On June 14, the Supreme Court issued its opinion in Campos-Chaves v. Garland, a case you likely never heard of but would know well had the 5-4 decision gone the other way. That’s because if the justices had accepted the reasoning of the appellants—and the Ninth Circuit—thousands of aliens ordered deported in absentia when they failed to appear in immigration court and who were subsequently removed would have been able to return to the United States and fight their cases anew, further burdening already overwhelmed immigration judges. As I suggested six years ago when such a case first appeared on the horizon, a contrary decision would have triggered an “immigration train wreck”.
Notices to Appear and Removal Proceedings
By way of background, section 240 of the Immigration and Nationality Act (INA) sets out the framework immigration judges (IJs) must follow in holding hearings and making rulings in removal proceedings, and section 239 of the INA sets the standards the government must follow in initiating those proceedings.
By regulation, removal proceedings commence, and jurisdiction over those proceedings vests with the immigration court, when DHS files a “charging document” (by practice, a document called a “Notice to Appear” or “NTA”, Form I-862) with the immigration court.
Section 239(a) of the INA is captioned "Notice to Appear", and paragraph (1) lists the information DHS must provide to the alien in such NTA, including the allegations and the charges, the alien's right to counsel, and most pertinently, “[t]he time and place at which the proceedings will be held”.
Notably, Congress in that provision did not require that what it described as a “notice to appear” be prepared or served by DHS, the Department of Justice (DOJ), or any other identified entity.
The problem is that the NTA, Form I-862 (issued by DHS) does not always contain all of the information set forth in section 239(a)(1) of the INA, and in particular often omits the time and/or place of the hearing. Why?
Because by regulation, the immigration court (within DOJ) is responsible for scheduling hearings. For that reason, the regulations state that the NTA must contain “the time, place and date of the initial removal hearing” (known as the “initial master calendar”), but only “where practicable”. After that hearing (and often in scheduling that hearing), the IJ serves the hearing notice.
In-Absentia Removal Orders
Again, section 240 of the INA guides removal proceedings, and paragraph (b)(5) therein requires IJs to order aliens who fail to appear for a scheduled hearing removed in absentia, provided the alien received the “written notice required under paragraph (1) or (2) of” section 239(a) of the INA—the INA provision that governs the issuance of the NTA. I added that emphasis on the word “or”.
I’ve already discussed section 239(a)(1) of the INA, but key to this opinion, as I’ll explain below, is section 239(a)(2), captioned “Notice of change in time or place of proceedings”.
Again, the former provision directs DHS to include the time, place, and date of the initial master calendar hearing on the NTA, but paragraph (a)(2) requires the government to serve a subsequent notice on the alien if the time or place of that hearing changes.
“SCOTUS Sets Up Potential Immigration Train Wreck”
Which brings me to a July 2018 post headlined “SCOTUS Sets Up Potential Immigration Train Wreck”, in which I analyzed the Court’s then-recent opinion in Pereira v. Sessions.
At issue in Pereira was whether a removable alien who had been served an NTA that did not contain the time and date of his initial hearing was barred from applying for a form of relief called “cancellation of removal” under section 240A(b) of the INA.
To prove eligibility for cancellation of removal under that provision, among other requirements, an alien must have “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of” that application. An alien granted cancellation of removal receives lawful permanent residence (a “green card”).
In that opinion, the Supreme Court held that an NTA “that does not inform a noncitizen when and where to appear for removal proceedings is not” an NTA under section 239(a) of the INA, “and therefore does not trigger the stop-time rule”.
That’s a rather unique and specific situation, which raises the question why I described the opinion in Pereira as a “potential trainwreck”.
It’s because, as I explained, nearly every NTA DHS issued in the three-year period prior to Pereira failed to include the time or place of the initial master calendar hearing and were what the Court therein described as “defective”.
Again, as noted above, the regulations permit the filing of an NTA that omits the time and place of the first hearing when it is not “practicable” for DHS to include such information in the NTA, but regulations are just the agency’s interpretation of the statute.
If the courts thereafter determined that DHS’s and DOJ’s regulatory interpretation didn’t comply with the language in sections 239(a) and 240 of the INA, the regulation would have been tossed.
Reading the tea leaves, therefore, I opined:
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. [Emphasis added.]
Boy was I right.
Campos-Chaves v. Garland
That dire prospect brings me back to the Court’s 5-4 opinion in Campos-Chavez last week.
The caption notwithstanding, it’s actually a consolidated case involving three aliens in two different circuits: Moris Esmelis Campos-Chaves, an El Salvadoran national who entered illegally in 2005 and whose case was considered in the Fifth Circuit; Varinder Singh, an Indian national who entered illegally in 2016, whose case was heard in the Ninth Circuit; and Raul Daniel Mendez-Colin, a Mexican national who entered illegally in 2001 and who also filed an appeal in the Ninth Circuit.
Each was served a defective NTA that did not include at least part of that “time and place” notification for the initial master calendar hearing; each subsequently received notice of the time and place of that hearing issued under section 239(a)(2) of the INA; and each at some point in the process was ordered removed in absentia when he failed to appear.
Mendez-Colin was actually deported following the issuance of that removal order, as I’ll explain below.
Each filed a motion to reopen his in-absentia removal order, each appealed the denial of their motions to the Board of Immigration Appeals (“BIA”, the administrative appellate tribunal), which the BIA denied, and each filed an appeal of that order with his respective circuit court, arguing that his respective NTA was defective under Pereira, divesting the IJ of jurisdiction to issue a removal order.
The Fifth Circuit dismissed Campos-Chaves’ appeal, finding he had received notice of the subsequent time and place of his initial master calendar hearing, and that he was amenable to an in-absentia order of removal under section 240(b)(5) of the INA when he failed to appear.
Singh also failed to appear for his initial master calendar hearing, and the Ninth Circuit held that because his NTA was defective under Pereira, his subsequent in-absentia removal order was invalid despite the fact that he subsequently received a hearing notice issued under section 239(a)(2) of the INA.
Mendez-Colin actually showed up for his initial master calendar hearing after receiving his 239(a)(2) notice and asked for cancellation of removal under section 240A(b) of the INA. He never filed for that relief, however, because he failed to show up at a later hearing, though his lawyer (who had lost contact with his client and was served the removal order) did.
He subsequently filed two motions to reopen, in December 2003 and February 2004, each of which the IJ denied, and his appeal of that second denial was denied by the BIA because he had already been deported.
As the Supreme Court explained: “About 15 years later, Mendez-Colin moved to reinstate his appeal, now claiming that his in-absentia order of removal was rescindable because of his defective NTA”. The same three-judge panel of the Ninth Circuit that heard Singh’s case also heard Mendez-Colin’s and granted his appeal.
It’s anticlimactic to note at this point that the justices’ majority opinion hinged on their conclusion that, under section 240(b)(5) of the INA, either a non-defective NTA issued under section 239(a)(1) of the INA or a subsequent notice under section 239(a)(2) was sufficient to place an alien respondent on notice that he or she must appear in immigration court or face an in-absentia removal order.
The entire, 43-page opinion literally assesses, in-depth, what exactly Congress meant when it included that two-letter conjunction, “or”, in section 240(b)(5) of the INA. The majority held it was either a non-defective NTA or a subsequent notice; the dissent held that it required both to sustain an in-absentia order.
As Justice Jackson, writing for herself and Justices Sotomayor, Kagan, and Gorsuch (himself a stickler for such precision in both Pereira and a later 240A(b) opinion involving a defective NTA, Niz-Chavez v. Garland, which he authored), complained:
Today’s cases arise because the Government persisted with its practice of issuing facially defective NTAs in the wake of our two prior pronouncements. But, apparently, the third time is the charm, for the majority now finally blesses the Government’s abject noncompliance with the statute’s unequivocal command.
Did I mention that Niz-Chavez prompted a fight between Justices Gorsuch and Kavanaugh over what Congress meant in using the indefinite article “a” in section 240A(b) of the INA? That one ran 41 pages.
Congress’s Clear Intent
The NTA requirements in section 239(a) of the INA, the cancellation of removal statute (section 240A(b) of the INA), and the in-absentia removal order requirement in section 240(b)(5) of the INA were all added to the act by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
As the name suggests, IIRIRA was passed to “reform” the INA, specifically by closing loopholes courts created by reading requirements and exceptions into the act. It certainly didn’t intend to create any new loopholes that facially removable aliens could exploit.
The current Supreme Court, however, often ignores any congressional intent not expressly spelled out in statutory language and given the 100-plus times Congress has amended the INA since the act was first passed in 1952, that language can be less than clear.
That said, and despite the textual imperfections in IIRIRA, Congress’ intent therein could not be clearer: To give alien respondents their day in court and remove them if they failed to take the opportunity to receive due process.
The Supreme Court’s June 14 opinion in Campos-Chaves is likely the most important immigration ruling in history you’ve never heard of, and likely won’t hear about again. Had this 5-4 decision gone the other way, an already overburdened immigration-enforcement system probably would have collapsed into chaos, and thousands of deported aliens would be returning to the United States. Train wreck averted.