On Monday morning, the Supreme Court heard a hearing in the Niz-Chavez v Barr case, which concerns the “stop-time rule,” the same provision of the Immigration and Nationality Act that the Pereira Court v. Sessions and Barton v. Barr. The stop-time rule restricts access to cancellation of deportation, an effective form of relief for non-citizens in the process of deportation. To qualify for relocation cancellation, an applicant must have either seven years of continuous residence (for permanent residents) or ten years of continuous physical presence (for non-permanent residents). The stop time rule, as the name suggests, describes events that stop the seven and ten year clock, making non-citizens ineligible for this form of relief.
According to Section 1229b (d) of the INA, an event that triggers the stop time rule is the delivery of a “Notice under Section 1229 (a) of this Title” to the non-citizen. Again, Section 1229 (a) (1) provides the following guidelines for the appearance of notices:
In the relocation procedure … the foreigner must be personally sent a written notice (referred to in this section as “Notice of Appearance”) stating the following: …
(G) (i) Time and place of the hearing.
The government’s continued failure to include “time and place” information in its notices (formalized as Form I-862 Notice to Appear, or “NTA”) resulted in litigation in Pereira. In an 8-1 ruling by Justice Sonia Sotomayor, the Pereira court ruled that an NTA without dates and times cannot trigger the stop time rule. Pereira left the question now raised in Niz-Chavez open: whether notification to the government of multiple documents – particularly an NTA with no dates and times, followed by a time and date hearing – would trigger the stop-time rule.
At the hearing on Monday, attorney David Zimmer, who represented Agusto Niz-Chavez, quoted both legal language and legislative history to support the view that Congress intended to serve the notice of deportation through a single document. Zimmer reiterated a key point in Niz-Chavez’s letter, stressing that Congress intentionally used the article “a” before “notice,” indicating that the required information must be provided in a document. Zimmer also went over the legislative history of the provision, offering Congress to purposely abandon a two-step process and replace it with a comprehensive document: the notice. Zimmer asked the court to “make sense” of this change, claiming that the government’s proposed interpretation “would read this change entirely from the law.”
Attorney General Anthony Yang’s assistant, who argued for the government, stressed that substance should take precedence over form and that the legally required “written communication” could be on more than one document. Judge Clarence Thomas asked Yang to identify other locations in the US Code where multiple notices could be issued. Whether conceived as a softball or a curveball, the question made Yang admit that he had no such examples, but that additional clues are not uncommon. Yang also reiterated the arguments in the government’s brief, offering that Oregon law allows a singular “arbitration notice” to be sent on multiple documents. Justice Neil Gorsuch later offered a counterexample to Yang, strongly suggesting that “a bank memorandum” simply cannot be conveyed through its constituent parts.
As is so often the case, the judges showered the lawyers with hypotheses to test the outer limits of their respective positions. Chief Justice John Roberts asked Zimmer if the government could give notice of two documents that arrived on the same day but in different envelopes. Zimmer insisted that this form of notification would not trigger the stop-time rule, as Congress had created a “clear, firm rule that all information must be provided together.” In response to a subsequent question from Roberts, Zimmer finally admitted that two separate documents mailed together in the same envelope would likely constitute a proper notification under the INA. Yang also faced questions about the form of the termination when Thomas asked if the government’s position meant that they could possibly send the required termination through “seven or eight or nine different documents.” Yang admitted that nothing “textually limits” this approach, but that given the possible flaw, the government had no incentive to “Balkanize the notice.”
Justice Samuel Alito urged Zimmer whether an overly formalist position could lead to absurd results. Alito asked if the government would comply with the law by issuing NTAs with the date and time of the hearing, knowing that a very high percentage of the hearings would have to be postponed. Zimmer admitted they would and offered that the notice would be in line with the intentions of Congress. Trying to counter the sting of Alito’s questions, Sotomayor asked Zimmer to explain the importance of providing the required information on a single document, even if the date should change later. As Sotomayor put it, “What was the harm Congress was trying to avoid by making piecemeal notices?” Zimmer mentioned the potential for confusion among non-citizens and administrative problems for the relevant authorities.
Taking up a legal argument in the government statement, Thomas and Justice Brett Kavanaugh stated that “notice” in the provision is defined as “written notice” and that the latter sentence could reasonably consider more than one document. In her back and forth with Yang, Justice Elena Kagan responded to this argument with a succinct question. Kagan claimed that if the term “notice appear” in Section 1229b (d) were replaced with its definition “written notice” it would still be prefixed with the word “a”, indicating that a single document must be required. She also urged Yang to see if a party asked for a “written complaint” could do so through multiple documents, and asked Yang to respond that the precedent did indeed allow it under certain circumstances.
Gorsuch expressed frustration with the fact that the court was actually hearing this case and named it “Pereira Groundhog Day” – suggesting that the court had essentially answered these questions in its previous decision. Gorsuch made the point when questioning Yang, noting that the government could have exercised some degree of discretion and “took the advice from the eight-justice majority in Pereira.” Gorsuch also asked Zimmer to articulate why a 2019 decision by the Immigration Board of Appeal in the Mendoza-Hernandez case, according to which a communication of multiple documents could trigger the stop-time rule, was not warranted for restraint, according to Chevron v the court stated that judges should postpone the reasonable interpretation of an ambiguous statute by an agency. Zimmer quoted the board’s “unresolved change of position” in Mendoza-Hernandez, arguing that it disregarded legal text and history and offered no opportunity for public contributions.
In her interrogation of Zimmer, Kagan offered a solution that seemed to attract the attention of some judges. What if the government issued an initial NTA with no dates and times, but then issued the same (or similar) document with the date and time added? Zimmer acknowledged that the latter NTA would comply with the law and trigger the stop-time rule, even if that wasn’t what Congress expected. Justice Amy Coney Barrett suggested in her interview with Zimmer that this could be a superior solution for non-citizens rather than having the stop time rule triggered by a previous NTA with a “dummy” date. With that in mind, while interviewing Yang, Roberts suggested that the government could simply include a copy of the original NTA when sending the hearing notice below.
These various proposals seemed to signal the view of some judges that the government could find a practical way to comply with the law without overloading itself. When urged on this point by Roberts, Yang gave a detailed explanation of the logistical difficulties that might arise given the location of the physical acts and the reluctance of the immigration courts to engage in an essentially criminal function. Yang finally relented, admitting that “we are not saying it cannot, but it would be burdensome.” In an exchange with Alito, Yang described additional complications that arise when non-citizens are detained at the border.
By the end of the lesson, four judges – Breyer, Gorsuch, Kagan and Sotomayor – had openly expressed their skepticism about the government’s reading of the Statute. Roberts and Barrett revealed less, but seemed convinced that the government could get around this entire problem by modifying some of the agency’s practices. Although few judges invoked Pereira as a control precedent, the court’s decision – together with its apparent reluctance to commit bureaucratic inefficiencies – could well lead to another unilateral decision in favor of non-citizens.
Jayesh Rathod, argument analysis: judges rethink the provisions on immigration notices, analyze the legal text and demand practical solutions.
SCOTUSblog (November 10, 2020, 10:52 p.m.), https://www.scotusblog.com/2020/11/argument-analysis-justices-revisit-immigration-notice-provision-parsing-statutory-text-while-urging – Practical Solutions /