By: Ashley Oldfield (Wake Forest School of Law alumnus)
In Niz-Chavez v. Garland,[1] the Supreme Court of the United States addressed, for the second time, what constitutes a notice to appear under 8 U.S.C. § 1229(a)(1).[2] In doing so, the Court may have also resurrected challenges to an immigration court’s jurisdiction which first arose following the Court’s decision in Pereira v. Sessions.[3]
In Pereira, the Court answered a “simple, but important, question of statutory interpretation”: does a putative “notice to appear” that does not specify the time and place of a removal hearing trigger the stop-time rule with regard to cancellation of removal?[4] The Court’s answer? A resounding “no.”[5] In order to trigger the stop time rule under § 1229b(d)(1), a notice must include all of the statutorily required information specified in § 1229(a)(1), including the time and place of the removal proceedings. Absent that information, such a notice is not actually a “notice to appear” at all.[6]
This commonsense decision, however, created an uproar in the immigration world. Immigration advocates saw in Pereira an opportunity to challenge an immigration court’s jurisdiction.[7] They argued that since jurisdiction only vests with the immigration court when a valid charging document (e.g., a notice to appear) is filed, and a notice to appear lacking time-and-date information is not valid, then the filing of an invalid notice to appear fails to vest jurisdiction with the immigration court.[8] Relying on this argument, immigration advocates moved to terminate active removal proceedings, challenge in absentia removal orders, and dismiss illegal reentry charges.[9]
Unsurprisingly, the Board of Immigration Appeals (the “BIA”) rejected this argument. In Matter of Bermudez-Cota,[10] the BIA distinguished Pereira, reasoning that it did not apply where, as in the case at hand, the noncitizen was “properly served with both a notice to appear and a subsequent notice of hearing,” such that he was “sufficiently informed to attend his hearings.”[11] The BIA also insisted that Pereira’s holding was “narrow” and thus only applied when the stop-time rule was at issue.[12] Furthermore, the BIA found support in the regulation applicable to vesting jurisdiction, which did not mandate time-and-date information.[13] Finally, relying on pre-Pereira decisions from the Fifth, Seventh, Eighth, and Ninth Circuits, the BIA determined “that a two-step notice process is sufficient to meet the statutory notice requirements” and “vest[] an Immigration Judge with jurisdiction over the removal proceedings.”[14] Since Bermudez-Cota, the majority of circuits have also rejected Pereira-based jurisdictional challenges, albeit for varying reasons.[15] Furthermore, in Matter of Mendoza-Hernandez,[16] the BIA, again distinguishing Pereira, expressly held that service of a second document with time-and-place information satisfies notice requirements and triggers the stop-time rule.[17]
In Niz-Chavez, the Court, in an opinion written by Justice Neil Gorsuch, addressed the two-step notice process head-on. There, the government had sought to initiate removal proceedings against Mr. Niz-Chavez by serving him with a document entitled “Notice to Appear,” but which lacked the time and place for the hearing.[18] The government later sent Mr. Niz-Chavez a second document that included the previously missing information, and he appeared at his hearing and was found removable.[19] Following the Court’s decision in Pereira, Mr. Niz-Chavez asserted that the notices he received were insufficient to trigger the stop-time rule, and thus, having now accrued the required period of continuous presence, he should be eligible for cancellation of removal.[20] The government responded that the second document completed the notice to appear and consequently triggered the stop-time rule.[21]
The Court, in a 6:3 decision, rejected this argument, holding that a notice to appear sufficient to trigger the stop-time rule is a single document, which must include all of the information listed in § 1229(a)(1).[22] Much of the Court’s decision hinged on the statute’s use of the indefinite article “a” before the word “notice.”[23] While the government and the dissent argued that “a” could precede “a single thing that can be delivered in multiple installments,”[24] the Court concluded that Congress’s use of “a” here indicated a single notice delivered at a discrete time, similarly to how Congress used indefinite articles before other case-initiating pleadings, such as a civil complaint or an indictment, which are never delivered by installment.[25]
The Court then found support for the single notice requirement in several related statutory provisions: 8 U.S.C. § 1229(e)(1), which provides “special rules the government must follow when it seizes [a noncitizen] at a sensitive location”; 8 U.S.C. § 1229a(b)(7), which speaks to a noncitizen’s ineligibility for relief under certain circumstances; and 8 U.S.C. § 1229(a)(2), which applies when the government wishes to change the noncitizen’s hearing date.[26] Each of these provisions refers to a notice of some type, pairs an article with a singular noun, and seems to contemplate a discrete document.[27]
Turning next to the statute’s history for support, the Court noted that under a previous law, removal proceedings were initiated by “an order to show cause” and that the law expressly permitted the government to specify the time and place for the hearing “in the order to show cause or otherwise.”[28] Congress’s decision not to include “or otherwise” in § 1229(a)(1) indicated that it intended for the government to no longer have the leeway to provide time and place information in a later document, but must instead include it in the notice to appear.[29]
Finally, the Court addressed, with little sympathy, the policy arguments advanced by both the government and the dissent. The Court rejected the idea that the administrative inconvenience of including time and place information in a notice to appear justified allowing the government “to send a person who . . . may be unfamiliar with English and the habits of American bureaucracies [] a series of letters[] . . . over the course of weeks, months, maybe years, each containing a new morsel of vital information.”[30] As for the dissent’s speculations regarding disadvantages to noncitizens, the Court found these both off the mark and irrelevant.[31] In short, neither administrative inconvenience nor hypothetical disadvantages warranted disregarding the plain statutory command.[32]
Where does this decision leave noncitizens seeking to use Pereira to challenge an immigration court’s jurisdiction? Although the Court did not directly address jurisdiction issues in Niz-Chavez,[33] the decision upends the BIA’s rationale for rejecting Pereira-based jurisdiction arguments.
First, the BIA can no longer argue that Pereira does not apply where the noncitizen was “properly served with both a notice to appear and a subsequent notice of hearing,” because those are the precise facts found in Niz-Chavez.[34] Second, contrary to the BIA’s assertion that Pereira’s holding was “narrow,” the Court indicated that its holding has implications outside of the stop-time rule, explaining that a notice to appear “serves as the basis for commencing a grave legal proceeding”[35] and that references to a “notice to appear” in other statutory provisions refer to the same “specific document in which the government can (and must) ‘include’ the required certification.”[36] Third, the Court explained that “pleas of administrative inconvenience and self-serving regulations never ‘justify departing from the statute’s clear text.’”[37] Finally, Niz-Chavez completely forecloses the two-step notice process championed by the BIA, making crystal clear that a “notice to appear” is a single document containing all of the information listed in § 1229(a)(1).[38]
Thus, Niz-Chavez presents another opportunity to challenge an immigration court’s jurisdiction. After all, “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.”[39]
[1] 2021 U.S. LEXIS 2232 (2021).
[2] Id. at *7–8. This “seemingly simple rule has generated outsized controversy” because service of a notice to appear on a noncitizen triggers the stop-time rule, which stops the clock on a noncitizen’s period of continuous presence in the country. Id. at *7 (citing 8 U.S.C. § 1229b(d)(1)). An otherwise removable noncitizen must accrue ten years of continuous presence in the U.S. in order to qualify for cancellation of removal and remain in the country. Id. at *6–7 (citing 8 U.S.C. § 1229b(b)(1)). Thus, what qualifies as a notice to appear sufficient to trigger the stop-time rule may have life-altering implications for some noncitizens.
[3] 138 S. Ct. 2105 (2018).
[4] Id. at 2113. By 2018, “almost 100 percent” of notices to appear served in the previous three years omitted time-and-date information. Id. at 2111. The government, however, asserted that these initial notices were sufficient to trigger the stop-time rule.
[5] Id. at 2110.
[6] Id.
[7] See, e.g., Kit Johnson, Pereira v. Sessions: A Jurisdictional Surprise for Immigration Courts, 3 Colum. Hum. Trs. L. Rev. Online 1, 2 (2018).
[8] Id. at 2–3.
[9] See generally Dan Kesselbrenner et al., Nat’l Immigration Project of the Nat’l Lawyers Guild & the Immigrant Def. Project, Practice Advisory: Challenging the Validity of Notices to Appear Lacking Time-and-Place Information (2018). For a discussion of Pereira-based challenges to indictments for illegal reentry after deportation, see Ashley Oldfield, Note, Pereira v. Sessions: The Supreme Court’s Call for Common Sense, 55 Wake Forest L. Rev. 415 (2020).
[10] 27 I. & N. Dec. 441 (B.I.A. 2018).
[11] Id. at 443. In Pereira, the noncitizen did not receive the notice of hearing and was ordered deported in absentia. Pereira, 128 S. Ct. at 2112.
[12] 27 I. & N. Dec. at 443.
[13] Id. at 445.
[14] Id. at 447.
[15] See Goncalves Pontes v. Barr, 938 F.3d 1, 6 (1st Cir. 2019); Banegas Gomez v. Barr, 922 F.3d 101, 105 (2d Cir. 2019), cert. denied, 140 S. Ct. 954 (2020); Nkomo v. Attorney Gen. of the U.S., 930 F.3d 129, 133–34 (3d Cir. 2019), cert. denied, 140 S. Ct. 2740 (2020); United States v. Cortez, 930 F.3d 350, 362–65 (4th Cir. 2019); Pierre-Paul v. Barr, 930 F.3d 684, 690–91 (5th Cir. 2019), cert. denied, 2020 U.S. LEXIS 2490 (2020); Hernandez-Perez v. Whitaker, 911 F.3d 305, 311–15 (6th Cir. 2018); Ortiz-Santiago v. Barr, 924 F.3d 956, 962–64 (7th Cir. 2019), reh’g denied; Ali v. Barr, 924 F.3d 983, 986 (8th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158, 1159 (9th Cir. 2019), cert. denied, 140 S. Ct. 1106 (2020); Martinez-Perez v. Barr, 947 F.3d 1273, 1278–79 (10th Cir. 2020); Perez-Sanchez v. U.S. Attorney Gen., 935 F.3d 1148, 1154 (11th Cir. 2019).
[16] 27 I. & N. Dec. 520 (B.I.A. 2019).
[17] Id. at 535.
[18] Niz-Chavez v. Garland, 2021 U.S. LEXIS 2232, at *9 (2021) (No. 19-863).
[19] Id. at *29–30 (Kavanaugh, J., dissenting).
[20] Id. at *31.
[21] Id.
[22] Id. at *27 (majority opinion).
[23] Id. at *10–17.
[24] Id. at *40 (Kavanaugh, J., dissenting).
[25] Id. at *13–16 (majority opinion).
[26] Id. at *17–20.
[27] Id.
[28] Id. at *20.
[29] Id.
[30] Id. at *23–25.
[31] Id. at *25–27.
[32] Id. at *26.
[33] The Court’s failure to address jurisdiction does not indicate that it accepted the immigration court’s jurisdiction. See Oldfield, supra note 10, at 436–37.
[34] See Niz-Chavez, 2021 U.S. LEXIS 2232, at *29–30 (Kavanaugh, J., dissenting).
[35] Id. at *15 (majority opinion).
[36] Id. at *18.
[37] Id. at *23 (citing Pereira v. Sessions, 138 S. Ct. 2105, 2109 (2018)).
[38] See generally Niz-Chavez, 2021 U.S. LEXIS 2232.
[39] Id. at *27.
