(The case, that is, not the person!)
© Farhad Sethna, Attorney 2024
In Campos-Chaves v Garland, and Garland v Singh, Case Numbers 22-674 and 22-884, respectively, the Supreme Court of the United States issued an opinion on June 14, 2024. This case is the third iteration of the Supreme Court on the same topic – an evolution, if you will, further chapters of which are still to be written. [The third related case, Mendez-Colin, was bundled up with Singh, both having emanated in the 9th Circuit]
I’ve previously commented on the insufficiency of an NTA which lacked a date or time. The Supreme Court continued down this long road, perhaps issuing what might be a conclusive opinion on the series of cases which began with Pereira v Sessions, 138 S.Ct. 2105 (2018) and Niz-Chavez v Garland, 593 U.S. 155 (2021).
To summarize this convoluted process: the Immigration and Nationality Act (the “INA”) requires that the Department of Homeland Security issue a removable alien with a “Notice to Appear” (NTA). In that NTA, the government must state the date, time, and/or place of the hearing in immigration court.
It was previously government practice not to provide dates and times, and sometimes, not even the location of the court on an NTA, in order to suit governmental convenience, especially when aliens were apprehended at remote locations, such as the southern or northern borders.
Subsequent to the service of an NTA which lacked a date, time, or location, or all three, the court would then serve as a notice on the respondent, at the respondent’s last known address, as stated on the NTA. That second notice from the court would have the date, time, and place of the hearing.
In both Pereira and Niz-Chavez, the Supreme Court held that an NTA which lacked the date, time, and/or location of the hearing was a defective notice, since it did not comply with the law.
However, Pereira stated as such in a decision which was directed only to respondents who were seeking to file applications for non-LPR cancellation of removal, and whom for whom the “stop time rule” would have applied, but for Pereira having found that the NTAs issued to them were noncompliant.
Likewise, in Niz-Chavez, the Supreme Court upheld Pereira, and further went on to virtually implicate all cases in which an NTA lacked a date, time, or place. Niz-Chavez thus invalidated most non-compilant NTA’s.
Since 2021, it seemed that Pereira and Niz-Chavez were the ruling cases on noncompliant NTAs, and many thousands of respondents had their cases terminated because their NTAs were not compliant. But the Government prefers to dig in its’ heels, and this third time at the Supreme court, may have found some traction.
The Supreme Court defined the issue before it as follows:
“We granted certiorari in all three cases to decide whether an alien can seek rescission of an in absentia removal order indefinitely whenever the Government fails to provide a single-document NTA.”
Some background is in order:
In general, removal proceedings begin with the issuance of a Notice to Appear (NTA)
The Supreme Court referenced the statute, which reads, in pertinent part:
8 U.S. Code § 1229 – Initiation of removal proceedings:
(a) Notice to appear
(1) In general
In removal proceedings under section 1229a of this title, written notice (in this section referred to as a “notice to appear”) shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any) specifying the following:
(G)
(i) The time and place at which the proceedings will be held.
(ii) The consequences under section 1229a(b)(5) of this title of the failure, except under exceptional circumstances, to appear at such proceedings.
(2) Notice of change in time or place of proceedings
(A) In general
In removal proceedings under section 1229a of this title, in the case of any change or postponement in the time and place of such proceedings, subject to subparagraph (B) a written notice shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien’s counsel of record, if any) specifying—
(i) the new time or place of the proceedings, and
(ii) the consequences under section 1229a(b)(5) of this title of failing, except under exceptional circumstances, to attend such proceedings.
All this seems very clear – and both Pereira and thereafter Niz-Chavez made it clear that the DHS could NOT satisfy this requirement via a “two step” process – that is, issuance of a non-compliant NTA and thereafter, issuance of a hearing notice specifying the date and time that was missing from the original NTA.
However, that posture changed in the instant cases. Why?
In Campos-Chaves and Singh, the Respondents admitted that they had been served NTA’s which lacked a date and time – that it, they were defective NTA’s under Pereira and Niz-Chavez. They failed, however, to attend subsequent hearings which were scheduled by the Immigration Court via separate and subsequently mailed hearing notices. When they failed to appear at those subsequent hearings, the Immigration Court ordered them removed “in absentia” (that is, in their absence). The respondents thereupon filed Motions to Rescind the In-Absentia removal orders, on the basis that the underlying NTA was defective. The Supreme Court held – using the language in the “in-absentia” part of the statute, that the INA required that the Government (in this case, the Department of Homeland Security, which issues the NTA) need only to satisfy either part of the law in order to claim effective service. The Supreme Court further held that an initially non-compliant NTA could be made subsequently compliant through the issuance of a subsequent hearing notice. Thus, the Supreme Court held that even a defective NTA would be acceptable if the government subsequently issued a date and time on a separate hearing notice, AND the Respondent was seeking to reopen an in-absentia removal order.
The respondents in the instant cases were seeking to reopen their cases and have their in-absentia orders of removal rescinded. Their argument, like the petitioners in both Pereira and Niz-Chavez was simple: – the NTA was defective, so all proceedings and orders that arose out of that defective NTA were ultra-vires. Unfortunately for them, the statute on reopening orders of in-absentia removal is different from 8 USC 1229(a), above. That statute is 8 USC 1229a, and in pertinent part, reads as follows, cross-referencing 8 USC 1229:
8 U.S.C. 1229a (b)(5):
Consequences of failure to appear
(A)In general
Any alien who, after written notice required under paragraph (1) or (2) of section 1229(a) of this title has been provided to the alien or the alien’s counsel of record, does not attend a proceeding under this section, shall be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable (as defined in subsection (e)(2)). The written notice by the Attorney General shall be considered sufficient for purposes of this subparagraph if provided at the most recent address provided under section 1229(a)(1)(F) of this title. (Emphasis added).
As you can see from the italicized text above, the immigration court may enter an in-absentia order of removal if the alien has EITHER (a) received notice of the time and place of the hearing (which respondents in the instant cases did not), OR (and this is the big “OR” – note it is not “AND” – it is “OR”) (b) the respondent was served a notice which provided the changed time and place of the proceedings.
To summarize, in the instant cases, the Supreme Court reasoned that an individual respondent who had received even a defective NTA could not subsequently argue that the NTA was defective if the respondent acknowledged receipt of the NTA, but subsequently failed to appear for a hearing which was set by a subsequent notice, as long as the notice was delivered to the last known address that the respondent had provided.
Has the landscape therefore changed for ALL cases with a defective NTA?
Short answer: NO! The Supreme Court stated very specifically that:
“We-granted certiorari in all three cases to decide whether an alien can seek rescission of an in absentia removal order indefinitely whenever the government fails to provide a single- document NTA.”
In the cases before the Supreme Court, the respondents had all received noncompliant NTAs. Subsequently, the court attempted to remedy these defective NTAs by issuing notices of the hearing date, time, and location to the respondents.
However, the respondents, having appeared at their initial hearing before the court, or having acknowledged receipt of the initial defective NTA, subsequently claimed that they had not received any future hearing notices.
Hence, the respondents failed to appear for their future scheduled hearing, and accordingly, were ordered removed from the United States by an immigration judge due to their failure to appear in court.
It is important to note that in Campos-Chaves, and Singh, the Supreme Court ruled only on cases where an alien was seeking rescission (i.e., repeal or reversal) of the in absentia order against them. It is not expanded to any of the other grounds for seeking termination of a case due to a defective NTA. It most certainly does not apply to defective NTAs in the context of filing applications for cancellation of removal as under Niz-Chavez or Pereira. Both Campos-Chaves as well as Singh make no mention of any reversal, distinguishing, or overruling either Niz-Chavez or Pereira either in part or in totality.
Therefore, both Niz-Chavez and Pereira continue to remain good law.
Campos-Chaves, and Singh, apply only in cases where the following factors are present:
- The respondent must have received the defective NTA or the subsequent notice or notices from the immigration court setting a date, time and location for the hearing.
- The immigration court must have sent a notice to the alien at the last known address for the alien.
- The alien must have made some indication that the alien had received either the NTA or one of the notices from the immigration court setting a date, time, and location for the alien’s hearing.
- The alien must have failed to attend the hearing at which he was ordered removed, despite having received notice of the hearing.
Conclusion:
The cases at bar reflect the Supreme Court’s determination to not allow a noncompliant NTA to derail all removal proceedings, just in specific cases where the facts are incontrovertible. The Supreme Court continues to offer an option to terminate cases involving applications for cancellation of removal, where the statutory language requires an NTA be compliant in order for the stop time rule to begin to accrue (Pereira). Likewise, the Supreme Court has upheld termination of removal cases where an NTA lacks the date, time, and/or place of the hearing in all cases where only an initial NTA has been served, subsequent hearing notices have been mailed by the court, the alien has made an appearance, and has sought termination due to a noncompliant NTA ( Niz-Chavez).
However, the Court had not yet ruled on the issue of whether an alien who had received an NTA, and subsequent notice of the date, time, and/or place of the hearing, but nevertheless failed to appear for his hearing could still claim a noncompliant NTA as a basis to terminate proceedings.
Thus, as discussed above, in Campos Chaves, and Singh, the cases at bar, the Supreme Court spoke on only this one limited issue:
Whether an alien who has not received a single document NTA can seek rescission of in absentia order of removal indefinitely, at whichever time the alien so desires.
These cases are therefore far removed from the ambit of both Niz-Chavez and Pereira. These cases relate only to aliens who are seeking to reverse the in absentia orders of removal against them which are predicated upon a noncompliant NTA.
Thus, Niz-Chavez is far from dead. Pereira is nowhere close to dead. The cases which fall outside these very definite guideposts that the Supreme Court spelled out in Campos-Chaves and Singh, above, remain viable for termination.
Consequently, Niz-Chavez and Pereira remain good law at this time, unless a future case comes along and the Supreme Court specifically overrules Pereira and Niz-Chavez. It’s hard to imagine that scenario, because both Pereira and Niz-Chavez rely hinge on the strict textual reading of the INA, to which this particular Supreme Court professes.
© Farhad Sethna, Attorney, 2024
Farhad Sethna has practiced law for over 30 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 farhad@sethnalaw.com. We will try to answer as many questions as possible.