Issues
Must the government serve a “notice to appear” as defined by 8 U.S.C. § 1229(a), providing a noncitizen in removal proceedings with the required information about the proceedings, in a single document?
A notice to appear in accordance with 8 U.S.C. § 1229(a) triggers a stop-time rule that prevents noncitizens from accruing uninterrupted time spent in the United States—ten years of which makes a noncitizen eligible to cancel removal. The issue presented to the Supreme Court is whether the information required for a notice to appear must be included in a single document or whether it may be included in multiple documents. Agusto Niz-Chavez argues that the text and purpose of Section 1229(a) indicates that the required information must be included in a single notice and that the Court should not defer to the Board of Immigration Appeal’s (“Board”) interpretation of the statute. In contrast, Attorney General William Barr argues that the text and purpose of Section 1229(a) permits the government to issue notices to noncitizens across multiple documents and the Court should grant the Board deference. The outcome of this case has important implications for the procedural due process rights of immigrants subject to removal proceedings and the administrative burden of those proceedings on immigration courts and other government agencies.
Questions as Framed for the Court by the Parties
Whether, to serve notice in accordance with 8 U.S.C. § 1229(a) and trigger the stop-time rule, the government must serve a specific document that includes all the information identified in Section 1229(a), or whether the government can serve that information over the course of as many documents and as much time as it chooses.
Facts
8 U.S.C. § 1229(a) requires that noncitizens in removal proceedings be served with a notice to appear. Pereira v. Sessions at 2109. The receipt of this notice activates the stop-time rule, which prevents further accrual of time of continuous residence in the United States—ten years of which are required to make a noncitizen eligible for cancellation of removal—while the removal proceedings are underway. Id. In Pereira v. Sessions, the Supreme Court held that the stop-time rule is not triggered by a document labeled “notice to appear” when that notice fails to provide the noncitizen with information about the time and location of his or her hearing. Id. at 2110.
Agusto Niz-Chavez is a citizen of Guatemala. Niz-Chavez v. Barr at 2. While living in Guatemala, Niz-Chavez and his family were involved in a land dispute with neighboring villagers, who eventually killed Niz-Chavez’s brother-in-law and stormed his home to take control of the land. Id. Fearing further conflict, Niz-Chavez left Guatemala for the United States, where he has resided since 2005. Id.
On March 26, 2013, Niz-Chavez received a notice to appear before a Detroit immigration judge for removal proceedings. Id. at 3. This notice to appear did not include any information on the date or time of his hearing. Id. Two months later, on May 29, 2013, Niz-Chavez received a second notice, this time informing him that his hearing was scheduled for June 25, 2013. Id. Niz-Chavez appeared for his June 2013 hearing and, based on his fear of returning to Guatemala, sought withholding of removal and relief under the Convention Against Torture. Id. A hearing on the merits of Niz-Chavez’s claims was held on September 13, 2017, and the immigration judge denied Niz-Chavez’s claims on November 8, 2017 and ordered his removal. Id.
Niz-Chavez appealed the denial of withholding of his removal to the Board of Immigration Appeals (“Board”). Id. In addition to challenging the immigration judge’s decision on the merits, Niz-Chavez also argued that his case should be remanded because he was now eligible for cancellation of removal under the new statutory interpretation of the 8 U.S.C. § 1229(a) notice requirements established by the Supreme Court’s 2018 Pereira v. Sessions decision. Id. The Board, however, affirmed the decisions of the immigration judge and denied Niz-Chavez’s request for remand. Id. at 4.
Niz-Chavez then petitioned the United States Court of Appeals for the Sixth Circuit for relief, arguing again that he was eligible for cancellation of removal because he never received a document that would qualify as a notice to appear under 8 U.S.C. § 1229(a). Id. at 4, 11. Thus, Niz-Chavez contended that the stop-time rule did not activate in 2013, and he had accrued over ten years of continuous residence in the United States by the time of his 2017 hearing. Id. at 11. The Sixth Circuit affirmed the Board, reasoning that multiple documents can satisfy the notice to appear requirement when, considered together, they contain all of the information required for a notice to appear under 8 U.S.C. § 1229(a). Id. at 12. Thus, the court held that Niz-Chavez stopped accruing continuous residence on May 29, 2013 when the second notice containing the time and date information for his hearing was served, and therefore, he was ineligible for cancellation of removal. Id.
On January 9, 2020, Niz-Chavez petitioned the Supreme Court of the United States for a writ of certiorari, which the Court granted on June 8, 2020.
Analysis
THE TEXT AND PURPOSE OF SECTION 1229(a)(1)
Petitioner Niz-Chavez argues that the language of 8 U.S.C. § 1229(a)(1) requires that the requisite notice to trigger the stop-time rule must be conveyed in a single document rather than multiple documents. Brief for Petitioner, Agusto Niz-Chavez at 24. Niz-Chavez highlights that the statute calls for “a ‘notice to appear,’” where the singular article “a” implies that the notice should consist of a single document. Id. at 24–25. According to Niz-Chavez, Congress specified a clear definition for a “notice to appear,” requiring the notice to be written and to include seven distinct items of information about the proceeding. Id. at 24. Niz-Chavez asserts that written notice that fails to include all the required information does not comply with Section 1229(a)(1) and therefore does not initiate the stop-time rule. Id. Moreover, Niz-Chavez emphasizes that the structure of the statute mandates that all the information about the removal proceeding that must be disclosed under the statute has to be included in a single document. Id. at 27. Niz-Chavez notes that the list of required information under Section 1229(a)(1)(A)–(G) describes seven distinct but related details of one removal proceeding. Id. at 28. Therefore, Niz-Chavez asserts that the relationship among the details—that they are dependent on one another so that all are required for a noncitizen to appear and participate in a removal proceeding—indicates that all pieces of information must be provided together in a single document. Id.
Niz-Chavez further contends that the purpose of the notice supports a single notice document requirement. Id. at 39. Niz-Chavez argues that Congress amended notice requirements to fill gaps in notice procedures for a more effective and thorough process. Id. at 40. Furthermore, Niz-Chavez asserts that the purpose of a notice to appear is not merely to ensure noncitizens’ appearance in immigration court, but instead to meaningfully inform noncitizens of the charges against them so that they can properly prepare for their hearings. Id. at 42. Finally, Niz-Chavez disputes that a single notice document frustrates the purpose of the stop-time rule, which aimed to prevent abuses of the administrative process by using delays to accrue months or years of continuous presence. Id. at 43. Instead, Niz-Chavez emphasizes that service of a proper notice triggers the stop-time rule. Id. Moreover, Niz-Chavez contends, noncitizens are unable to delay the government from observing Section 1229(a)’s notice requirements. Id. Therefore, forcing the government to comply with the notice requirements of Section 1229(a), Niz-Chavez maintains, does not permit noncitizens to use delays to their advantage to accumulate continuous presence. Id.
Respondent William Barr counters that the language of Section 1229(a)(1) does not require a notice to appear to be a single document. Brief for Respondent, William P. Barr at 13. According to Barr, the plain text of the statute imposes only two requirements, that notice has to be (1) written and (2) given in person if possible, and if not, by mail or to the noncitizen’s counsel. Id. at 15. Barr maintains that Congress did not include in the language of the statute an additional requirement that the information must be included in a single notice document and that Niz-Chavez fails to point to analogous text indicating otherwise. Id. at 15-16. Furthermore, referring to the Dictionary Act, Barr argues that Congress’s use of the singular article “a” can refer to multiple things. Id. at 17. Therefore, Barr concludes, “a ‘notice to appear’” may refer to multiple documents, so that providing the required information under Section 1229(a)(1) in more than one document does not explicitly fail to satisfy the notice requirements. Id. Furthermore, Barr contends that the common usage of the term “notice” includes information conveyed in segments, providing the examples of “a manuscript,” “a newspaper,” and “an application,” all of which a publisher, subscriber, or employer may receive parts of before receiving the rest. Id. at 17–18. Finally, Barr disputes that the relationship among the pieces of information in Section 1229(a)(1)(A)–(G) is relevant to whether the information must be provided in one document or two. Id. at 20. According to Barr, while all the information is pertinent to the proceeding and must be provided in written notice, that this information must be included in a single document is a non sequitur. Id.
Barr further asserts that a single notice document requirement would subvert the cancellation of removal policy as a limited form of relief. Id. at 23. Barr contends that the stop-time rule is intended to cease accrual of periods of continuous presence once a notice to appear is served. Id. at 24. Barr maintains that once a noncitizen is served with written notice, the noncitizen cannot continue to depend on continuous presence in the United States as a basis for additional relief. Id. at 23. Accordingly, Barr argues that notice under Section 1229(a)(1) subjects all noncitizens to the same conditions, represents a commitment to advance removal proceedings, and prompts noncitizens to prepare for the hearing and hire a lawyer. Id. at 25–26. According to Barr, a noncitizen’s qualification for discretionary relief is not impacted by the number of documents providing information about the proceeding, so there is no advantage in receiving one document rather than two. Id. at 26. Barr cautions that Niz-Chavez’s interpretation would treat two noncitizens receiving notice on the same day differently depending on whether the noncitizen received one document or two. Id. at 27. Moreover, Barr emphasizes that one of the two noncitizens would continue to accumulate periods of continuous presence despite receiving all the necessary information and remain eligible for cancellation of removal. Id. at 27–28.
DEFERENCE TO BOARD OF IMMIGRATION APPEAL’S STATUTORY INTERPRETATION
Niz-Chavez argues that the Court should not defer to the Board’s interpretation in In re Mendoza-Hernandez because it failed to provide a reasoned justification for its shift in policy. Brief for Petitioner at 48. According to Niz-Chavez, the Board’s rejection of a single notice document requirement is inconsistent with previous statutory interpretations by the Department of Justice ("DOJ"). Id. at 49. Specifically, Niz-Chavez highlights regulations passed by the Immigration and Naturalization Service (“INS”) and the Executive Office for Immigration Review (“EOIR”) that rely on their explicit interpretation that Section 1229(a) requires a singular notice document. Id. Additionally, Niz-Chavez points to two previous Board decisions that are in conflict with its current interpretation: Matter of Ordaz, which characterized a notice to appear as a “single instrument,” and Matter of Camarillo, which prohibited a combination of two documents to satisfy proper service of a notice to appear. Id. Niz-Chavez contends that the Board not only abandoned these determinations in Mendoza-Hernandez, but also did so with little explanation. Id. Regarding its previous decisions, Niz-Chavez maintains, the Board briefly addresses them in a footnote that undercuts its position by acknowledging that notice for a hearing is not incorporated into a notice to appear. Id. Moreover, Niz-Chavez declares that the Board failed to address the regulations by the INS and the EIOR. Id. Thus, Niz-Chavez asserts that the Court should not give deference to the Board’s unsubstantiated reversal. Id.
Barr counters that the Court should defer to the Board’s determination in Mendoza-Hernandez that notice conveying all the required information in either a single document or multiple documents satisfies Section 1229(a)(1)’s written notice requirement, triggering the stop-time rule. Brief for Respondent at 13, 44. According to Barr, only one of the two cases Niz-Chavez identifies as conflicting prior decisions—Camarillo—is relevant, and the Board gave a reasoned explanation for its reversal from that case. Id. at 44. Barr contends that the Board in Camarillo merely disagreed with the consensus that the stop-time rule could only be triggered by supplying all the information detailed in Section 1229(a)(1). Id. at 45. Barr emphasizes that the Board’s conclusion in Camarillo only determined that a notice to appear did not need to include the hearing’s date and time, but instead that the Department of Homeland Security (“DHS”) must serve the specified document. Id. at 44–45. Later in Pereira, Barr argues, the Board recognized its flawed reasoning in its conclusion that Section 1229(a)(1) concerned only a properly labelled document rather than substantive notice requirements. Id. at 45. Barr asserts that the Board’s determination in Pereira that a notice of hearing that provides all the requirements under Section 1229(a)(1) may also serve as written notice because it is separate from a notice to appear is a sufficient explanation of the Board’s rejection of Camarillo. Id. at 45–46.
Discussion
FAIRNESS AND NOTICE
The American Immigration Lawyers Association, American Immigration Council, and Legal Services Providers (collectively “AILA”), in support of Niz-Chavez, argue that the two-step notice process deprives noncitizens of fairness in the removal process. Brief of Amici Curiae American Immigration Lawyers Association, The American Immigration Council, and Legal Services Providers (“AILA”), in Support of Petitioner at 11. AILA asserts that the DHS’s inclusion of false information in the original notices to appear causes noncitizens to expend significant time, energy, and resources to attend nonexistent court hearings. Id. at 13. AILA also contends that bureaucratic deficiencies can cause second notices containing the actual hearing information to arrive after the hearing has already occurred, or not at all. Id. at 21–22. As failure to appear at one’s hearing often means that removal orders are implemented against noncitizens in absentia, AILA maintains that the two-step notice to appear process deprives noncitizens of fundamental fairness by creating a high risk that they will be denied the opportunity to defend themselves and have their cases heard on the merits. Id. at 21.
The Immigration Reform Law Institute (“IRLI”), in support of Barr, counters that the current process is not unfair because noncitizens are still afforded awareness of the proceedings against them. Brief of Amicus Curiae Immigration Reform Law Institute (“IRLI”), in Support of Respondent at 10. IRLI argues that the two-step procedure is not deficient, as the government’s use of multiple documents still satisfies the purpose of notice because it nevertheless provides noncitizens with all of the information necessary for them to be aware of and attend their hearings. Id. at 10–11. IRLI points out that noncitizens who get their second notice, as Niz-Chavez did, are made aware of the date and time of their hearing and thus have an opportunity to appear and be heard. Id. at 11. Furthermore, IRLI contends that the stop-time rule is designed fairly by preventing noncitizens from abusing the immigration court system by delaying their hearings to circumvent continuous residence requirements. Id. at 9.
ADMINISTRATIVE BURDENS
A collective of thirty-three former immigration judges and Board members (collectively “Judges''), in support of Niz-Chavez, argue that the two-step notice process places significant burdens on the immigration court system. Brief of Amici Curiae Thirty-Three Former Immigration Judges and Members of the Board of Immigration Appeals (“the Judges”), in Support of Petitioner at 14. The Judges contend that the use of false hearing time-and-place information in notices to appear causes unmanageable backlogs at court when noncitizens arrive for non-existent hearings, causing long lines at the courthouse that on at least one occasion prevented a noncitizen with a scheduled hearing from attending on time. Id. at 20. The Judges maintain that this process also increases the burden on judges and court staff during hearings, who must take extra time to inquire into the adequacy of notice of the hearing and track down documents before considering the merits of the case. Id. at 17–18. Additionally, the Judges posits that the government is perfectly capable of coordinating across agencies to schedule hearings at the time of the initial notice to appear, pointing to technology that currently grants the DHS access to the EOIR’s scheduling portals and hearing master calendars. Id. at 26.
In contrast, IRLI contends that it is impracticable to expect the government to provide accurate hearing information in the original notice to appear. Brief of IRLI at 8. IRLI argues that requiring that an agency only serve a noncitizen with a notice to appear until after it has all the necessary hearing information would greatly delay immigration proceedings. Id. at 10. IRLI asserts that removal proceedings cannot commence until a charging document, namely the notice to appear, is served and filed with the immigration court, and only then is a date and time set for the hearing. Id. at 8–9. Thus, IRLI maintains, it is impossible to include the hearing information in an original notice to appear, and so the government must use multiple documents to provide complete notice information. Id. at 9.
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Acknowledgments
Additional Resources
- Jennifer Doherty, Feds Tell Justices Two-Part Deportation Notices are Fine, Law360 (Sept. 28, 2020).
- Andrew R. Arthur, Supreme Court to Review Notices to Appear in the 42B Cancellation Context — Part Two, Center for Immigration Studies (Jun. 10, 2020).