SCOTUS Hears Oral Arguments in 'Defective' Notice to Appear Case

Is the NTA one document — or more? The answer could just raise more issues, in hundreds of thousands of cases

By Andrew R. Arthur on November 11, 2020

The Supreme Court heard oral arguments Monday in Niz-Chavez v. Barr, a case that has to do with the "stop-time rule" for accrual of presence for "cancellation of removal and adjustment of status for certain nonpermanent residents" under section 240A(b) of the Immigration and Nationality Act (INA); this is known as "42B cancellation". The Court's ultimate opinion, however, could have broader effects on hundreds of thousands of removal proceedings.

I wrote about the stop-time rule at length when the Court agreed to take this case up in June. Briefly, it bars an alien from accruing the residence and/or presence required for cancellation of removal when the alien commits specified criminal offenses or is served with a notice to appear (NTA, the charging document in removal proceedings) under section 239(a) of the INA.

To be eligible for 42B cancellation, an alien must have been physically present for 10 years or more at the time the application is filed, but service of the NTA stops the clock on accrual of physical presence. As I noted in my June post, Congress created the stop-time rule in response to the fact that aliens in deportation proceedings would delay those proceedings to accumulate the physical presence required to apply for suspension of deportation — the predecessor to 42B cancellation.

There are seven elements that must be included in an NTA, set forth in sections 239(a)(1)(A) through (G), including the grounds of removability. In addition, section 239(a)(1)(G) requires that the "written notice" in removal proceedings state the time and place for the first hearing, which is called the "initial master calendar hearing" and is like an arraignment in criminal court.

The issue is, however, whether an NTA that does not include the time and the place for that hearing is sufficient to trigger the stop-time rule if the alien respondent is subsequently served a "hearing notice" with the time and date of that hearing from the immigration court before accruing 10 years of physical presence.

The Supreme Court previously took a pass on deciding this specific issue in June 2018, when it issued its decision in Pereira v. Sessions. There, the Court held that the stop-time rule did not bar 42B cancellation where the alien received an NTA without a time or date for the initial master calendar prior to accruing 10 years presence, but was not actually served with the hearing notice with that information until after that point.

The issue in Niz-Chavez is slightly different. The alien there received an NTA that omitted the time and date of the initial master calendar hearing, but was served with a hearing notice before he accrued 10 years presence. He contends that in order to trigger the stop-time rule barring him from 42B cancellation, DHS had to serve him with an NTA that included all of the information (including the time and date of the hearing) listed in section 239(a)(1) of the INA.

The government, on the other hand, states that information required under that section could be included in two or more documents, and still trigger the stop-time rule.

The caption of my post analyzing Pereira was "SCOTUS Sets Up Potential Immigration Train Wreck", with good reason having nothing to do with 42B cancellation. As the Court noted there, almost 100 percent of the NTA's that were issued over the preceding three years omitted the time and date of the proceedings.

I explained: "A much larger issue, however, would be if Pereira were applied to all cases involving NTAs that do not include the time and place of the hearing." Why? I continued:

If what the Supreme Court describes as a "defective" NTA is insufficient to vest jurisdiction over a removal case with the immigration court, an argument could be made that any case involving such a defective NTA (which could number in the tens to hundreds of thousands) must be terminated. Taking this one step further, any case in which a final order of removal involving such an NTA has been issued would be amenable to reopening.

As the government noted in its brief opposing certiorari in this case, "jurisdictional issue" is separate from the stop-time rule question in this matter. And the government averred in its response brief that, as of late December 2018, DHS was able to provide time and place information for the initial master calendar hearing on NTAs in non-detained cases, and in at least some detained cases.

At oral argument, however, the government appeared to state that the time and place information was only included in about a third of non-detained NTAs (there were over 500,000 NTAs issued last year). The government further argued that there would be logistical issues in providing that information on NTAs issued by the Border Patrol for aliens apprehended at the border, as the agents would not know whether the alien would be detained or not at the time of the hearing.

The exact argument in Niz-Chavez is rather arcane (and could likely hinge on how the Court interprets a single article —"a" — in a parenthetical in section 239(a)(1) of the INA). But the ultimate determination in this matter may affect that "jurisdictional" issue as much as it does the stop-time rule question in this case.

The government in its response brief notes that the Supreme Court has denied petitions for writ of certiorari on that jurisdictional issue in five cases, but petitions in eight more are pending. Whether the Court takes up those (or invites an untold number more) will likely hinge on how it decides Niz-Chavez, and the language it uses in doing so.

If the single-letter article "a" carries so much weight that the stop-time rule question has now been to the Supreme Court twice, imagine the unintended implications of an opinion that can ultimately run thousands of words.

Personally, I don't think that this is a close case, and that a hearing notice subsequently served on the respondent completes the "written notice" requirements in section 239(a)(1) of the INA, and stops time for 42B cancellation. That said, Justice Gorsuch for one did not seem sold, stating: "I'd like to just step back a moment and I guess I'm curious why the government is pursuing this at all given Pereira."

But regardless of how the Court rules, expect "jurisdictional" arguments premised on so-called "defective" NTAs — those omitting the time and place information — to be raised again, and for the justices to ultimately have to decide the issue.