SUPREME COURT OF THE UNITED STATES
AGUSTO NIZ-CHAVEZ, PETITIONER v.
MERRICK B. GARLAND, ATTORNEY GENERAL
on writ of certiorari to the united states court of appeals for the sixth circuit
[April 29, 2021]
Justice Kavanaugh, with whom The Chief Justice and Justice Alito join, dissenting.
Agusto Niz-Chavez is a native and citizen of Guatemala. In 2005, Niz-Chavez unlawfully entered the United States through the southern border and eventually settled in Detroit. In 2013, the Government initiated removal proceedings against Niz-Chavez. After the removal hearings, an Immigration Judge ordered Niz-Chavez to either voluntarily depart from the United States within 30 days or else be removed to Guatemala.
The Court today casts aside the Immigration Judge’s order and allows Niz-Chavez to go back to immigration court to seek cancellation of removal. Why? The Court says that Niz-Chavez did not receive proper notice of his removal proceedings because he received notice in two documents rather than one. The Court so holds even though Niz-Chavez (i) received all the statutorily required information about his removal proceedings, including the time and place of the removal hearing; (ii) was not prejudiced in any way by receiving notice in two documents rather than one; and (iii) in fact appeared with counsel at his scheduled removal hearing.
The Court’s decision contravenes Congress’s detailed requirements for a noncitizen to obtain cancellation of removal. When the Government seeks to remove a noncitizen such as Niz-Chavez who is unlawfully in the country, it begins the process by sending the noncitizen a notice to appear for removal proceedings.
8 U. S. C. §1229(a)(1). In the subsequent removal proceedings before an immigration judge, the noncitizen may contest the grounds for removal and may also ask the immigration judge to grant various forms of relief, including discretionary cancellation of removal. §§1229b(a), (b)(1).
A noncitizen’s eligibility for cancellation of removal depends in part on when the noncitizen received notice of the removal proceeding. To be eligible, a noncitizen who is a nonpermanent resident must have been continuously present in the United States for at least 10 years. §1229b(b)(1)(A). The 10-year clock stops, however, when the noncitizen is served “a notice to appear” for the removal proceeding.
Because service of a notice to appear stops the 10-year clock and may make the noncitizen ineligible for cancellation of removal, noncitizens who want to apply for cancellation of removal (and courts) must know what constitutes a notice to appear. Federal immigration law answers that question.
The relevant statute defines a notice to appear as “written notice,” which must be served in person or by mail and which provides certain required information, such as the alleged grounds for removal and the time and place of the removal hearing. §1229(a)(1); see Pereira
, 585 U. S. ___, ___–___ (2018) (slip op., at 13–14) (§1229(a)(1) provides the definition of a notice to appear for purposes of the 10-year clock).
In this case, the United States commenced removal proceedings against Niz-Chavez in 2013—eight years after he entered the United States. The Government served two documents on Niz-Chavez. In March 2013, Niz-Chavez received the first document, which notified him that he was being charged as removable because he was unlawfully in the country.
It explained that he would have to appear for a removal hearing at the immigration court in Detroit at a time to be set in the future. Two months later, he received the second document, which notified him that the removal hearing would occur at the immigration court in Detroit on June 25, 2013, at 8:30 a.m. The two documents together included all the statutorily required information. See §1229(a)(1). Niz-Chavez appeared with counsel at the scheduled hearing on June 25, 2013.
At the hearing, Niz-Chavez conceded that he was removable because he was unlawfully in the country. Moreover, Niz-Chavez did not request cancellation of removal or suggest that he was eligible for cancellation of removal, presumably because he received the notice to appear long before he had accrued 10 years of continuous presence in the United States. After further hearings, an Immigration Judge found Niz-Chavez removable as charged and ordered Niz-Chavez to either voluntarily depart from the United States within 30 days or else be removed to Guatemala.
Niz-Chavez now argues that he in fact should be eligible for cancellation of removal. He emphasizes that the continuous-presence clock stops upon service of “a
notice to appear.” §1229b(d)(1). That language, according to Niz-Chavez, means that, to stop the 10-year clock, the Government must provide all the required information in one document
, rather than two. The Government responds that the statute includes no such requirement and that the Government may serve a notice to appear in two documents
, with the time and place of the hearing coming in the second document and the 10-year clock stopping then.
The Court today agrees with Niz-Chavez that, in order to stop the 10-year clock, the Government must provide written notice in one document, not two. I find the Court’s conclusion rather perplexing as a matter of statutory interpretation and common sense. I therefore respectfully dissent.
This is not the Court’s first case involving a notice to appear for removal proceedings. In Pereira
, the Court held that a notice that does not provide the time and place of the hearing does not stop the 10-year continuous-presence clock. 585 U. S. ___, ___ (2018) (slip op., at 2). Before Pereira
, the Government (in some Circuits) could send two documents as it did in this case and stop the clock when it served the first, incomplete document. See id.
, at ___–___, and n. 4 (slip op., at 7–8, and n. 4). In the wake of Pereira
, however, service of the first document no longer stops the clock. The clock does not stop until the Government also provides the time and place of the hearing.
, the Court did not address the distinct question whether the Government may serve a notice to appear in two documents instead of one, with the time and place of the hearing coming in the second document and the clock then stopping upon service of the second document. We must decide that question here.
, why would the Government still provide notice in two documents instead of one comprehensive document? Simple. When the Government wants to inform the noncitizen that it is initiating removal proceedings, the Government may not yet know exactly when the hearing will occur. So the Government sometimes will first inform the noncitizen of the charges, and only later provide the exact time and place of the hearing.
, the Government gains no advantage by providing notice in two documents, because the 10-year continuous-presence clock does not stop until the noncitizen has also been served the statutorily required time and place information. See id.
, at ___ (slip op., at 2). If anyone gains an advantage from two-document notice after Pereira
, it is noncitizens. They can learn of the removal proceedings and begin preparing a defense even before they receive notice of the time and place of the hearing. So receiving notice in two documents can benefit noncitizens.
Even though receiving notice in two documents would benefit noncitizens as a group by giving them more time to prepare for hearings, Niz-Chavez understandably seeks to advance his own interests in not having the 10-year clock stopped in his individual case. Niz-Chavez says that to stop the 10-year clock, the Government must provide a single document with all the statutorily required information, because the statute requires “a
notice to appear.”
The Court agrees with Niz-Chavez, resting its conclusion almost entirely on the word “a” in the statutory phrase “a notice to appear.” As the Court notes, Congress provided that the 10-year continuous-presence clock stops when the noncitizen is served “a notice to appear” for removal proceedings.
8 U. S. C. §1229b(d)(1).[1
] The Court says that the article “a” means that the 10-year continuous-presence clock stops only if the Government serves a single document with all the required information to initiate the removal proceedings, not two documents with all the required information. In my respectful view, the Court’s textual interpretation contains two independent flaws, either of which suffices to defeat the Court’s conclusion.
, the Court’s analysis disregards the statutory definition of a notice to appear.
When a statute defines a term, we ordinarily follow the statutory definition. Digital Realty Trust, Inc.
, 583 U. S. ___, ___ (2018) (slip op., at 9); Burgess
v. United States
553 U.S. 124
, 129–130 (2008). Here, the statute defines a notice to appear in a somewhat oddly worded way. The definition is located in the statutory provision that specifies how the Government must initiate removal proceedings. That provision states: “written notice (in this section referred to as a ‘notice to appear’)
shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any) specifying” 10 categories of information relevant to the removal proceedings. §1229(a)(1) (emphasis added); see also Pereira
, 585 U. S., at ___–___ (slip op., at 13–14) (§1229(a)(1) provides the definition of a notice to appear for purposes of the 10-year clock).[2
In other words, the statute provides that the 10-year continuous-presence clock stops upon service of “a notice to appear,” and then goes on to define a notice to appear as “written notice.” The statute nowhere says that written notice must be provided in a single document. Rather, the statute lists three essential requirements for the Government to notify a noncitizen of removal proceedings: (i) the notice must be “written notice”; (ii) it must be “given in person,” if practicable, or else by mail; and (iii) the notice must include the required information, such as the grounds for removal and the time and place of the hearing. §1229(a)(1). Nothing more. But the Court today nonetheless imposes a fourth, atextual single-document requirement for the notice to stop the 10-year clock.
If Congress actually wanted to require a single document to stop the 10-year clock, Congress easily could have (and surely would have) said so. After all, the statute supplies comprehensive and detailed instructions about how the Government must serve a notice to appear and what information must be included. But the statute never says that all the required information must appear in a single document.
Notice delivered in two installments can readily satisfy all the requirements of a notice to appear. Consider the notice served on Niz-Chavez in this case. It was written notice. It was properly served. It contained all the statutorily required information, including the time and place of the hearing. The statute contemplates nothing more of a notice to appear.
Instead of applying that clear statutory definition of a notice to appear as written notice, the Court dismisses the definition’s relevance on a novel basis not raised by Niz-Chavez, not advanced by any amicus
brief, and not adopted by any lower courts—the placement of a quotation mark. The Court reasons that the quotation marks in the statutory definition appear around only the words “notice to appear,” rather than around “a
notice to appear.” On that basis, the Court insists that the phrase “written notice” defines only the three words “notice to appear”—without the “a.” And substituting “written notice” for “notice to appear” in the statutory provision addressing the 10-year clock would still require “a” written notice, which the Court interprets to mean a single document.
According to the Court, Congress thus imposed a single-document requirement for stopping the 10-year clock not by actually saying that a single document is required, but rather by placing quotation marks around the words a “notice to appear”
rather than “a notice to appear”
in the statutory definition. There is a good reason that Niz-Chavez did not raise this argument, that no amicus
brief advanced this argument, and that no court has adopted it. The Court’s theory is mistaken and implausible. If Congress wanted to require a single document in order to stop the 10-year clock, it is hard to imagine a more obscure way of doing so. Although “the meaning of a statute will typically heed the commands of its punctuation,” “a purported plain-meaning analysis based only on punctuation is necessarily incomplete and runs the risk of distorting a statute’s true meaning.” United States Nat. Bank of Ore.
v. Independent Ins. Agents of America, Inc.
508 U.S. 439
, 454 (1993). The Court has declined to rely on “the deployment of quotation marks” when “all of the other evidence from the statute points the other way.” Id.,
So it is here. The Court’s quotation-mark theory contravenes the statutory text and structure. The text and structure make clear that the notice that initiates removal proceedings is the same notice that stops the 10-year clock. See §§1229(a)(1), 1229b(d)(1). But the Court’s interpretation treats them as different by imposing different requirements for a notice that stops the 10-year clock and for a notice that initiates removal proceedings.
To reiterate, to initiate removal proceedings, the Government must provide the noncitizen with “written notice.” The Court does not dispute (and cannot dispute) that the Government can initiate removal proceedings by providing written notice in more than one document, so long as the notice encompasses all the statutorily required information. Nonetheless, for that written notice to also stop the 10-year clock, the Court says that the written notice must be provided in a single document rather than two documents because the 10-year clock provision requires “a
notice to appear.” Stated otherwise, under the Court’s novel theory, the Government may use two documents to initiate removal proceedings, but the Government must use a single document if it also wants to stop the continuous-presence clock—even though Congress explicitly linked the notice that stops the clock to the notice that initiates removal proceedings. Put simply, the Court’s argument based on the placement of a quotation mark contravenes the straightforward statutory structure and makes little sense.
The Court’s novel interpretation also creates another inconsistency. Section 1229a(b)(5) explains that a noncitizen who fails to attend a removal hearing may be removed in absentia if he had previously been provided with “written notice” under §1229(a)(1). Under the Court’s interpretation, it is hard to see why such notice would need to be provided in a single document—there are no dangling uses of “a” to latch onto in that provision. It makes no sense that two-document notice could justify removal in absentia but could not stop the continuous-presence clock.
In sum, the Court’s theory for disregarding the statutory definition is both novel and unpersuasive. The Court’s quotation-mark argument fails because it distorts the “statute’s true meaning.” United States Nat. Bank of Ore.
, 508 U. S., at 454. When the statutory definition of a notice to appear as “written notice” is correctly applied, instead of sidestepped, it readily resolves what should have been a very simple statutory case.
, even if there were no definition in this statute and we therefore had to focus solely on the term “a notice to appear” in isolation, the Court’s interpretation of that phrase would still fail.
Ordinary meaning and literal meaning are two different things. And judges interpreting statutes should follow ordinary meaning, not literal meaning. See, e.g., McBoyle
v. United States
283 U.S. 25
, 26 (1931) (in ordinary speech, “vehicle” does not cover an aircraft, even though “etymologically it is possible to use the word” that way); see also A. Scalia, A Matter of Interpretation 24 (1997) (a “good textualist is not a literalist”). The Court here, however, relies heavily on literal meaning: The Court interprets the word “a” in the phrase “a notice to appear” to literally require the Government to serve one (and only one) document. In the Court’s words, “a notice” requires “ ‘a’ single document containing the required information.” Ante,
As a matter of ordinary parlance, however, the word “a” is not a one-size-fits-all word. As relevant here, the word “a” is sometimes used to modify a single thing that must be delivered in one package, but it is sometimes used to modify a single thing that can be delivered in multiple installments, rather than in one installment. Context is critical to determine the proper meaning of “a” in a particular phrase. Consider some examples. A car dealership that promises to ship “a car” to a customer has not fulfilled its obligation if it sends the customer one car part at a time. By contrast, it is common to submit “a job application” by sending a resume first and then references as they are available. When the final reference arrives, the applicant has submitted “a job application.” Similarly, an author might submit chapters of a novel to an editor one at a time, as they are ready. Upon submission of the final chapter, the author undoubtedly has submitted “a manuscript.” “A contract” likewise can be “established by multiple documents.” Secretary of U. S. Air Force
v. Commemorative Air Force
, 585 F.3d 895, 901 (CA6 2009). The list goes on.
As those examples demonstrate, and as the Court acknowledges, the article “a” can be perfectly consistent with delivery in installments. And in this case, the better reading of the article “a” is that it does not require delivery in only one installment. A notice to appear for a removal hearing is more like a job application, a manuscript, and a contract than it is like a car. A notice to appear conveys information, like a job application, a manuscript, and a contract. And unlike a car, a notice to appear is easy for the recipient to assemble from its constituent installments.
The Court prefers a different analogy. To buttress its interpretation, the Court analogizes the notice to appear to legal documents that initiate criminal cases, like indictments. The Court reasons that “an indictment” traditionally provides all the required information in a single document, so “a notice to appear” must do so as well. Ante,
But that analogy is misplaced. An indictment generally provides charging information. By contrast, a notice to appear provides charging information and
logistical calendaring information that is not always knowable at the time of charging. As the Court said in Pereira
, a notice to appear is more than just a charging document because it serves “another equally integral function: telling a noncitizen when and where to appear.” See
585 U. S., at ___, n. 7 (slip op., at 13, n. 7). In other words, a notice to appear is akin to a charging document plus
a calendaring document. It is therefore easy to understand why a notice to appear might require two installments while an indictment requires only one. The analogy to an indictment actually cuts strongly against
the Court’s interpretation.
In addition, interpreting “a notice to appear” to allow delivery in two documents makes much more sense in context here because it allows the Government to alert the noncitizen of the charges well before a time and place have been set for the hearing. That affords the noncitizen more time to prepare a defense. And a noncitizen suffers no prejudice from receiving notice in two documents rather than one, as Niz-Chavez’s case amply demonstrates. In short, a noncitizen gains something and loses nothing meaningful from receiving all the information in two documents. (The same cannot be said for receiving a car in two installments, for example.)
The Court’s interpretation, by contrast, spawns a litany of absurdities. For example, under the Court’s interpretation, the 10-year clock does not stop if the noncitizen receives the two separate documents on the same day but in different envelopes
. But the clock does stop if the noncitizen receives the two documents in one envelope. What sense does that make? Moreover, if a noncitizen receives a first document without a time and place and a second document with only the time and place, that does not stop the clock under the Court’s rule. But if a noncitizen receives a first document with all the information including the time and place and then a second document with all the information and a new
time and place, that first document does stop the clock under the Court’s rule. What sense does that make?
Indeed, the Court deems Niz-Chavez to have never received proper notice of the hearing even though he received all the statutorily required information and actually appeared with counsel at the hearing
. Again, what sense does that make?
The Court blames those absurdities on Congress and says that Congress would have chosen to omit the article “a” if it wanted to allow two documents. The Court’s apparent theory is that Congress deliberately employed the word “a” to obliquely impose an additional procedural obligation on the Government when the Government initiates removal proceedings against a noncitizen and wants to stop the 10-year clock. That theory is no more plausible than the Court’s first theory that Congress used the placement of a quotation mark to impose a new procedural obligation. Once again, if Congress wanted to require the Government to send a notice to appear in one document rather than two documents in order to stop the 10-year clock, Congress easily could have said so, and undoubtedly would have said so. But it did not. The bottom line is that this new single-document requirement comes from this Court, not Congress. The Court’s attempt to deflect blame is unpersuasive.
In sum, the Court’s interpretation of the statutory text is wrong for two independent reasons, either of which suffices to defeat the Court’s conclusion. First, the statutory definition of a notice to appear as “written notice” establishes that “a notice to appear” can be delivered in two installments. Second, even if there were no statutory definition, the best reading of “a notice to appear” in this context is that the notice can be provided in two installments.
The Court seeks to support its textual analysis with additional arguments based on structure, statutory history, and post-enactment regulatory history. Those arguments do not help.
, start with structure. The Court says that three other statutory provisions—§§1229(e)(1), 1229a(b)(7), and 1229(a)(2)—imply that a notice to appear is a single document. Ante
, at 9–11. But none of the three provisions actually requires the Government to serve a notice to appear in a single document. Moreover, the language in all three provisions is consistent with a two-document notice to appear.
The first provision, §1229(e)(1), addresses the Government’s notice obligations when it seizes a noncitizen at a domestic violence shelter or other location as a precursor to removal proceedings. In those cases, §1229(e)(1) says that “the Notice to Appear shall include” a statement that the Government has complied with certain protections for noncitizens. The Court says that the phrase “the Notice” implies a single document because it pairs an article with a singular noun. Ante
, at 9–10. But the reference in §1229(e)(1) to “the Notice to Appear” does not require or even contemplate a single document. Like the article “a,” the article “the” can be used with a thing delivered in constituent installments—consider “the job application,” “the manuscript,” or “the contract.” Section 1229(e)(1) simply requires the Government to include the necessary statement of compliance in one of the documents constituting the notice to appear.
The second provision, §1229a(b)(7), concerns noncitizens who fail to appear at removal proceedings and are ordered removed in absentia. Section 1229a(b)(7) says that a noncitizen in that situation is ineligible for certain kinds of relief from removal for 10 years if the noncitizen was provided oral notice “at the time of ” the written notice to appear. §1229a(b)(7). The Court argues that the provision’s reference to “the time of ” the written notice implies that the written notice is necessarily delivered at one particular moment, and therefore in one single document. Ante
, at 10–11. On the contrary, the reference in §1229a(b)(7) to “the time of ” the written notice is entirely consistent with two-document notice. Notice qualifies as “a notice to appear” only when it includes the time and place of the removal hearing. Pereira
, 585 U. S., at ___, ___ (slip op., at 2, 9). So when the Government uses two documents to serve a notice to appear, “the time of ” the written notice is the time when the noncitizen is served the second installment that provides the time and place of the hearing.
The third provision, §1229(a)(2), supplies a procedure for changing the time or place of a removal hearing. It requires the Government to give a noncitizen “a written notice” of the new time and place. The Court concludes that the reference to “a
written notice” requires a single document, and so “a
notice to appear” must as well. Ante,
at 11. As a practical matter, the Government may need only one document to change the time or place of the hearing. But the word “a” in the phrase “a written notice” does not require
the Government to use a single document, just as the word “a” in the phrase “a notice to appear” does not. Section 1229(a)(2), like the other two provisions, is entirely consistent with the Government’s reading of the statute.
, the Court also invokes statutory history to support its interpretation. But the statutory history does not advance the Court’s argument. Before 1996, the immigration statute required the Government to serve an “order to show cause” rather than a notice to appear.
8 U. S. C. §1252b(a)(1) (1994 ed.). Back then, the statute allowed the Government to notify a noncitizen of the time and place of the removal hearing either “in the order to show cause or otherwise.” §1252b(a)(2)(A) (1994 ed.). The pre-1996 statute similarly defined an order to show cause as “written notice”—a broad term that does not require one document. §1252b(a)(1) (1994 ed.).
In 1996, Congress made some significant changes. Congress replaced suspension of deportation with cancellation of removal. Illegal Immigration Reform and Immigrant Responsibility Act, §§304(a), 308(b)(7),
3009–587, 3009–615 (codified at
8 U. S. C. §1229b). Congress extended the continuous-presence requirement to 10 years for nonpermanent residents.
3009–594 (codified at §1229b(b)(1)(A)). Congress also changed the order to show cause to a notice to appear, and required the Government to provide the time and place information in that notice to appear.
3009–588 (codified at §1229(a)(1)(G)(i)). And Congress also provided for the first time that service of the notice to appear would stop the continuous-presence clock.
3009–595 (codified at §1229b(d)(1)).
But amid all those changes, Congress never required that a notice to appear include all the required information in a single document. The Court nonetheless speculates that a “rational Congress easily could have thought” it sensible to peg the end of the continuous-presence clock to a single document. Ante
, at 11. Maybe so. But a rational Congress also could have declined to impose a single-document requirement. What matters is that the actual
Congress declined to impose a single-document requirement in 1996, just as it had declined to do before 1996.
the Court turns to post-enactment regulatory history. According to the Court, language in the preamble to a 1997 notice of proposed rulemaking issued jointly by the Immigration and Naturalization Service and the Executive Office for Immigration Review suggests that those agencies once believed that a single document was required. Ante,
at 12; see 62 Fed. Reg. 449. Even assuming that this executive agency interpretation (found in a preamble to a notice of proposed rulemaking) could alter the otherwise-best interpretation of the statute, the proposed rule that follows the preamble undercuts the Court’s characterization of the agencies’ 1997 position. The 1997 proposed rule stated that the Government would include the time and place of the removal hearing in the initial charging document “where practicable
at 457 (emphasis added). And the proposed rule gave alternative instructions for when time and place information “is not contained” in the initial document. Ibid.
That formulation does not reflect a single-document interpretation of the statute. So post-enactment regulatory history does not help the Court any more than statutory history; indeed, the post-enactment regulatory history appears in significant tension with the Court’s reading.
In the end, the Court’s arguments based on structure and history all fail to answer a very simple question: If Congress wanted all the information to be included in one document in order to stop the 10-year clock, why did Congress not say that all the information must be included in one document?
The Court concludes its opinion by suggesting that its decision will rein in the Federal Government and produce policy benefits for noncitizens. But the Court’s decision will not meaningfully benefit noncitizens going forward, and it will ultimately benefit few if any noncitizens who have already been notified of their removal proceedings. Meanwhile, the Court’s decision will impose significant costs on the immigration system, which of course means more backlog for other noncitizens
involved in other immigration cases.
To be clear, demonstrating that the Court is wrong to predict policy benefits from its decision is not ignoring a “statutory command” in favor of policy views. Ante,
at 15. Rather, the point here is that the Court’s opinion both errs as a matter of statutory interpretation and
will not meaningfully help noncitizens, contrary to the Court’s prediction.
Start with the supposed policy benefit that the Court identifies: The Court suggests that its decision will help noncitizens by stopping the Government from sending numerous documents (more than two) to noncitizens over a period of months or even years, perhaps in an effort to confuse them. But the Court does not point to any examples of the Government actually
serving a notice to appear in more than two documents, or over a period of years. After all, why would the Government do so, absent a need to reschedule a hearing? It would make no sense. Under the statute as interpreted in Pereira
, the Government cannot stop the continuous-presence clock until it provides the time and place of the removal hearing. And the immigration court cannot commence the removal hearing until the Government does so. So wasting years and sending multiple documents to serve a notice to appear would only work to the Government’s disadvantage because it would delay the hearing. The supposed “benefit” of the Court’s decision, then, is simply to prevent the Government from doing something that it has no incentive to do in the first place. The Court’s opinion cures a problem of its own imagination.
In fact, the Court’s decision will not alter the delivery of notice in any meaningful way. Going forward, when the Government wants to initiate the process of removing a noncitizen before it knows with certainty the time and place of the noncitizen’s initial removal hearing, the Government can comply with today’s decision in one of three ways. None of the three alternatives provides meaningful benefits for noncitizens as compared to the Government’s current practice of sometimes using two documents, and two of the options are worse for noncitizens.
The first way that the Government can comply with today’s decision is simply to do what it did in Niz-Chavez’s case, with one minor change. The Government can still send an initial document that informs the noncitizen of all relevant information except the time and place of the hearing, and then a second document that supplies the time and place of the hearing. All that the Government needs to do to comply with today’s decision and still stop the 10-year clock is to repeat all the information from the first document in the second document, or alternatively to provide a copy of the first document when it serves the second. Delivered together, the two attachments will form a single, complete notice to appear even under the Court’s strained interpretation, and therefore will stop the 10-year clock. (Counsel for Niz-Chavez forthrightly conceded all of this at oral argument. Tr. of Oral Arg. 24.) The Court insists that this change in practice will still help noncitizens, but it fails to explain how. The first document sent to Niz-Chavez in this case informed him that he was required to carry the document with him at all times. Especially in light of that obligation, it is hard to see any meaningful benefit in the Government’s resending the same initial document to a noncitizen once the hearing has been scheduled.
But even if that first possible method of complying with today’s decision would benefit noncitizens in some minimal way, it is not clear that the Government will actually choose that option. Instead, the Government can comply with today’s decision in other ways that will leave noncitizens worse off
. As a second option, for example, the Government may stop sending the first document at all and just wait until it can provide all the information in one comprehensive document—necessarily closer to the date of the hearing. That would indisputably comply with today’s decision but would disadvantage noncitizens by affording them less time to prepare for removal hearings.
The third possible option is no better for noncitizens. When the Government is ready to initiate removal proceedings but does not know the time and place of a hearing, it could comply with the Court’s decision by sending a document with a placeholder time and place of the hearing and then later serve a second document with the actual time and place of the hearing. As counsel for Niz-Chavez conceded at oral argument, doing so would comply with the statute and allow the Government to stop the continuous-presence clock upon service of the initial
document rather than the second document. Id.,
at 15. That option would give noncitizens less
time to accrue continuous presence than when the Government includes the time and place only in the second document. Moreover, that approach—sending the noncitizen two different times or places—is a recipe for confusion.
In short, the Court’s conclusion today will not necessarily help noncitizens or constrain the Government going forward.[3
But looking backwards
will the Court’s decision at least supply a benefit to some noncitizens such as Niz-Chavez who previously
received a notice to appear in two documents? To begin with, any noncitizen who becomes eligible for cancellation of removal notwithstanding the noncitizen’s receipt of all the required information in writing before 10 years of continuous presence would receive a windfall based on the thinnest of technicalities. Consider Niz-Chavez himself. He received all the required information before the 10-year clock had run, he showed up at the hearing with counsel, and he suffered zero prejudice from receiving notice in two documents rather than one.
But in any event, that eligibility windfall is unlikely to translate to any real-world benefit for many noncitizens in Niz-Chavez’s position. To be sure, today’s decision means that some noncitizens in Niz-Chavez’s position will now become eligible
for cancellation of removal. But that does not mean that those noncitizens will actually receive
cancellation of removal as a result of today’s decision. Cancellation of removal is discretionary. §§1229b(a), (b)(1). In other words, today’s decision means only that immigration judges have discretion to grant cancellation of removal for some noncitizens who received notice in two documents.
And there is another apparent catch. Subject to a few exceptions not relevant here, the number of noncitizens who may receive cancellation of removal is capped by statute at only 4,000 per year. §1229b(e)(1). Those 4,000 spots are “coveted and scarce”—so scarce, in fact, that in recent years, “according to the Executive Office for Immigration Review, 3,500 cancellation of removal slots have been filled on the first day” of the year. Matter of Castillo-Perez
, 27 I. & N. Dec. 664, 669 (Atty. Gen. 2019). “The other 500 slots are set aside to be granted to detained aliens throughout the year.” Ibid.
Perhaps a small handful of the noncitizens who receive an eligibility windfall as a result of today’s decision will ultimately also receive cancellation of removal. But that is far from clear.
Meanwhile, the Court’s decision will impose substantial costs and burdens on the immigration system, as the Government has detailed. Tr. of Oral Arg. 52–54. Because today’s decision means that many more people who have been in removal proceedings may be eligible for cancellation of removal, presumably many more people will apply. And processing all of those extra applications for cancellation of removal will impose costs on the immigration system and create backlogs and delays for other noncitizens trying to get their day in court. More than 1.2 million cases are currently inching their way through the immigration courts. Dept. of Justice, Executive Office for Immigration Review Adjudication Statistics, Pending Cases, New Cases, and Total Completions (Jan. 7, 2021). If even a small portion of the noncitizens with pending removal cases become eligible for cancellation of removal solely because of today’s decision, and then apply for cancellation of removal, the immigration courts will need to expend substantial resources to timely consider those applications for relief, even though many of them are likely to be denied.
In sum, the Court’s statutory conclusion in this case will not necessarily help noncitizens. The Court’s statutory interpretation is not likely to create meaningful benefits for many noncitizens going forward, and it is not likely to create benefits for many noncitizens looking backwards. And it will impose serious administrative burdens on an immigration system that is already overburdened, thereby harming other noncitizens.
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As a matter of policy, one may reasonably debate the circumstances under which a noncitizen who is unlawfully in the country should be removed and should be eligible for cancellation of removal. But those policy choices are for the political branches. Our job is to follow the law passed by Congress and signed by the President.
The statute here requires the Government to serve the noncitizen with written notice of the charges and other required information, including the time and place of the hearing. In this case, Niz-Chavez received written notice of the charges and all the required information, including the time and place of his hearing. Niz-Chavez appeared with counsel at his hearing in Detroit on June 25, 2013. Because he received written notice to appear before he had accumulated 10 years of continuous physical presence, he is not eligible for cancellation of removal. I respectfully dissent.