Campos-Chaves v. Garland

TEXTUAL INTERPRETATION OF SECTIONS 1229 AND 1229a

Campos-Chaves argues that the plain language of the Immigration and Nationality Act (“INA”) requires the Department of Homeland Security (“DHS”) to state the time and place of a hearing in its initial Notice to Appear (“NTA”). Brief for Petitioner, Campos-Chaves at 15. Campos-Chaves contends that the DHS did not provide proper notice because, after the NTA, any further DHS communications about removal proceedings only constitute proper notice under 8 U.S.C. § 1229(a) when they “change” the removal proceedings to a “new” time and place. Id. at 15–16. Campos-Chaves reasons that the ordinary meanings of the words in Section 1229(a) require the DHS to state a time and place in the NTA because “change” and “new,” especially in a scheduling context, presume the existence of “a previously set time or place.” Id. at 16–17. Campos-Chaves adds that previous Supreme Court decisions support his interpretation because the opinions in Pereira v. Sessions and Niz-Chavez v. Garland agree that Section 1229(a) assumes that the DHS states a time and place in the NTA. Id. at 17–18. Campos-Chaves also argues that the NTA must also specify a date to comply with the statutory prohibition in 8 U.S.C. § 1229a(B)(4)(A) against an NTA scheduling a hearing “earlier than 10 days after the service of the [NTA].” Id. at 24–25. Singh argues that, in addition to his noncompliant NTA, he is also eligible for rescission because he did not receive the DHS’s communications after the NTA. Brief for Respondent, Singh at 76. Singh reasons that the word "receive” in 8 U.S.C. § 1229a(b)(5)(C)(ii) demonstrates Congressional intent to require actual, rather than constructive, notice. Id.

Garland counters that Campos-Chaves received proper notice of his removal proceedings according to the plain language of the INA because the word “or” in 8 U.S.C. § 1229a(b)(5)(A) is disjunctive. Brief for Respondent, Garland at 26–27. Garland clarifies that the DHS provides proper notice when it sends either (1) an NTA specifying a time and place or (2) a subsequent communication specifying a time and place. Id. Garland also contends that the DHS’s subsequent communications sufficiently “change” the NTA and add “new” information because they replace information such as “To Be Determined” with time and place data. Id. at 28–29. Garland further posits that “changes” under Section 1229(a) include modifications that add specific information where none previously existed because noncitizens must also report “any change” in address or telephone number even if they did not previously have an address or telephone number to report. Id. at 30–31. Garland adds that his interpretation is widely supported because both Supreme Court Rule 29 and 34 U.S.C § 20913(c) impose reporting requirements about “changes” to corporate identity and employment, respectively, even when there is no previous information to amend. Id. at 29-30. Garland contends that Campos-Chaves misreads the “earlier than 10 days” prohibition because the purpose of that rule is to permit the noncitizen "the opportunity to secure counsel.” Id. at 35–36.

Garland also argues, in response to Singh’s contention, that the DHS is responsible for constructive notice, not actual notice, of the removal hearing’s time and place because the Supreme Court’s opinion in Krupski v. Costa Crociere S.p.A. used the word “receive” to describe constructive notice. Id. at 34.

LEGISLATIVE INTENT IN SECTIONS 1229 AND 1229a

Campos-Chaves contends that Congressional intent supports his interpretation because the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) explicitly modified the INA to add time and place requirements in the NTA. Brief for Petitioner, Campos-Chaves at 33. Campos-Chaves elaborates that before the IIRIRA, the DHS could provide time and place information in either its initial or subsequent communications to the noncitizen. Id. Campos-Chaves also submits that Congress could not have intended to support Garland’s interpretation because Garland’s interpretation would permit the DHS to “[forgo] NTAs altogether.” Id. at 28. Campos-Chaves argues that the government has previously agreed that Congressional intent does require time and place information in the NTA because the Government’s brief in Niz-Chavez acknowledges that Section 1229 requires an NTA to contain “initial hearing information.” Id. at 28–29.

In opposition, Garland argues that Congressional intent supports his interpretation because the structure of Section 1229a denies rescission of removal in nearly all cases. Brief for Respondent, Garland at 39–44. Garland adds that the IIRIRA and its predecessor, the Immigration Act of 1990, aimed to reduce rescission because the two acts added mandatory in absentia orders, strictly limited rescission, and generally sought to close “procedural loopholes.” Id. at 46–49. Garland also submits that Congress could not have intended to support Campos-Chaves’ interpretation because rescission based on a technical error would be illogical. Id. at 45–46. Garland further argues that the IIRIRA preserved the DHS’s option to omit definitive time and place information in the NTA because the IIRIRA permits the DHS to send subsequent communications with additional information. Id. at 51. Garland argues that Niz-Chavez is not a relevant precedent because it sought to determine when an NTA is incomplete, while no party in Campos-Chaves’ case disputes that the NTA was incomplete. Reply Brief for Respondent at 2.

DEFERENCE TO THE BOARD OF IMMIGRATION APPEALS

Campos-Chaves contends that the Board of Immigration Appeals (“BIA”) is not entitled to Chevron deference because the statute in question is not “genuinely ambiguous,” so no agency is empowered to interpret the statute. Brief for Petitioner, Campos-Chaves at 42–43. Campos-Chaves reasons that two of the Supreme Court’s “established interpretive principles” preclude any ambiguity: first, the Supreme Court construes the INA narrowly, “rejecting the government’s doomsday predictions,” as in Moncrieffe v. Holder; second, the Supreme Court historically construes statutory ambiguities in favor of the noncitizen. Id. at 40–42. Campos-Chaves adds that, even if the BIA would normally have been entitled to deference, the Supreme Court should not defer to the BIA’s interpretation in this instance because the BIA departs from any reasonable interpretation of the relevant statutory language. Id. at 43–46. Specifically, Campos-Chaves argues, the BIA’s interpretation ignores the Supreme Court’s readings of Section 1229 in Pereira and Niz-Chavez, which require the DHS to state a time and place in the NTA. Id.

Garland argues that the BIA is the entitled to Chevron deference because Congress empowered the Attorney General to decide “all questions of law” in the removal context and the Attorney General delegated that power to the BIA. Reply Brief for Respondent, Garland at 28; Brief for Respondent, Garland at 55–56. Garland argues that the BIA’s interpretation is consistent with Supreme Court precedent because Pereira did not necessarily mandate time and place information in all NTAs and because Niz-Chavez concerned a meaningfully different provision in the INA. Reply Brief for Respondent, Garland at 27–28. Garland argues that the BIA’s interpretation also merits deference because the BIA has consistently applied its interpretation across many different immigration cases. Brief for Respondent, Garland at 56–58. Garland adds that the Court has recognized Chevron deference as particularly prudent in the immigration context because interpreting the INA may implicate “especially sensitive political functions [such as] foreign relations.” Reply Brief for Respondent, Garland at 29. Garland explains that, notwithstanding Campos-Chaves’ “established interpretive principles,” the Supreme Court does defer to the BIA’s “reasonable interpretations of ambiguous INA provisions, even in cases involving the removal process.” Id. at 29–30.