interpretation
“is especially appropriate in the immigration context”
because of the potential foreign-policy implications.
Aguirre-Aguirre, supra, at 425. In light of the relevant
text, context, statutory history, and statutory purpose,
there is no doubt that the Government’s interpretation of
the stop-time rule is indeed permissible under Chevron.
B
By its terms, the stop-time rule is consistent with the
Government’s interpretation. As noted, the stop-time rule
provides that “any period of . . . continuous physical pres-
ence in the United States shall be deemed to end . . . when
the alien is served a notice to appear under section 1229(a)
of this title.” §1229b(d)(1). A degree of ambiguity arises
from Congress’s use of the word “under,” for as the Court
recognizes, “ ‘[t]he word “under” is [a] chameleon,’ ” ante, at
15, having “ ‘many dictionary definitions’ ” and no “uni-
form, consistent meaning,” Kirtsaeng v. John Wiley &
Sons, Inc., 568 U.S. 519, 531 (2013). Everyone agrees,
however, that “under” is often used to mean “authorized
by.” See, e.g., Webster’s New World College Dictionary
1453 (3d ed. 1997) (“authorized . . . by”); American Herit-
age Dictionary 1945 (3d ed. 1992) (“With the authorization
of ”); see also Brief for Respondent 24 (agreeing that “un-
der” can mean “subject to,” “governed by,” or “issued under
the authority of”); Brief for Petitioner 28. And when the
term is used in this way, it does not necessarily mean that
the act done pursuant to that authorization was done in
strict compliance with the terms of the authorization. For
example, one might refer to a litigant’s disclosure “under”
Rule 26(a) of the Federal Rules of Civil Procedure even if
that disclosure did not comply with Rule 26(a) in every
respect. Or one might refer to regulations promulgated
“under” a statute even if a court later found those regula-
Cite as: 585 U. S. ____ (2018) 5
ALITO, J., dissenting
tions inconsistent with the statute’s text.
That use of the word “under” perfectly fits the Govern-
ment’s interpretation of the stop-time rule. The Govern-
ment served Pereira with a notice to appear “under”
§1229(a) in the sense that the notice was “authorized by”
that provision, which states that a notice to appear “shall
be given” to an alien in a removal proceeding and outlines
several rules governing such notices. On that reasonable
reading, the phrase “under section 1229(a)” acts as short-
hand for the type of document governed by §1229(a).
C
That interpretation is bolstered by the stop-time rule’s
cross-reference to “section 1229(a).” §1229b(d)(1). Pereira
interprets that cross-reference as picking up every sub-
stantive requirement that applies to notices to appear.
But those substantive requirements are found only in
§1229(a)(1). Thus, the cross-reference to “section 1229(a),”
as opposed to “section 1229(a)(1),” tends to undermine
Pereira’s interpretation, because if Congress had meant
for the stop-time rule to incorporate the substantive re-
quirements located in §1229(a)(1), it presumably would
have referred specifically to that provision and not more
generally to “section 1229(a).” We normally presume that
“[w]hen Congress want[s] to refer only to a particular
subsection or paragraph, it [says] so,” NLRB v. SW Gen-
eral, Inc., 580 U. S. ___, ___ (2017) (slip op., at 9), and it is
instructive that neighboring statutory provisions in this
case are absolutely riddled with such specific cross-
references.1 In the stop-time rule, however, Congress
chose to insert a broader cross-reference, one that refers to
the general process of serving notices to appear as a
——————
1 See, e.g., §1229a(b)(5)(A) (“paragraph (1) . . . of section 1229(a)”);
§1229a(b)(5)(C)(ii) (same); §1229a(b)(7) (same); §1229a(b)(5)(B) (“ad-
dress required under section 1229(a)(1)(F)”); see also §1229a(b)(7)
(referring to §1229(a)(1)(G)(i)’s “time and place” requirement).
6 PEREIRA v. SESSIONS
ALITO, J., dissenting
whole. See §1229(a). Thus, Pereira essentially “wants to
cherry pick from the material covered by the statutory
cross-reference. But if Congress had intended to refer to
the definition in [§1229(a)(1)] alone, it presumably would
have done so.” Cyan, Inc. v. Beaver County Employees
Retirement Fund, 583 U. S. ___, ___ (2018) (slip op., at 9).2
D
Statutory history also strongly supports the Govern-
ment’s argument that a notice to appear should trigger the
stop-time rule even if it fails to include the date and time
of the alien’s removal proceeding. When Congress enacted
the stop-time rule, it decreed that the rule should “apply
to notices to appear issued before, on, or after the date of
the enactment of this Act.” Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, §309(c)(5), 110
Stat. 3009–627. This created a problem: Up until that
point, there was no such thing as a “notice to appear,” so
the reference to “notices to appear issued before . . . this
Act” made little sense. When Congress became aware of
the problem, it responded by clarifying that the stop-time
rule should apply not only to notices to appear, but also “to
orders to show cause . . . issued before, on, or after the
date” of the clarifying amendment’s enactment. Nicara-
guan Adjustment and Central American Relief Act,
§203(1), 111 Stat. 2196, as amended 8 U.S. C. §1101 note.
That clarification sheds considerable light on the question
presented here because orders to show cause did not nec-
essarily include the date or location of proceedings (even if
——————
2 According to the Court, “the broad reference to §1229(a) is of no
consequence, because, as even the Government concedes, only para-
graph (1) bears on the meaning of a ‘notice to appear.’ ” Ante, at 10.
But that is precisely the point: If “only paragraph (1) bears on the
meaning of a ‘notice to appear,’ ” then Congress’s decision to refer to
§1229(a) more broadly indicates that it meant to do something other
than to pick up the substantive requirements of §1229(a)(1).
Cite as: 585 U. S. ____ (2018) 7
ALITO, J., dissenting
they otherwise served a function similar to that now
served by notices to appear). See 8 U.S. C.
§1252b(a)(2)(A) (1994 ed.).
That statutory history supports the Government’s inter-
pretation twice over. First, it demonstrates that when it
comes to triggering the stop-time rule, Congress attached
no particular significance to the presence (or absence) of
information about the date and time of a removal proceed-
ing. Congress was more than happy for the stop-time rule
to be activated either by notices to appear or by orders to
show cause, even though the latter often lacked any in-
formation about the date and time of proceedings.
Second, and even more important, the statutory history
also shows that Congress clearly thought of orders to show
cause as the functional equivalent of notices to appear for
purposes of the stop-time rule. After an initially confusing
reference to “notices to appear” issued before the creation
of the stop-time rule, Congress clarified that it had meant
to refer to “orders to show cause.” By equating orders to
show cause with notices to appear, Congress indicated
that when the stop-time rule refers to “a notice to appear,”
it is referring to a category of documents that do not nec-
essarily provide the date and time of a future removal
proceeding.3
E
Finally, Pereira’s contrary interpretation leads to conse-
quences that clash with any conceivable statutory pur-
pose. Pereira’s interpretation would require the Govern-
ment to include a date and time on every notice to appear
that it issues. But at the moment, the Government lacks
the ability to do that with any degree of accuracy. The
——————
3 Although the Court charges me with “compar[ing] apples to oranges,”
ante, at 15, n. 9, Congress was the one that equated orders to show
cause and notices to appear for purposes of the stop-time rule. By
ignoring that decision, the Court rewrites the statute to its taste.
8 PEREIRA v. SESSIONS
ALITO, J., dissenting
Department of Homeland Security sends out the initial
notice to appear, but the removal proceedings themselves
are scheduled by the Immigration Court, which is part of
the Department of Justice. See 8 CFR §1003.18(a) (2018).
The Department of Homeland Security cannot dictate the
scheduling of a matter on the docket of the Immigration
Court, and at present, the Department of Homeland Secu-
rity generally cannot even access the Immigration Court’s
calendar. In re Camarillo, 25 I. & N. Dec., at 648; Tr. of
Oral Arg. 52–53. The Department of Homeland Security
may thus be hard pressed to include on initial notices to
appear a hearing date that is anything more than a rough
estimate subject to considerable change. See §1229(a)(2);
see also ante, at 18 (disclaiming any effect on the Govern-
ment’s ability to change initial hearing dates).
Including an estimated and changeable date, however,
may do much more harm than good. See Gonzalez-Garcia
v. Holder, 770 F.3d 431, 434–435 (CA6 2014). It is likely
to mislead many recipients and to prejudice those who
make preparations on the assumption that the initial date
is firm. And it forces the Government to go through the
pointless exercise of first including a date that it knows
may very well be altered and then changing it once the
real date becomes clear. Such a system serves nobody’s
interests.
Statutory interpretation is meant to be “a holistic en-
deavor,” and sometimes language “that may seem ambig-
uous in isolation” becomes clear because “only one of the
permissible meanings produces a substantive effect that is
compatible with the rest of the law.” United Sav. Assn. of
Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U.S.
365, 371 (1988). The real-world effects produced by Perei-
ra’s interpretation—arbitrary dates and times that are
likely to confuse and confound all who receive them—
illustrate starkly the merits of the Government’s alterna-
tive construction.
Cite as: 585 U. S. ____ (2018)
9
ALITO, J., dissenting
III
Based on the relevant text, context, statutory history,
and statutory purpose, the Government makes a convinc-
ing case that the stop-time rule can be triggered even by a
notice to appear that omits the date and time of a removal
proceeding. But the Court holds instead that in order “to
trigger the stop-time rule, the Government must serve a
notice to appear that, at the very least, ‘specif[ies]’ the
‘time and place’ of the removal proceedings.” Ante, at 9.
According to the Court, that conclusion is compelled by the
statutory text, the statutory context, and “common sense.”
Ante, at 12. While the Court’s interpretation may be
reasonable, the Court goes much too far in saying that it is
the only reasonable construction.
A
Start with the text. As noted, the stop-time rule pro-
vides that “any period of . . . continuous physical presence
in the United States shall be deemed to end . . . when the
alien is served a notice to appear under section 1229(a).”
§1229b(d)(1). The Court does not dispute that it is entirely
consistent with standard English usage to read this
language as the Government and I do. See ante, at 15. It
therefore follows that the stop-time rule itself does not
foreclose the Government’s interpretation.
That leaves only §1229(a)(1), which specifies the infor-
mation that a notice to appear must contain. The Court’s
treatment of this provision contradicts itself. On the one
hand, the Court insists that this provision is “definitional”
and that it sets out the essential characteristics without
which a notice is not a notice to appear. Ante, at 13. But
on the other hand, the Court states that it “leaves for
another day whether a putative notice to appear that
omits any of the other categories of information enumer-
ated in §1229(a)(1) triggers the stop-time rule.” Ante, at 8,
n. 5. The Court cannot have it both ways. If §1229(a)(1) is
10 PEREIRA v. SESSIONS
ALITO, J., dissenting
definitional and sets out the essential characteristics of a
notice to appear, then the omission of any required item of
information makes a putative notice to appear a nullity.
So if the Court means what it says—that its interpretation
of §1229(a)(1)’s language leaves open the consequences of
omitting other categories of information—that is tanta-
mount to admitting that §1229(a)(1) itself cannot foreclose
the Government’s interpretation.4
In any event, the Government’s interpretation can
easily be squared with the text of §1229(a)(1). That provi-
sion states that a “written notice (in this section referred to
as a ‘notice to appear’) shall be given in person to the alien
. . . specifying” 10 categories of information, including the
“time and place” of the removal proceeding. §1229(a)(1)
(emphasis added). According to Pereira, that language
cinches the case against the Government’s interpretation:
By equating a “notice to appear” with a “written notice . . .
[that] specif[ies]” the relevant categories of information,
§1229(a)(1) establishes that a notice lacking any of those
10 pieces of information cannot qualify as a “notice to
appear” and thus cannot trigger the stop-time rule. In
Pereira’s eyes, §1229(a)(1) defines what a notice to appear
is, and most of the Court’s opinion is to the same effect.
This may be a plausible interpretation of §1229(a)(1)’s
language, but it is not the only one. It is at least as rea-
sonable to read that language as simply giving a name to
the new type of notice to which that provision refers. Or
to put the point another way, §1229(a)(1)’s language can
be understood to define what makes a notice to appear
complete. See In re Camarillo, supra, at 647. Under that
——————
4 Nor can the Court get away with labeling its self-contradictions as
“judicial restraint.” Ante, at 8, n. 5. Either §1229(a)(1) sets out the
essential characteristics of a notice to appear or it does not; the Court
cannot stop at a halfway point unsupported by either text or logic while
maintaining that its resting place is “clear” in light of the statutory
text. Ante, at 9.
Cite as: 585 U. S. ____ (2018) 11
ALITO, J., dissenting
interpretation, a notice that omits some of the information
required by §1229(a)(1) might still be a “notice to appear.”
We often use language in this way. In everyday life, a
person who sees an old Chevy with three wheels in a
junkyard would still call it a car. Language is often used
the same way in the law. Consider the example of a notice
of appeal. Much like a notice to appear, a notice of appeal
must meet several substantive requirements; all notices of
appeal, for example, “must be signed.” Fed. Rule Civ.
Proc. 11(a). So what happens if a notice of appeal is in-
complete in some way—say, because it is unsigned but
otherwise impeccable? If a court clerk wanted to point out
the lack of a signature to an attorney, the clerk is far more
likely to say, “there is a problem with your notice of ap-
peal,” than to say, “there is a problem with this document
you filed; it’s not signed and therefore I don’t know what
to call it, but I can’t call it a notice of appeal because it is
unsigned.”
Furthermore, just because a legal document is incom-
plete, it does not necessarily follow that it is without legal
effect. Consider again the notice of appeal. As a general
matter, an appeal “may be taken” in a civil case “only by
filing a notice of appeal” “within 30 days after entry of the
judgment or order appealed from.” Fed. Rules App. Proc.
3(a), 4(a)(1)(A). While an unsigned notice of appeal does
not meet the substantive requirements set out in Rule 11,
in Becker v. Montgomery, 532 U.S. 757, 763, 768 (2001),
this Court unanimously held that a litigant who filed a
timely but unsigned notice of appeal still beat the 30-day
clock for filing appeals. As we explained, “imperfections in
noticing an appeal should not be fatal where no genuine
doubt exists about who is appealing, from what judgment,
to which appellate court.” Id., at 767.
If Rule 11 of the Federal Rules of Civil Procedure can be
read in this way, it is not unreasonable to do the same
with §1229(a)(1). And in trying to distinguish an empty
12 PEREIRA v. SESSIONS
ALITO, J., dissenting
signature line on a notice of appeal as a “trivial, ministe-
rial defect,” ante, at 14, the Court gives the game away by
once again assuming its own conclusion. Whether the
omission of the date and time certain on a notice to appear
is essential for present purposes is the central issue in this
case, and the Court gives no textually based reason to
think that it is. The Government could reasonably con-
clude that a notice to appear that omits the date and time
of a proceeding is still a notice to appear (albeit a defective
one), much in the same way that a complaint without the
e-mail address of the signer is still a complaint (albeit a
defective one, see Rule 11(a)), or a clock missing the num-
ber “8” is still a clock (albeit a defective one).
Pereira and the Court are right that §1229(a)(1) sets out
the substantive requirements for notices to appear, but
that fact alone does not control whether an incomplete
notice to appear triggers the stop-time rule.5
B
With the text of both the stop-time rule and §1229(a)(1)
irreducibly ambiguous, the Court must next look to two
neighboring provisions to support its conclusion that its
interpretation is the only reasonable one. Neither provi-
sion is sufficient.
The Court first observes that the second paragraph of
§1229(a) allows the Government to move or reschedule a
removal proceeding unilaterally and then to inform the
alien of “the new time or place of the proceedings.”
——————
5 Of course, courts should still demand that the Government justify
why whatever is left off a notice to appear does not deprive it of its
essential character as a “notice to appear.” As the Government rightly
concedes, for example, a blank sheet of paper would not constitute a
“notice to appear.” Tr. of Oral Arg. 39; see Brief for Respondent 35–36.
But for all the reasons the Government gives, omission of the date and
time of a future removal proceeding is not, by itself, enough to turn a
notice to appear into something else.
Cite as: 585 U. S. ____ (2018) 13
ALITO, J., dissenting
§1229(a)(2)(A)(i). “By allowing for a ‘change or postpone-
ment’ of the proceedings to a ‘new time or place,’ ” the
Court reasons, “paragraph (2) presumes that the Govern-
ment has already served a ‘notice to appear . . .’ that speci-
fied a time and place as required.” Ante, at 10.
That is entirely correct—and entirely irrelevant. No one
doubts that §1229(a)(1) requires that a notice to appear
include the “time and place” of the removal proceeding.
See §1229(a)(1)(G)(i). Indeed, that is common ground
between the two parties. See Brief for Petitioner 10–11;
Brief for Respondent 3. Paragraph (2) undoubtedly as-
sumes that notices to appear will state the “time and
place” of the removal proceeding as required by
§1229(a)(1), but it has nothing to say about whether the
failure to include that information affects the operation of
the stop-time rule. By suggesting otherwise, the Court is
merely reasoning backwards from its conclusion.
The other provision cited by the Court, §1229(b)(1), is no
more helpful. As the Court explains, §1229(b)(1) generally
precludes the Government from scheduling a hearing date
“ ‘earlier than 10 days after the service of the notice to
appear’ ” in order to give the alien “ ‘the opportunity to
secure counsel.’ ” Ante, at 11. Unless a notice to appear
includes the time and place of the hearing, the Court frets,
“the Government could serve a document labeled ‘notice to
appear’ without listing the time and location of the hear-
ing and then, years down the line, provide that infor-
mation a day before the removal hearing when it becomes
available.” Ibid. But that remote and speculative possi-
bility depends entirely on the Immigration Court’s allow-
ing a removal proceeding to go forward only one day after
an alien (and the Government) receives word of a hearing
date. See 8 CFR §1003.18(a). Even assuming that such
an unlikely event were to come to pass, the court’s decision
would surely be subject to review on appeal. See generally
8 CFR §1003.1, 8 U.S. C. §1252. Regardless, the Court’s
14 PEREIRA v. SESSIONS
ALITO, J., dissenting
interpretation of the stop-time rule would not prevent a
similar type of problem from arising. When the Govern-
ment sends an initial notice to appear from now on, it may
be forced by the Court’s interpretation to guess that the
hearing will take place far in the future, only to learn
shortly afterwards that the hearing is in fact imminent.
An alien lulled into a false sense of security by that initial
notice to appear will have as little meaningful “ ‘opportun-
ity to secure counsel’ ” and “time to prepare adequately,”
ante, at 11, as one who initially received a notice to appear
without any hearing date.
C
Finally, the Court turns to “common sense” to support
its preferred reading of the text. According to the Court, it
should be “obvious” to anyone that “a notice that does not
specify when and where to appear for a removal proceed-
ing is not a ‘notice to appear.’ ” Ante, at 2, 12. But what
the Court finds so obvious somehow managed to elude
every Court of Appeals to consider the question save one.
See Moscoso-Castellanos v. Lynch, 803 F.3d 1079, 1083
(CA9 2015); O’Garro v. U. S. Attorney General, 605 Fed.
Appx. 951, 953 (CA11 2015) (per curiam); Guaman-Yuqui
v. Lynch, 786 F.3d 235, 240 (CA2 2015) (per curiam);
Gonzalez-Garcia v. Holder, 770 F.3d 431, 434–435 (CA6
2014); Yi Di Wang v. Holder, 759 F.3d 670, 675 (CA7
2014); Urbina v. Holder, 745 F.3d 736, 740 (CA4 2014).
That is likely because the Court’s “common sense” de-
pends on a very specific understanding of the purpose of a
notice to appear. In the Court’s eyes, notices to appear
serve primarily as a vehicle for communicating to aliens
when and where they should appear for their removal
hearings. That is certainly a reasonable interpretation
with some intuitive force behind it. But that is not the
only possible understanding or even necessarily the best
one. As the Government reasonably explains, a notice to
Cite as: 585 U. S. ____ (2018) 15
ALITO, J., dissenting
appear can also be understood to serve primarily as a
charging document. See Tr. of Oral Arg. 39–45. Indeed,
much of §1229(a)(1) reinforces that view through the
informational requirements it imposes on notices to ap-
pear. See, e.g., §1229(a)(1)(A) (“nature of the proceed-
ings”); §1229(a)(1)(B) (“legal authority” for “the proceed-
ings”); §1229(a)(1)(C) (“acts or conduct alleged”);
§1229(a)(1)(D) (“charges against the alien”); ibid. (“statu-
tory provisions alleged to have been violated”). Interpreted
in this way, a notice to appear hardly runs afoul of
“common sense” by simply omitting the date and time of a
future removal proceeding.6
Today’s decision appears even less commonsensical once
its likely consequences are taken into account. As already
noted, going forward the Government will be forced to
include an arbitrary date and time on every notice to
appear that it issues. See supra, at 7–8. Such a system
will only serve to confuse everyone involved, and the Court
offers no explanation as to why it believes otherwise.
Although the Court expresses surprise at the idea that its
opinion will “ ‘forc[e] the Government’ to guess when and
where a hearing will take place,” ante, at 12, n. 6, it is
——————
6 The Court responds to this point in two ways. First, it faults me for
failing to offer a reason “rooted in the statutory tex[t] for treating time-
and-place information as any less crucial than charging information for
purposes of triggering the stop-time rule.” Ante, at 13, n. 7. But
exactly the same criticism can be leveled against the Court’s own
reading, which noticeably fails to offer any reason “rooted in the statu-
tory text” why time-and-place information should be treated as any
more crucial than charging information for purposes of triggering the
stop-time rule. Second, the Court also observes misleadingly that
“there is no reason why a notice to appear should have only one essen-
tial function,” and that a notice to appear might thus serve the dual
purpose of both presenting charges and informing an alien “when and
where to appear.” Ibid. Of course it might, but it is also equally
reasonable to interpret a notice to appear as serving only one of those
functions. Under Chevron, it was the Government—not this Court—
that was supposed to make that interpretive call.
16 PEREIRA v. SESSIONS
ALITO, J., dissenting
undisputed that the Government currently lacks the
capability to do anything other than speculate about the
likely date and time of future removal proceedings. See
Tr. of Oral Arg. 47–49, 52–53. At most, we can hope that
the Government develops a system in the coming years
that allows it to determine likely dates and times before it
sends out initial notices to appear. But nothing in either
today’s decision or the statute can guarantee such an
outcome, so the Court is left crossing its fingers and hop-
ing for the best. Ante, at 12, n. 6, 18–19.
* * *
Once the errors and false leads are stripped away, the
most that remains of the Court’s argument is a textually
permissible interpretation consistent with the Court’s
view of “common sense.” That is not enough to show that
the Government’s contrary interpretation is unreasonable.
Choosing between these competing interpretations might
have been difficult in the first instance. But under Chev-
ron, that choice was not ours to make. Under Chevron,
this Court was obliged to defer to the Government’s
interpretation.
In recent years, several Members of this Court have
questioned Chevron’s foundations. See, e.g., ante, at 2–3
(KENNEDY, J., concurring); Michigan v. EPA, 576 U. S.
___, ___–___ (2015) (THOMAS, J., concurring) (slip op., at
1–5); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149
(CA10 2016) (Gorsuch, J., concurring). But unless the
Court has overruled Chevron in a secret decision that has
somehow escaped my attention, it remains good law.
I respectfully dissent.