The United States Law Week

Law Firm Associate Takes SCOTUS Podium for Immigrant Family

April 19, 2018, 2:12 PM

When Goodwin Procter LLP associate David Zimmer walks up to the U.S. Supreme Court podium April 23, he’ll be just one of two law firm associates arguing at the high court this term.

Even that number seems “higher than usual” to Supreme Court veteran John Elwood, of Vinson & Elkins, Washington. “I’d expect 0 or 1 in an average year,” he told Bloomberg Law.

Law firm partners and solo practitioners make more Supreme Court arguments than any other group. This term, they are scheduled to argue approximately 40 percent of cases at the high court.

Zimmer acknowledged that it takes a “leap of faith” to allow an associate to argue at the high court.

That’s a leap his firm has decided to take. As a result, Zimmer will make his Supreme Court debut arguing to keep a Brazilian native in the U.S. with his two school-aged children.

By the Numbers

This term, 163 advocates have argued—or are set to argue—at the Supreme Court on behalf of either one of the parties, or as a friend of the court.

Of those, 64 were either law firm partners or solo practitioners.

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The group with the next highest number—47—is attorneys from the U.S. Solicitor General’s Office—the government’s top lawyers at the high court.

The court frequently allows the government argument time, even when it’s not a party to the case.

On the other end of the scale are public defenders and law firm associations—each with only two arguments this term.

These numbers are more-or-less representative of a typical term at the court, court-watchers told Bloomberg Law.

Associate Victory

The only other associate to argue at the high court this term was Jonathan Herstoff, of Haug Partners, New York.

Herstoff notched his first high court argument in a civil procedure case in October.

The Supreme Court unanimously ruled in Herstoff’s favor.

Eye on First Circuit

Zimmer will try to replicate Herstoff’s success when he takes the podium during the court’s last week of oral arguments for the term.

But the process started long before that.

Zimmer, who is located in Boston, said he has a habit of keeping his eye on decisions out of the U.S. Court of Appeals for the First Circuit.

He saw Wescley Pereira’s case and thought it seemed like something the high court might be interested in.

So he reached out to the immigration attorneys who were already on the case. After talking over lunch, they agreed to let Zimmer’s firm draft the request to have the Supreme Court look at the case.

Both of those local immigration attorneys are still part of the team representing Pereira at the high court.

Cancellation of Removal

One thing that caught Zimmer’s eye about the case is the fact that the federal courts of appeals have disagreed on the proper result.

At issue is whether Pereira is eligible for “cancellation of removal” so that he can stay in the United States despite being eligible for deportation.

Cancellation of removal is a discretionary form of relief that allows an individual to stay in the U.S. if deporting them would result in extreme hardship to a family member, including U.S.-citizen children.

The attorney general is authorized to cancel removal for only 4,000 immigrants annually, according to the government’s brief.

To be eligible, the immigrant must not have been convicted of certain crimes, and he or she must show “good moral character.”

Critical to Pereira’s case, it also requires that the individual be in the U.S. for at least ten years—known as “continuous physical presence.”

In order to discourage immigrants from purposely stalling their deportation proceedings in order to reach the continuous physical presence requirement, Congress enacted the stop-time rule, the government said. That rule freezes the clock on the continuous physical presence requirement whenever the immigrant receives a “notice to appear,” indicating that the government has begun deportation proceedings.

Circuit Split

But here, the notice of appear to Pereira didn’t include statutorily required elements like a date or time to appear.

The Board of Immigration Appeals—which overseas appeals from immigration courts—said that such information isn’t necessary to stop the clock.

Several circuits, including the First Circuit here, have deferred to the BIA’s determination under what’s known as Chevron deference. That’s the idea that courts should defer to an administrative agency’s interpretation of statutes.

Other circuits have said that such deference isn’t warranted because the statute so clearly requires that all statutory elements appear in the notice to stop the continuous physical presence clock.

The Supreme Court will sort out the disagreement.

Up Next

A win for Zimmer won’t be the end of the road for Pereira, though.

Right now, the parties are just fighting over whether Pereira has met the continuous physical presence requirement to be eligible for relief, or whether the stop-time rule has left him ineligible.

But Zimmer and his team obviously think he has a strong case for being allowed to stay.

Regardless of if he’s ultimately successful, Pereira would be allowed to stay in the U.S.—with his wife and children—while that determination is being made.

How long that takes is pretty much up to the government, Zimmer said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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