Supreme Court

Immigrant Seeking to Challenge Removal Prevails with Unusual Supreme Court Line-up

The Supreme Court's 6-3 decision in Niz-Chavez v. Garland is not what you might have expected, but it may be a sign of things to come.


The Supreme Court issued a single opinion today in Niz-Chavez v. Garland, in which the Court considered the adequacy of a "notice to appear" to a deportation proceeding was legally adequate if the notice did not contain all of the statutorily specified information. This matters because a nonpermanent resident aliens otherwise subject to removal may be eligible to remain in the country if they can establish they have been in the country continuously for at least ten years. A notice to appear, however, effectively cuts off the running of this time period. So, in this case, whether the government's notice to appear to Niz-Chavez was adequate would determine whether he is potentially eligible for discretionary relief from deportation.

In a 6-3 decision, the Court held that the government had not provided Niz-Chavez with a statutorily adequate notice to appear because no single document sent to Niz-Chavez contained all of the required information. Justice Gorsuch, wrote for the Court, joined by Justices Thomas, Breyer, Sotomayor, Kagan, and Barrett. Justice Kavanaugh dissented, joined by the Chief Justice and Justice Alito.

We may think of this as a 6-3 Court, but this is not the 6-3 split many would expect. That said, there is something intuitive about this split, in that it resembles the formalist-pragmatist splits we've sometimes seen on the Court before, in which more formalist conservatives (e.g. Thomas, Scalia) would join with the Court's liberals to side with criminal defendants. In this case, the Court's more formalist/textualist conservatives (Gorsuch, Thomas, Barrett) joined with the Court's liberals to hold that if the statute requires "the notice" to contain certain information, the failure of a single notice to contain that information renders it deficient, while the Court's more pragmatic conservatives (Kavanaugh, Alito, and the Chief) dissented on the grounds that this imposes an unreasonable burden and ignores that, as a practical matter, notice of all the relevant info was provided, even if not in a single document. So, while we have not seen this precise lineup before, I would not be at all surprised were we to see it again, particularly in areas such as immigration.

Justice Gorsuch's majority opinion begins in fairly typical Gorsuch style.

Anyone who has applied for a passport, filed for Social Security benefits, or sought a license understands the government's affinity for forms. Make a mistake or skip a page? Go back and try again, sometimes with a penalty for the trouble. But it turns out the federal government finds some of its forms frustrating too. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–546, requires the government to serve "a notice to appear" on individuals it wishes to remove from  his country. At first blush, a notice to appear might seem to be just that—a single document containing all the information an individual needs to know about his removal hearing. But, the government says, supplying so much information in a single form is too taxing. It needs more flexibility, allowing its officials to provide information in separate mailings (as many as they wish) over time (as long as they find convenient). The question for us is whether the law Congress adopted tolerates the government's preferred practice.

As noted above, the majority concludes the answer is "no" The plain text of the statute indicates as much and, as the Court had noted previously in Pereira v. Sessions, the statutory requirements for notices to appear at deportation proceedings mean what they say.

Gorsuch reaffirms the need to interpret statutes in accord with their "ordinary meaning":

When called on to resolve a dispute over a statute's meaning, this Court normally seeks to afford the law's terms their ordinary meaning at the time Congress adopted them. See, e.g., Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___ (2018). The people who come before us are entitled, as well, to have independent judges exhaust "all the textual and structural clues" bearing on that meaning. Id., at ___ (slip op., at 8). When exhausting those clues enables us to resolve the interpretive question put to us, our "sole function" is to apply the law as we find it, Lamie v. United States Trustee, 540 U. S. 526, 534 (2004) (internal quotation marks omitted), not defer to some  conflicting reading the government might advance. . . .

And this, Gorsuch notes, presents a problem for the government:

To trigger the stop-time rule, the government must serve "a" notice containing all the  information Congress has specified. To an ordinary reader—both in 1996 and today—"a" notice would seem to suggest just that: "a" single document containing the required information, not a mishmash of pieces with some assembly required.

The majority opinion concludes:

At one level, today's dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. In this case, the law's terms  ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.

Writing in dissent, Justice Kavanaugh argues that the majority's interpretation is "perplexing as a matter of statutory interpretation and common sense." He argues that the majority's interpretation is unreasonable, and fails to accord proper deference to the political branches. His opinion concludes:

As a matter of policy, one may reasonably debate the circumstances under which a noncitizen who is unlawfully in the country should be removed and should be eligible for cancellation of removal. But those policy choices are for the political branches. Our job is to follow the law passed by Congress and signed by the President. The statute here requires the Government to serve the noncitizen with written notice of the charges and other required information, including the time and place of the hearing. In this case, Niz-Chavez received written notice of the charges and all the required information, including the time and place of his hearing. Niz-Chavez appeared with counsel at his hearing in Detroit on June 25, 2013. Because he received written notice to appear before he had accumulated 10 years of continuous physical presence, he is  not eligible for cancellation of removal

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  1. “As noted above, the majority concludes the answer is “no” The plain text of the statute indicates as much and, as the Court had noted previously in Pereira v. Sessions, the statutory requirements for notices to appear at deportation proceedings mean what they say.”

    It’s a damn shame the same logic does not apply to the first, second, and fourth amendments.

    1. Ahem

      A well regulated Militia, being necessary to the security of a free State

      1. What if this law in question in this case said

        “Access to procedural information, being necessary to the protection of due-process rights, a notice to appear shall be sent containing [the required information].”

        Then would Gorsuch be wrong in narrowly interpreting the operative clause “a notice to appear shall be sent containing [the required information]” ?

        Should he instead say that the point is clearly simply to give “Access to procedural information” so multiple mailings is allowed?

      2. …the right to keep and bear arms shall not be infringed.”

        “Let’s ban carrying arms!”

  2. Gorsuch is truly insufferable. I think he’s probably in the right here, but his writing is so obnoxious that I want to disagree with him.

    1. Wait, how so? = his writing is so obnoxious

      (not being facetious….genuinely curious – I read a lot of your comments)

      1. Under the majority’s theory, the government would have achieved its desired result if it had simply included the first notice as an attachment to the second. Now, maybe that’s the result that Congress required, and if so that’s certainly the rule that the courts should enforce — but the posturing that this decision is striking a powerful blow for the rights of the citizens against an oppressive bureaucracy is risible. Particularly so on the facts of this case, when there’s no serious argument that doing things the “right” way could possibly have affected the respondent’s knowledge of his rights or approach to the case, much less the outcome, and where his argument before the Supreme Court is that he’s entitled to windfall based on a pure technicality. (Again, if he is so entitled, then he should get it. But don’t pretend that this is a huge vindication of individual rights or the cause of justice.)

        Moreover, while my initial reaction is that the majority is probably correct, I’m anything from firmly convinced: at most, I’d say it’s a very close question, with compelling arguments on each side. Which makes Gorsuch’s sneering, strident condemnation of the counterarguments as the product of stupidity or bad faith seem unwarranted (to say the least).

        On top of that, Gorsuch insists on trying to use a folksy, conversational style that he can’t do well, and which always comes across to me as affected and insincere.

        1. Gorsuch is tres wrong. (Which is predictable though; what’s more unexpected is that the 3 liberal Musketeers unwisely joined him for the ride.) I don’t have the energy to go into the details here, but you can peruse the latest posting on Dorf’s blog to get a flavor of the explanation.

          Your (Nas’) assessment of his writing style is totally correct. How funny that a child of lawyers/politicians/cabinet officials, who went to prep school in DC, graduated from Ivy League undergrad and law schools, then got a PhD at Oxford, clerked for the DC Circuit and SCOTUS, spent much of his time in private practice representing business interests, and got started in the federal judiciary based on a recommendation by a billionaire industrialist pal of his, tends to fall flat on his face when trying to pull off the down home “aw shucks” routine. To be clear, I’m not necessarily criticizing his career path or any of his qualifications. But you’d think someone as smart as he is would know better than to attempt that façade when it’s so completely unconvincing.

    2. He’s also obnoxious at oral argument. I agree with him on a number of fronts, but he’s a twat.

      1. Agreed. Somewhat ironic that for all his talk of the importance of civility, he’s the biggest bully on the Supreme Court bench in recent memory.

  3. This is missing a key datapoint. How bad was it?

    If Niv-Chavez received two letters, one with most of the information and a note that the hearing schedule will be sent as soon as it was scheduled, and then the second letter arrived that next week, I would side with Kavanaugh that this line of reasoning is being overly pedantic.

    However, if Niv-Chavez received a dozen mailings over the course of a year in order to get all the required information, I think Gorsuch is right to put his foot down.

    However, I will agree that the simple solution is to have a single form that they should include with every mailing.

    1. Given how strict the government has been with various facets of immigration law when finding reasons to deport or bar aliens, it seems appropriate that the laws be construed as strictly against the government.

      1. Given how strict the government has been with various facets of immigration law when finding reasons to deport or bar aliens, it seems appropriate that the laws be construed as strictly against the government.

        I agree with this whole-heartedly.

        While I can logically believe that the government followed the spirit of the law, they didn’t follow the letter of the law…and if that’s the standard that the citizens are held to, the government should be held to the same standard

    2. Fair point – but the flip side of this argument is that the information missing is the most important: when will the immigrant have the opportunity to assert their due process rights? Otherwise, the government could just send the first letter in every case to stop the 10 years continuous presence from accruing, but never actually set it for a hearing for the immigrant to challenge the determination.

      1. That tactic wouldn’t work, because even under the government/dissent’s construction the stop time rule doesn’t kick in until the second notice.

    3. In this case, the United States commenced removal proceedings against Niz-Chavez in 2013—eight years after he entered the United States. The Government served two documents on Niz-Chavez. In March 2013, Niz-Chavez received the first document, which notified him that he was being charged as removable because he was unlawfully in the country. It explained that he would have to appear for a removal hearing at the immigration court in Detroit at a time to be set in the future. Two months later, he received the second document, which notified him that the removal hearing would occur at the immigration court in Detroit on June 25, 2013, at 8:30 a.m. The two documents together included all the statutorily required information. See § 1229(a)(1). Niz-Chavez appeared with counsel at the scheduled hearing on June 25, 2013.

      1. Thank you. In this case, I have to agree with Kavanaugh that this is being overly pedantic. Yes, the government does routinely enforce these sorts of rules (at one point, I had to argue my way out of a fine over a comma). However, this ruling just gave them the pretext they need to enforce everything as strictly as possible.

  4. How hard is it to create a single form with all of the information needed?

    1. Clearly, it is beyond the capacity of the current crop of bureau-critters.

    2. Well, it would reduce the earnings of the postal union members, so – – – – – –

  5. This strikes me as one of those questions that it is more important to settle some way than to settle any particular way. If, as seems unlikely, Congress finds this particular way sufficiently objectionable — either because the Court misread what an earlier Congress did or because the current Congress has a different view of the matter — Congress can fix it.
    FWIW, I find Gorsuch annoying both when he’s right and when he’s wrong.

    1. “FWIW, I find Gorsuch annoying both when he’s right and when he’s wrong.”


  6. This is absolutely the right outcome based on current precedents.

    What the government is trying to do is say that when people deal with the government, they have to have all their i’s dotted and their t’s crossed. And if they don’t, well then you haven’t met your burden.

    But they don’t want to live up to that same standard. The gov’t wants to be able to say “but there are real world issues that prevent us from following the exact letter of the law, but hey we followed the spirit”.

    I would be OK with that as long as the citizens get the same leeway. But that’s not how the courts have traditionally responded to citizens asking for the same type of leeway or deference.

    The rules need to be the same for the government and the citizens.

  7. How does this square with holding the terms ‘sexual orientation’ and ‘gender identity’ were what Congress meant when it prohibited descrimination on the basis of sex?

    1. You need to exercise more regularly if you’re going to try for reaches that far.

    2. That’s not what the Court held.

  8. In my view, the constitution doesn’t constrain immigration decisions, and they don’t have to be fair. They can be based on (for example) what the alien’s country did, rather than anything the alien did.

    But Congress is free to impose constraints. And that includes imoosing norms of fairness, cabinining the Executive discretion, etc.

    Exectutive discretion in dealing with aliens and immigration is a grant from Congress, not an inherent executve power. Congress can take it away.

    So while nothing in the Constitution requires our government to turn square corners in foreign policy – we can stab entire countries in the back. and the same with their individual citizens – Congress has every right to decide that they should. And there is no presumption of executive discretion. If Congress grants aliens a right, they have it and courts must enforce it.

    1. …ok. And your flights of interpretive fancy are relevant how?

      1. Well, one simple reason is that the Supreme Court boarded and took off with it. See e.g. Trump v. Hawaii (decision whether to grant visas not subject to Establishment Clause constraints).

    2. “imoosing norms of fairness”

      Does that mean they might permit some caribou to immigrate from Canada on occasion? (I assume you meant to say “imposing”!)

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