Unusual alliance of justices holds government to strict notice requirement in removal proceedings

Court rules against government on technical question of notice requirement in immigration law

Opinion analysis

By Jayesh Rathod

at 3:58 p.m.

On Thursday, the Supreme Court issued a 6-3 ruling in the Niz-Chavez v Garland case, choosing to read carefully an immigration law that specifies whether the government should give a non-citizen proper notice for deportation proceedings Has. By sticking to the simple language of the Statute and refusing to comply with immigration authorities’ requests for flexibility, the majority government gave a gain to non-citizens and their supporters who have long criticized the government’s gradual approach to notification of deportation hearings.

The time of publication of this notice (formalized as Form I-862 Notice to Appear or “NTA”) is important for the revocation of the deportation, which is an important form of relief for non-citizens in deportation proceedings. There are two types of removal waiver, and each involves permanent attendance – either seven years of uninterrupted residency or 10 years of uninterrupted physical presence. It is important that the NTA service stops both clocks for the non-citizen through a provision known as the “stop time rule”. Therefore, for non-citizens who want to meet the required time periods, issuing the NTA for eligibility can be fatal.

The Niz-Chavez litigation was based on a similar case, Pereira v. Sessions, and examined the exact form an NTA must take in order to trigger the stop-time rule. The Immigration and Citizenship Act defines 10 pieces of information that together constitute a communication on the deportation procedure. In the Pereira case, the court ruled that NTAs lacking some of this information – specifically the time and place of the hearing – were insufficient to trigger the stop time rule. Pereira did not answer the question posed in Niz-Chavez directly: whether the stop time rule is triggered when the government informs about multiple documents – usually an NTA lacks time and location information, followed by a subsequent hearing. The petitioner Agusto Niz-Chavez had received this exact two-part communication before gaining 10 years of physical presence in the United States. The Immigration Board of Appeal and the US Circuit 6 Court of Appeals both held that Niz-Chavez was not entitled to request the removal of the deportation because the two notices together would have triggered the stop-time rule.

The majority opinion, written by Judge Neil Gorsuch, overturns the 6th circuit decision, stating that all required notification information must be conveyed through a single document in order to trigger the stop time rule. An unusual alliance of judges joined Gorsuch: the court’s three liberals – Judges Stephen Breyer, Sonia Sotomayor, and Elena Kagan – and two other conservatives – Judges Clarence Thomas and Amy Coney Barrett. Judge Brett Kavanaugh wrote a dissent which Judges John Roberts and Judge Samuel Alito followed.

While the majority will base their decision primarily on legal interpretation, two general issues enliven the mind. First, Gorsuch is not telegraphing so subtly that the government should have learned its lesson in Pereira. Gorsuch notes the “excessive controversy” that the stop-time rule has sparked and complains that the government has decided to “continue the same old path after Pereira”. Second, the majority are reluctant to accommodate the government’s desire for more flexibility in notification, especially when the public is subject to strict standards in filling out government forms. What is good for the goose in the opinion of the Six Justice Majority is just as good for the viewer.

For the majority, the use of the indefinite article “a” by Congress in the stopping time rule signals its intention that the constituent information of the notice that is to appear will be delivered through a single document. In particular, INA section 1229b (d) (1) states that the stop time rule is triggered “when the foreigner is served a notification that appears in accordance with section 1229 (a)”. Section 1229 (a) (1) again states: “A written notice (referred to in this section as” Notice of Appearance “) is to be addressed … to the alien.” The majority believed that using the indefinite article, Congress did “A” expressed its expectation that the notification should be made at a specified time via a single document. In an effort to undermine the dissident’s reliance on the ambiguous phrase “written notice”, the majority note that even if this definitive phrase in section 1229b (d) (1) is replaced with “note of appearance”, the language will still strongly suggest that a single document is required. As Gorsuch puts it, there is a “simple legal order” that arises from the ordinary meaning of the terms.

The majority and the contradiction also argue about whether and under what circumstances an indefinite article could precede an article that could be carried over over several parts. Gorsuch suggests that “a car” clearly cannot be delivered in terms of its components, but Kavanaugh suggests that elements conveying information, such as an “application” or a “manuscript”, could actually be shared in multiple parts. However, according to the majority, the indefinite article “a” usually comes before countable nouns. Gorsuch also cleverly cites the oral argument of the Pereira government when it analogized an NTA with an indictment or complaint – pleadings that cannot be broken down into parts. The dissent counters again, arguing that an NTA is distinguishable by providing both fee and planning information.

In order to underpin the interpretation of the simple language of the statute, the majority also consider the neighboring INA provisions and legislative history. Gorsuch identifies two sections of the INA – Sections 1229 (e) (1) and 1229a (b) (7) – both of which use the term “the notice” to indicate that a single document is required. The majority also emphasize that Congress positively changed the INA to remove a previous practice that allowed for multi-part dismissal. Previously, the legal requirements for a justification order, the predecessor of today’s NTA, allowed the government to provide time and location information separately from the order itself. When Congress changed the name of the document in 1996, this more permissive language was deleted. Gorsuch also notes that the preamble to a 1997 ordinance explicitly stated that time and location information must be included in the NTA.

Kavanaugh’s dissent tries to poke holes in the reading of the statute and its legislative history by the majority. Taking up an argument made in the briefing to the government, he stressed that the law itself defines “notice” as “written notice”, the latter not specifically framed as a single document. In an attempt to counter the structural arguments of the majority, Kavanaugh cites Section 1229a (b) (5) of the INA, which also uses the term “written communication” and which, in the view of the dissent, could reasonably consider multiple documents. Regarding the historical arguments, Kavanaugh rejects the importance of perambulatory language in the proposed 1997 rule, noting that the language of the rule itself required time and location information to be included only “where practicable”.

Beyond their respective readings of legal language and legislative history, the majority and dissent articulate different views on how the need for bureaucratic flexibility can be reconciled with the interests of non-citizens. The majority are reluctant to exonerate the government because they fear that there may be multiple, piecemeal clues that may be incomprehensible to non-citizens with limited English language skills. The dissent suggests that the government has no incentive to issue such fragmented notices, but claims that non-citizens could ultimately benefit from a two-part notice as it would give them additional time to prepare for their deportation process. Kavanaugh also catalogs a “litany of absurdities” stemming from majority opinion and speculates on how the government might change its practices in a way that disadvantages non-citizens. In one of the closing passages, the dissent claims, with limited support, that court involvement will further clog an overburdened immigration system with claims that are unlikely to succeed.

In an opinion that focuses heavily on the meaning of words, one additional semantic characteristic is noteworthy: the judges’ use of the term “alien”. Biden’s government recently ordered its immigration authorities to use the more neutral term “non-citizen” instead of “foreigner” – a term that pervades the INA but which many consider to be dehumanizing. In particular, Kavanaugh’s dissent diligently avoids the use of the term “alien” except when citing legal language. In contrast, Gorsuch, who advocated Niz-Chavez, used the term more generously. For a decision shaped by unexpected alliances, the irony is appropriate. But while non-citizens and their supporters might criticize the majority’s use of outdated terminology, they will surely welcome the final outcome at Niz-Chavez – which will keep the government to a stricter standard and expand access to an important form of relief.