Case preview: How must the government serve notice of removal proceedings?
on Nov 6, 2020 at 4:22 pm
In Niz-Chavez v. Barr, the Supreme Court rekindles its on-again, off-again relationship with the “stop-time rule,” a provision in the Immigration and Nationality Act that forecloses access to cancellation of removal, an important form of discretionary relief for noncitizens in removal proceedings. This case, which will be argued on Monday, marks the third time since 2018 that the court has tangled with the stop-time rule, with previous rendezvous in Pereira v. Sessions and Barton v. Barr. Niz-Chavez builds upon the Pereira litigation, and will require the justices to examine, once again, how notice of removal proceedings intersects with the stop-time rule.
Cancellation of removal operates as a type of forgiveness provision in U.S. immigration law, allowing noncitizens who satisfy certain eligibility criteria to secure permanent resident status, provided the positive equities in their case outweigh any negative factors. The INA sets forth two forms of cancellation removal, one for permanent residents, and another for nonpermanent residents. Each form of cancellation of removal includes a requirement linked to the length of the noncitizen’s stay in the United States: seven years of continuous residence for permanent residents, and 10 years of continuous presence for nonpermanent residents. To further limit access to this important remedy, the INA outlines specific occurrences that stop the seven- and 10-year clocks. Section 1229b(d) provides, in relevant part, that
any period of continuous residence or continuous physical presence in the United States shall be deemed to end … when the alien is served a notice to appear under section 1229(a) of this title …
Section 1229(a)(1), in turn, clarifies the meaning of the term “notice to appear,” as follows:
In removal proceedings … written notice (in this section referred to as a “notice to appear”) shall be given in person to the alien … specifying the following: …
The statute then enumerates seven pieces of information that must be conveyed, lettered A through G. Among the required components is information about the nature of the proceedings, the charges against the noncitizen and corresponding statutory provisions, the right to representation by counsel, and most relevant to the present case, “[t]he time and place at which the proceedings will be held.”
The lowercase “notice to appear” mentioned in the INA has a tangible counterpart in immigration practice: Form I-862 Notice to Appear, commonly referred to as an “NTA.” For many years, the Department of Homeland Security has made a practice of issuing NTAs that lack information about the time and date of the hearing. Instead, NTAs frequently list both as “to be set,” and the immigration court subsequently sends a hearing notice with the actual date and time. This practice led to the litigation in Pereira, in which the petitioner argued that an NTA lacking date and time information could not trigger the stop-time rule and therefore render him ineligible for cancellation of removal. In an 8-1 decision authored by Justice Sonia Sotomayor, the Supreme Court agreed, holding that “[a] putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under §1229(a),’” and so does not trigger the stop-time rule.
While the Pereira court underscored the critical importance of time and date information, it did not explicitly address whether the government can trigger the stop-time rule if it serves the required information via multiple documents – for example, an initial NTA lacking the scheduling information, followed by a hearing notice.
Enter Agusto Niz-Chavez, a Guatemalan national who fled violence in his home country and arrived in the United States in 2005. Niz-Chavez built a life in the United States and is the primary supporter of his three U.S. citizen children, two of whom have health-related challenges. After being pulled over for a broken tail light, Niz-Chavez was referred to immigration authorities. In March 2013, he received an NTA lacking date and time information; about two months later, in May 2013, the government sent Niz-Chavez a hearing notice.
Once in removal proceedings, Niz-Chavez sought to apply for cancellation of removal. The immigration judge ruled, pre-Pereira, that the March 2013 NTA triggered the stop-time rule and thus prevented him from accruing the required 10 years of continuous presence. While the case was pending before the Board of Immigration Appeals, Pereira was decided, but the board ruled that the two-step approach (NTA + hearing notice) was sufficient to trigger the stop-time rule. The U.S. Court of Appeals for the 6th Circuit upheld the board’s decision, and as the case made its way to the Supreme Court, a circuit split emerged on whether the notice required in Section 1229(a) must be served via a single document in order to trigger the stop-time rule. Most of these appellate decisions analyzed Matter of Mendoza-Hernandez, a 2019 en banc decision from the Board of Immigration Appeals holding that multiple documents can together comprise the required service of the NTA.
The parties’ briefing before the court engages with questions of statutory interpretation, legislative history and agency deference, while considering the on-the-ground impact of their positions. Niz-Chavez repeatedly emphasizes that Section 1229(a) uses a singular statutory term – “a ‘notice to appear’”— and contends that this choice of language evinces unambiguous congressional intent to require notice via a single document. And since an NTA is often described as a charging document, Niz-Chavez notes that a comparable legal filing (of, say, a “complaint” or “brief”), would likewise occur via a single document. The government’s primary counter-argument, mirroring the 6th Circuit’s rationale in Garcia-Romo v. Barr, is that terms like “a manuscript” or “a file” might reasonably refer to written documents submitted in multiple parts. In response, Niz-Chavez raises the specter of a stitched-together “Frankenstein notice,” which would undermine the purpose of a single NTA that presents a complete picture of the removal proceedings.
The parties each contend that legislative and regulatory history is on their side. According to Niz-Chavez, the legislative history accompanying the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which introduced the concept of a notice to appear, reveals an intent to abandon a two-step practice that allowed an “order to show cause” (the predecessor to the NTA) to be filed separately from a hearing notice. Instead, Niz-Chavez argues, Congress designed the NTA to be a single form with all of the required information, with the goal of avoiding disputes about proper service. Niz-Chavez also highlights language from the preamble of a post-IIRIRA proposed immigration rule, which unequivocally stated that the NTA must include the time and place of the hearing. Yet despite this language, the regulation that was ultimately issued permitted a two-step process, requiring time and date information on the NTA only “where practicable.” According to the government, the enactment of this regulation undercuts Niz-Chavez’s narrative, and is consistent with a reading of the legislative history that does not specifically proscribe notice via multiple documents.
The government casts Niz-Chavez’s argument as an “elevation of form over function,” noting that a notice to appear is defined in Section 1229(a) as “written notice,” which can arguably be provided via more than one document. The parties also dig into neighboring provisions in the INA, marshaling language and legislative history to support their respective interpretations. Here, too, the government attempts to disaggregate the uppercase Notice to Appear – the actual document served – from the statutory concept of a notice to appear, which, in their view, could take the form of various written notices.
A significant portion of the briefing examines whether deference to the decision in Mendoza-Hernandez is required under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which generally prohibits courts from second-guessing an agency’s reasonable interpretation of ambiguous laws. Advocates have consistently sought to chip away at Chevron deference in the immigration context, and Niz-Chavez offers another vehicle to make that case. According to Niz-Chavez, the Board of Immigration Appeals insufficiently explained its “about-face” in Mendoza-Hernandez, abandoning contrary precedent while failing to engage with the statutory text and history. While Niz-Chavez casts the board’s decision as unreasonable, the government disputes that characterization with a detailed explanation of the board’s reasoning. The parties also spar about whether Chevron deference should be afforded more generally in immigration cases, with the government emphasizing that deference is consistent with the political branches’ primary role in immigration matters.
The parties and various amici also debate the practical consequences of the two-step approach endorsed by the government. An amicus brief submitted by former immigration judges and members of the Board of Immigration Appeals argues that NTAs lacking date and time information occupy a “no man’s land” in the immigration system, and can lead to “errors in recordkeeping or faulty service.” This, the former officials argue, necessarily complicates the work of immigration judges, who must conduct time-intensive inquiries into the propriety of service. Amici also rebuke the immigration court system for issuing NTAs with “dummy” dates and times after Pereira, and note the troublesome outcomes resulting from this practice, including missed hearings and orders of removal. The government offers that orders of removal premised on improper service are subject to reopening under the INA, and invokes the possibility of executive branch overreach in favor of noncitizens, suggesting that an agency seeking to wholly undermine the stop-time rule might choose to stop placing time and date information on any NTA.
Given the similarities between this case and Pereira, the outcome in Niz-Chavez is likely to turn on whether the justices believe the logic of Pereira applies equally to this question and compels a ruling in favor of Niz-Chavez. At the same time, the court must also assess whether the government truly needs the flexibility inherent in a two-step process – that is, whether the logistics of enforcement and removal operations necessitate the practice, or whether it simply enables executive branch inefficiency. The Pereira court opined that the government should have the technological wherewithal to include date and time information on NTAs, but it remains to be seen how the justices will weigh this underlying policy question. Whether premised on statutory, historical or practical grounds, the court’s ultimate decision will affect not only the functioning of agencies, but the lives of thousands of noncitizens seeking relief in removal proceedings.