Thursday, April 29, 2021

Niz-Chavez: Gorsuch Authors SCOTUS' Response to Pereira "Groundhog Day" Case

U.S. Supreme Court no. 6393, photo by Eric E. Johnson

Today, SCOTUS issued an opinion in Niz-Chavez v. Garland.

Short take: A noncitizen will continue to accumulate time towards their continuous presence in the United States, for purposes of cancellation of removal, until they receive a single document containing all the information about their hearing required by 8 U.S.C. § 1229(a)(1)-- including not only the grounds for their removal but also the time and place of their removal hearing. The government cannot trigger the stop-time rule by sending multiple documents, each containing a portion of the statutorily required information.

Back in November, I wrote about oral argument in this case. I noted that Gorsuch was on fire during questioning: 

In questioning petitioner, [Gorsuch] 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!

So it is perhaps no surprise that Justice Gorsuch is the author of the court's Niz-Chavez decision today. His opinion was joined by Justices Thomas, Breyer, Sotomayor, Kagan, and Barrett. Justice Kavanaugh dissented with Chief Justice Roberts and Justice Alito joining that dissent.

It's not a long opinion. Just 16 pages with those huge SCOTUS margins.

Let's languish for a moment in the opening paragraph:

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 this 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.

The meat of the opinion walks a steady path through statutory interpretation, concluding, as I said above, that a noncitizen in removal proceedings is entitled to a SINGLE notice to appear that contains all the information required by statute.

The conclusion is just as powerful as the opening paragraph:

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 en- sure 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.


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