The Supreme Court issued an opinion this week in Niz-Chavez v. Garland. It held that DHS must provide aliens hearing times and dates in their “Notices to Appear” (NTAs, the charging documents in removal proceedings) to bar them from accruing additional presence in the United States for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (INA). If the Court reads the rest of the INA as narrowly, it may actually be good for efforts to push the president to enforce the law.
Briefly, that relief (known as “42B cancellation”) allows aliens unlawfully present to seek green cards if they: have been physically present for 10 years; establish good moral character during that period; have not been convicted of certain criminal offenses; and establish that “removal would result in exceptional and extremely unusual hardship to” certain qualifying relatives.
Section 240A(d)(1) of the INA stops the clock on accrual of that 10 years’ physical presence when certain events occur. Most pertinently, that “stop-time rule” kicks in “when the alien is served a notice to appear under” section 239 of the INA. (Emphasis added, for reasons I will explain below.)
As I noted in a post last June when the Court agreed to take this case, Congress created the stop-time rule because aliens in deportation proceedings would delay their cases to accumulate the seven years’ physical presence required for suspension of deportation, the precursor to 42B cancellation.
Under sections 239(a)(1)(A)-(G) of the INA, 10 categories of information must be provided in an NTA, including the grounds of removability. Most importantly for this case, section 239(a)(1)(G)(i) requires that the “written notice” in removal proceedings include the time and place of the first hearing, which is called the “initial master calendar hearing” and is similar to an arraignment in criminal court.
The majority in Niz-Chavez held that an NTA that does not include the time and the place for that initial master hearing does not trigger the stop-time rule, even if the alien subsequently receives a “hearing notice” containing such information from the immigration court before accruing 10 years of physical presence.
That was not the decision that I was expecting when I wrote about the oral arguments in Niz-Chavez in November, largely because I failed to appreciate how picky Justice Gorsuch (who wrote the majority opinion for himself and Justices Thomas, Breyer, Sotomayor, Kagan, and Barrett) was about grammar.
Note that the partially emphasized quote from section 240A(d)(1) of the INA above refers to “a notice to appear”. Justice Gorsuch latched onto that single indefinite article “a” to conclude that Congress in creating 42B cancellation of removal in 1996 intended that only a single NTA that included the time and place for that initial master calendar hearing would trigger the stop-time rule.
Given the fact that when Congress promulgated 42B cancellation in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), it did all that it could to circumscribe 42B cancellation relief, that was almost definitely not its intent. But that was how Justice Gorsuch read that paragraph, so it’s the law.
Justice Kavanaugh, writing for the dissent (which included Chief Justice Roberts and Justice Alito), disagreed on both grammatical and practical grounds.
Combined, the decision and dissent run 41 pages, with Justices Gorsuch and Kavanaugh going at it with the punctiliousness of Oxford dons and the tenacity of barroom drunks arguing Tom Brady vs. Joe Montana. The whole thing could have been wrapped up in two sentences, one from each.
On the practical front, however, Niz-Chavez himself received an NTA that did not contain the time and date of the hearing, but he received that information two months later. He actually showed up at the Detroit immigration court for that hearing at 8:30 am on June 25, 2013, as directed.
He conceded removability, but did not apply for 42B cancellation because he had only been in the United States for eight years. He thereafter requested, and was granted, the privilege of voluntary departure, but has never apparently left. This case all arose after that.
Justice Kavanaugh noted that this is not the first time that the Supreme Court considered the issue.
In Pereira v. Sessions (which I analyzed in a July 2018 post shortly after it was issued), the Court held that the stop-time rule did not bar a 42B application where the alien received an NTA without a time or date of the hearing, but didn’t receive the actual hearing notice containing that information until after he had been here for 10 years.
The Court in Pereira, however, did not decide whether the government could serve the Notice to Appear in two documents instead of just one to trigger the stop-time rule. Niz-Chavez settles the question.
That July 2018 post is captioned “SCOTUS Sets Up Potential Immigration Train Wreck”, not because of anything having to do with 42B cancellation, but because, as the Court noted in Pereira, almost no NTAs that were issued over the preceding three years contained the time and date of the proceedings.
Why? In 1996, when IIRIRA was passed, there were many fewer removal cases, and the agency that issued NTAs (the then-Immigration and Naturalization Service) was in the Department of Justice with the immigration courts, albeit in a different component.
Today, tens of thousands of immigration cases are commenced per month, and NTAs can be issued by CBP, ICE, or USCIS — each of which is now in a different department, DHS, from the courts (they are still in DOJ). It is a miracle that any NTAs actually contain the time, date, and place of the initial master calendar hearing.
If a single NTA were required to vest the immigration court with jurisdiction over those cases, nearly every alien in those cases could move to terminate their proceedings as improperly filed.
Fortunately, as Justice Kavanaugh noted: “The Court does not dispute (and cannot dispute) that the Government can initiate removal proceedings by providing written notice in more than one document, so long as the notice encompasses all the statutorily required information.” I trust that many aliens will try to extend Niz-Chavez to terminate proceedings, however.
In the interim, though, instead of the “train wreck” I feared, the immigration courts will simply be faced with a multi-car pileup, as (likely tens of thousands) of illegal aliens (1) with removal cases that have been dragging on for years; (2) who have qualifying relatives; and (3) who received NTAs that did not contain the time and/or date of their initial master calendar hearings apply for 42B cancellation — which thanks to Niz-Chavez, they are now eligible to do.
ICE will also have to scramble to re-serve NTAs on aliens who are approaching the 10-year presence mark to prevent them from becoming eligible (again, in clear violation of Congress’s intentions in IIRIRA) for 42B cancellation while they are in removal proceedings.
Given the fact that, as I explained in a February 10 post, the Biden administration has all-but abandoned interior enforcement, however, ICE will probably not be allowed to do so. Grants of 42B cancellation are capped at 4,000 per year, though, so immigration judges will simply be forced to hear applications for that relief that they will not be able to grant, needlessly adding to their 1.3 million-case backlog.
All over the indefinite article “a”.
Note, however, that this case sets an interesting precedent. As I explained above, the Biden administration has largely abandoned interior immigration enforcement. The Attorney General of Texas, Ken Paxton, is suing the federal government over certain of those policies, including ICE’s refusal to take custody of criminal aliens who are about to be released from the state’s prisons.
Section 236(c)(1) of the INA states that DHS “shall take into custody any alien who” is removable on most criminal grounds “when the alien is released.” The “shall” in that context is commonly interpreted as “mandatory” language, meaning that DHS does not have discretion not to take those aliens into custody.
Similarly, section 241(a)(1)(A) of the INA states: “Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.”
Paxton is well down the road on challenging Biden’s 100-day moratorium on the deportation of aliens under orders of removal, with federal district court Judge Drew Tipton placing a nationwide ban on that moratorium in February.
The Biden administration will likely argue that it has “prosecutorial discretion” not to take criminal aliens into custody, and not to remove any alien it does not want to. But if “a” means “a” in the INA, then “shall” means “shall” — and strictly limits the administration’s discretion not to enforce the law.
Several people have asked me why Justices Thomas and Barrett signed on to Justice Gorsuch’s decision (and why Justice Gorsuch issued that decision to begin with). My response is that they are thoughtful jurists who interpret the law as it is written and who are true to the text (honestly, there is merit in both Justices Gorsuch’s and Kavanaugh’s decisions, even though they reached the opposite conclusion).
Thoughtful jurists who are faithful to Congress’s commands and who interpret the law as written are likely just what Ken Paxton is banking on.