SCOTUS makes it easier to deport immigrants in Alito opinion

The U.S. Supreme Court on Friday issued a major ruling against undocumented immigrants in a case concerning a long-running dispute about what constitutes proper notice to begin deportation proceedings.

The Supreme Court issued a ruling against undocumented immigrants in a case regarding proper notice for deportation proceedings.

Previously, courts had thrown out deportation cases where the initial notice (“NTA”) lacked a date and time for the hearing. This time, the court ruled that as long as immigrants eventually receive a valid notice with the date and time, deportation proceedings can begin.

The dissent argued this contradicts prior rulings and allows the government to get away with initially sending faulty notices. The majority claims the previous rulings were specific to a different deportation rule and that the law allows proceedings to begin with a later valid notice.

In a 5-4 majority opinion penned by Justice Sam Alito, the high court softened the provisions of Immigration and Nationality Act (INA) by ruling against three consolidated noncitizen petitioners who received deficient paperwork from the government — and generally making it easier for immigration officials to kick people out of the country.

In each instance, the three petitioners, led by Moris Esmelis Campos-Chaves in the case stylized as Campos-Chaves v. Garland, were sent an initial “notice to appear” or “NTA” that did not contain date or time information. And, as a result of that missing information, those notices did not fall in line with the statutory requirements of the INA. Later, each petitioner was sent a follow-up notice or notices that did contain the date and time information of their removal hearing. In time, each petitioner was ordered to be removed by an immigration judge. They later sought to reopen their cases and have those orders tossed.

Now, the Supreme Court has ruled that so long as the government eventually sends an immigrant notice containing the correct date and time information, the removal process can be initiated.

“Today’s decision does not mean that the Government is free of its obligation to provide an NTA. That document has an important place within the statutory scheme because it contains information that aliens may need to present their case, including the conduct for which they are charged and the provisions of law they allegedly violated,” the majority concludes. “Although an alien who receives only paragraph (2) notice must still attend the hearing or face in absentia removal, he can raise issues regarding incomplete notice at that time.”

If all this debate over “notice to appear” and “NTAs” sounds familiar, that’s because the nine justices have been down this very same road twice before — in the cases of Pereira v. Sessions and Niz-Chavez v. Garland. In the past, however, the decisions ended up drastically different — with majority opinions that vindicated immigrant rights.

In the earlier cases, the facts were strikingly similar.

In Pereira, the government was supplying immigrants with NTAs containing no date and time information whatsoever — using the phrase “TBD” instead. The Supreme Court rejected such NTAs as invalid in 2018 in an 8-1 opinion, but the practice of providing defective NTAs more or less continued; Immigration and Customs Enforcement agents began handwriting dates that were incorrect.

Later, in Niz-Chavez, the government tried out the process more akin to what occurred in Campos-Chaves: instead of sending one valid NTA, the government would send multiple pieces of mail that, when cobbled together, provided an immigrant all of the necessary date and time information for their hearing. Again, this practice was rejected — with Justice Neil Gorsuch penning the 6-3 majority opinion in 2021.

While the road looks strikingly similar, it’s the offramp that counts.

Under a separate section of the INA, an immigrant who has been in the country continuously for 10 years can effectively have their deportation proceedings canceled. The government, however, can stop this 10-year clock from ticking by sending a valid NTA. In both Pereira and Niz-Chavez, the petitioners were using their defective notices to toll the so-called “stop-time” rule. The government, in those earlier cases, wanted to activate the stop-time rule.

Alito’s majority opinion quickly mentions Pereira and, to a lesser degree, Niz-Chavez — to say those earlier cases dealt with a “narrow question” about the stop-time rule and that any prior reference to the statute at issue in the present case “was mere dicta.” The majority does note, as well, that the petitioners in the present case sought to analogize their own situations to those in Pereira and Niz-Chavez.

Those all-but identical sets of facts were good enough for the lengthy dissent penned by Justice Ketanji Brown Jackson. The minority opinion was joined by Justices Sonia Sotomayor and Elena Kagan. Gorsuch, again, sided with the immigrants as well.

“Specifically, the Government has issued NTAs that lack the exact time (and date) of a noncitizen’s removal hearing,” the dissent remarks. “This conspicuous omission has twice before garnered our attention in cases concerning a noncitizen’s plea for discretionary relief from removal — most recently, just three Terms ago. And twice over, this Court made clear that when the Government issues an NTA, that document must contain the time-and-place particulars that the statute requires. 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.”

Not so, the majority says, because the removal statute section that deals with NTAs allows for proceedings to commence when an immigrant receives “notice in accordance with paragraph (1) or (2).” In every case so far, and for every petitioner, there was no dispute the government failed in its obligation to provide paragraph (1) notice.

In Campos-Chaves, for the first time, the court got an opportunity to interpret paragraph (2) notice — an entirely different INA section.

The second paragraph provides, in the majority’s reading:

“[I]n the case of any change or postponement in the time and place of such proceedings,” the agency must provide “a written notice” specifying “the new time or place of the proceedings” and “the consequences” of failing to attend.

The petitioners and the dissent argued there was no “change” in the date and time on the originally defective NTAs if a date and time had never been set in the first place — and similarly that there could not be a “new” date or time without an old date and time.

“We reject both textual arguments,” Alito’s opinion reads. “The aliens take too narrow a reading of the term ‘change.’ In their telling, ‘change’ means ‘substitution,’ and substitution presupposes that there was a date before. But to ‘change’ can also mean ‘to replace with another or others of the same kind or class,’ ‘to switch to another,’ to ‘alter,’ or to ‘modify.’ … The aliens’ argument that a ‘new’ time or place requires an ‘old’ time or place fares no better. In fact, it runs against how that word is ordinarily used. No one thinks that congratulating a couple on having a ‘new’ baby implies that the couple is replacing an ‘old’ baby.”

The dissent complains about the incongruity of the Campos-Chavez opinion in light of the two prior, pro-immigrant, cases — suggesting their prior analysis was given too-short-shrift by the majority.

“In both of those cases, we interpreted the notice regime just as the noncitizens do here,” Jackson goes on. “Our statements in Pereira and Niz-Chavez demonstrate that the Court twice before thought obvious the reading of the statute the noncitizens here propose. Yet the majority now cries dicta.”

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