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New England Law | Boston alumni Todd Pomerleau ’05, Joel MacMull ’04, and Chester Darling ’69 reflect on what it’s like—and what it means—to take a case to the highest court in the land.

A landmark decision in immigration law

Alumni-Spotlight-Todd-Pomerleau-2Todd Pomerleau ’05 began working as a public defender after graduating from New England Law but soon transitioned to immigration law. “I’ve always tended to side with the defendant, and I naturally gravitate towards fighting for the less powerful party,” he said. “I had extensive criminal defense experience, so I was well-positioned to fight on the behalf of immigrants.”

He and his legal partner, Jeffrey Rubin, are currently celebrating a significant win for immigrant rights. This summer, the Supreme Court ruled in their favor on Pereira v. Sessions, a case in which they represented Wescley Pereira, a Brazilian man who overstayed his U.S. visa and was arrested in the mid-2000s. Pereira was sent a notice to appear (NTA) for a hearing after his arrest, but it was mailed to the wrong address. It wasn’t until a decade later, when Pereira was pulled over at a traffic stop, that he realized he’d missed the hearing and could soon be deported.

“He had lived in the U.S. for more than ten years, so he would normally be eligible to apply to have his deportation cancelled,” said Pomerleau. Noncitizens who have resided in the U.S. for more than ten years and meet certain criteria are able to apply for cancellation of removal, making them eligible for permanent legal status. However, if that person is served an NTA, they are not able to accrue any more time until after the proceedings are resolved. Pomerleau adds, “The government argued that according to this ‘stop time’ rule, Pereira was unable to accumulate residency time—his clock was paused more than a decade earlier without him knowing.”

Pomerleau noted that the NTA that Pereira was served did not include the date and time of his hearing, and therefore was not a complete document. Pomerleau and Rubin presented this argument to the Board of Immigration Appeals. The court ruled against them, claiming that the notice was served and that the date and time were immaterial.

They eventually partnered with another Boston office to appeal and appeared last spring before the Supreme Court. In an 8-1 decision, the Court ruled in their favor, declaring that an NTA must specify where and when the hearing will take place, as is specified within the legal description of what a notice includes.

“It feels amazing to win this case, but what's really remarkable is the clarity of the decision and the thousands of removal proceedings it will impact,” reflects Pomerleau. “It’s a milestone case.”

What’s in a name?

Alumni-Spotlight-Joel-MacMull-2At New England Law, Joel MacMull ’04 studied commercial and constitutional litigation, discovering an interest in intellectual property law that quickly developed into a passion. After passing the bar, he began working with Ron Coleman, a fellow IP attorney. A few years later, they took on the cause of a musician named Simon Tam in the case Matal v. Tam.

Tam had applied for a trademark registration on the mark “The Slants,” the name of his band. “As a person of Taiwanese descent, he saw this as a way of celebrating his identity and reclaiming a hurtful word,” explains MacMull. The U.S. Patent and Trademark Office (PTO) saw it as disparaging to Asians—and the application was denied.

Finding the situation ironic and deeply frustrating, Tam reached out to MacMull and Coleman. They appealed on his behalf and were again denied. This time the PTO appeal board cited the Lanham Act. “The Lanham Act is fundamental to our trademark system. It has a section that prevents the registration of ‘disparaging’ marks,” said MacMull. “But who determines what’s disparaging?”

This opened the door for MacMull and Coleman to approach the case as an issue of free speech. “I drafted a brief that argued the PTO appeal board didn’t have jurisdiction on constitutional matters and then appealed to the U.S. Court for the Federal Circuit.” And then? “We lost again,” MacMull said.

His disappointment was short-lived, though; in a stunning reversal, the circuit court vacated its own ruling and decided to hear the issue again, this time as a constitutional case. “Rather than try to make an argument about whether or not the mark ‘The Slants’ is offensive, we were asking the Court to consider whether the government has the power to restrain speech that it deems offensive at all,” MacMull said. This time they won, causing the PTO board to appeal to the Supreme Court.

In 2017, the Supreme Court ruled unanimously that the provision in 1052(a) of the Lanham Act that proscribes the registration of disparaging trademarks is incompatible with the First Amendment. For MacMull, his training at New England Law positioned him to see this case through—even as they encountered setbacks. “I’m not typically a constitutional lawyer. I had a well-rounded foundation that prepared me to change our approach when this became a First Amendment question. Now I can say that I helped set a legal precedent for the nation.”

A deep commitment to the First Amendment

Alumni-Spotlight-Chester-DarlingChester Darling ’68 had a hunger for challenge that led him to try cases across the legal spectrum, often putting him into long-odds situations. He recalls, “I took cases that a lot of others wouldn’t—but where there’s injury, it’s the legal system’s responsibility to provide remedy.”

In 1992, Darling was approached with Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston (GLIB). John Hurley represented the South Boston Allied War Veterans Council, the organizers of Boston’s St. Patrick’s Day parade. GLIB, a gay pride group, asked to participate in the parade, but the Council denied them permission to march. “GLIB had performed demonstrations against the Catholic Church that offended some residents,” explains Darling, “so the Council told them they didn’t want to seem like they were promoting GLIB’s message by having their banners in the parade. GLIB sued the Council claiming that it was discriminatory to prevent their participation.”

For many people, then and now, the political overtones of the case are hard to ignore. But Darling is quick to note this was never an issue of gay rights—for him, the case was a cut-and-dry First Amendment issue. “I’ve argued cases for gay groups and against them. If it had been about homophobia, I never would have taken the case. But if there’s any bright star in the constitutional constellation, it’s the First Amendment. This was about compelled speech.”

The Superior Court of Massachusetts claimed that since the parade was in a public place, it didn’t qualify for First Amendment protection. Darling argued that the parade was itself speech, and that the Council had a right to exclude the messages of groups with which it disagreed. The matter was appealed all the way to the United States Supreme Court.

The ruling was unanimous: the Supreme Court held that organizers of a parade cannot be compelled to include groups whose message they do not support. “Litigating in that courtroom was a real highlight of my career,” said Darling. “Hurley has now been cited more than 2,000 times. I had the amazing opportunity to help determine how we interpret and apply one of our most important American rights.”

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