On April 29, 2021, the Supreme Court of the United States, decided in Niz-Chavez v Garland, Case No. 19-863, 593 U.S. ___ (2021).
Basically, in Niz-Chavez, the Supreme Court reiterated its original rule in Pereira v. Sessions, 585 U. S. ___ (2018) had held that a Notice to Appear must include the date and time of the immigration court hearing. If it did not, then the Notice to Appear was defective, and the recipient of that Notice to Appear would continue to accrue time toward the 10-year cancellation of removal for nonpermanent residents as set forth in the statute. The BIA, not wanting to be outdone by the Supreme Court, in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018) held that the Supreme Court’s ruling in Pereira be damned, the immigration court’s method of a two-step approach to giving aliens their hearing dates would still apply – namely, the government agency could first serve the Notice to Appear on the alien without including the date and time of the hearing, and then, the immigration court assigned to the case would send the alien another notice providing the date and time for the hearing. This two-step process would, then-Attorney General Jeff Sessions concluded, meet the necessary notice requirement under the statute. This, despite the Supreme Court’s clear decision in Pereira v. Sessions. Perhaps Jeff Sessions was smarting from that slap on the wrist from the Supreme Court, but whatever his motivation, he decided that he could unilaterally overrule the Supreme Court of the United States.
“Not so fast, not so fast!” said the Supreme Court. The Supreme Court took up a case that arose in the Sixth Circuit, which had followed Bermudez-Cota. The Supreme Court made short work of the Sixth Circuit. Without even mentioning Bermudez-Cota once in its opinion, the Supreme Court, in a 6-3 decision, held that its earlier decision stood, and that it was essentially foolish to argue that “a” Notice to Appear which required certain facts to be stated in the notice, including the date and time of the hearing, could be divided into more than one document. The clear reading of the statute, and a clear analysis of language indicated that “a” meant one single document, not a multiplicity of documents. The Supreme Court goes on to tease the government’s tortured reasoning interpreting this simple linguistic rule to mean more than one document. Authoring the opinion for the majority was Justice Gorsuch, joined by Justices Thomas, Breyer, Sotomayor, Kagan, and Barrett. Chief Justice Roberts and Justice Alito joined in the dissent, which was written by Justice Kavanaugh.
Therefore, for purposes of cancellation of removal for nonpermanent residents, time continues to accrue if their Notice to Appear is issued without a date and time for the court hearing. I expect a further case will probably arise because the USCIS has been inserting fictitious dates and times on hearing notices only to have immigrants show up at court without any hearing notice on the court calendar. This issue of fictitious dates simply to make the notice to appear facially valid may be another issue for the court to take up in the future. We shall see.
I hope this will be the last word on this matter. I expect it should be, as the Supreme Court has clearly spoken not once, but twice regarding this issue. Shame on the government if it continues its nonsensical opposition to the words of the highest court in the land.
I end with a notable quote from the decision as follows:
“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.”
© Farhad Sethna, Attorney, 2021
Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.