Tuesday, November 10, 2020

Niz-Chavez v. Barr: "Pereira Groundhog Day"

Pereira vs. Sessions, decided in 2018, is an absolutely fascinating case. At first glance, it seems simple. Eight (8!) justices held that when a noncitizen receives a document called a notice to appear, and where that document does not have a time or place listed for the removal proceedings, then it is not a valid notice to appear, and thus it does not “stop time” for purposes of establishing the noncitizen’s continuous physical presence in the United States. The Court's opinion, authored by Justice Sotomayor, held that “[a] notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under section 1229(a).’

Sounds straightforward, right?  Well, there's a hitch.

As counsel for DHS noted at the time, “[A]lmost 100 percent” of cases filed in the last three years were initiated by notice-to-appear documents that omitted the time and place of the proceeding. What did that mean? (For my part, I argued in a review article that immigration courts lacked subject matter jurisdiction over cases begun without a proper NTA.)

More important today, what did Pereira mean for cases going forward? How could the government properly issue NTAs in the future?

It turns out that the government decided to start issuing two documents: A DHS entity (typically USBP) would issue an NTA without a time or date . Later, the EOIR would send a Notice of Hearing with the time and date information. The BIA found this two-step process entirely hunky dory in its post-Pereira decision Bermudez-Cota.

Yesterday, the Supreme Court heard oral argument in Niz-Chavez v. Barr to decide if this two-step process complied with Pereira. You can experience oral argument for yourself by either listening to it at this link or reading this transcript. I recommend listening to the oral argument. It's highly entertaining.

First off, I thought Justice Thomas was supposed to be the silent one? Yet he had questions for both petitioner and respondent.

Second, Justice Gorsuch is a pip. I had no idea. In questioning petitioner, he said: "It sure seems a little bit like Pereira groundhog day to me." Then, when questioning the respondent, he said: "I guess I'm curious why the government is pursing this at all given Pereira. I know it doesn't squarely address this, but I would have thought the government might have taken the hint from an eight-justice majority in Pereira that "notice of appeal" means what it -- what it seems to mean." If that's not enough of a burn for you, he went on to say: "The government -- the government, Mr. Yang, doesn't have to argue every -- every possible jot and tittle of -- of a statute. It--it can--it--it has discretion here. It's just interesting to me that it's chosen to exercise it the way it has." SNAP!

There was a lot of back-and-forth about the practicalities of the government being able to include in an NTA all of the information that the statute mandates the document should include.

I found the closing statement of Mr. Zimmer (petitioner's counsel) compelling:

And then, ultimately, much of [the government's] argument is ... focused on the fact that this is hard to do.... [M]aybe this is hard to do.... I can't dispute much of what he said. But the government doesn't get to avoid doing things just because they're hard to do.... the government has known... from day one ... 'that the time and place of the hearing must be on the notice to appear.' So maybe this was a hard problem. But it was a hard problem that the government knew form day one it was required by the statute to solve. And if -- if the government ultimately decided that it couldn't solve that problem, its response was not to make the unilateral decision to ignore what it conceded to be Congress's clear instructions. Its solution was to go back to Congress and ask it to change the statute back to what it had said before. The government ... should not be able to now ask this Court to effectively bail it out from its failure to do what it knew it [was] required [to do] by asking this Court to adopt exactly the opposite interpretation of the statute that the government itself gave it right after it was enacted."



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