By Suzanne Monyak
Law360 (June 8, 2020, 9:51 PM EDT) — The U.S. Supreme Court’s decision to take a second look at the requirements for deportation notices could pave the way for thousands of immigrants seeking to remain in the U.S., while also testing the limits of possible relief for older immigration cases.
The high court said Monday it would decide if an immigrant’s accrued time in the U.S. can be cut short by a multipart court notice, called a notice to appear, or if the government must include all required information on a single document to stop the residency clock.
Time spent in the U.S. is key to immigrants’ eligibility for certain deportation relief reserved for longtime residents with American relatives, known as cancellation of removal.
If the high court rules in favor of the immigrant in this case — Agusto Niz-Chavez, a Guatemalan citizen with three American children — the U.S. Department of Homeland Security may need to redo how it initiates removal proceedings against immigrants if it wants to prevent them from becoming newly eligible for deportation relief while immigration court proceedings drag on.
It could also open a door for immigrants with pending cases, or even those with old deportation orders that were launched with multistep notices to try to revive their cases and belatedly request relief.
“The ramifications are huge because cancellation of removal is one of the common defenses against deportation in immigration court,” said Aaron Hall, a Colorado-based immigration lawyer. “It’s going to be a huge impact on tens of thousands, I would guess. Maybe hundreds of thousands.”
This latest case comes two years after the Supreme Court last ruled on the legal requirements for notices to appear, holding 8-1 in Pereira v. Sessions that the Immigration and Nationality Act requires notices to appear to include the time and place of the individual’s immigration court hearing to trigger the stop-time rule, which stops the clock on accrued residency.
Many immigration lawyers expected to see a change in the federal government’s practices following that ruling, after years of DHS sending out deportation notices with blank or dummy date dates and allowing the immigration court to follow up with a hearing notice later on, a practice that can increase the risk of key information being sent to the wrong address or lost in the mail.
But instead, the government clamped down on its interpretation and even expanded it, attorneys said.
“When Pereira came out, you already had what was basically 22 years of practice of not including the date and time of hearing. And instead of fixing the problem when they had the opportunity to do so, they instead made the problem larger,” said Jeremy McKinney, second vice president of the American Immigration Lawyers Association.
Following the high court’s ruling, the Board of Immigration Appeals, the administrative appellate body for the immigration courts, held in an en banc decision last year that follow-up notices can remedy a deficient notice to appear, and that the clock can be stopped once the immigrant has been sent all of the required information, even if it is sent through multiple documents.
Some immigration lawyers saw that ruling as an administrative appellate board openly defying the Supreme Court’s mandate.
“It’s shocking the way that the agency has thumbed their nose at the United States Supreme Court,” McKinney said.
The BIA has since issued two more precedential rulings addressing other various possible deficiencies among notices to appear, clarifying that immigration courts retain jurisdiction over cases even if the initial notices didn’t include the address of the immigration court, and that notices are not “fatally deficient” if DHS doesn’t check the foreign citizen’s classification box.
The BIA’s interpretation of the legal requirements for court notices has also sparked an entrenched split among the circuit courts, with the Fifth and Sixth circuits opting to defer to the agency, while the Third, Seventh, Ninth, Tenth and Eleventh circuits disagreeing, according to court filings.
If the Supreme Court ultimately takes a stance opposite the board, it would be a “serious rebuke,” said Hall.
“The language in the statute is clear, the language in the Pereira decision is clear, and the BIA searched out and found a reason to defy the clear language in Pereira,” he said. “They tried to run an end-around the Pereira decision, and now it’s going back up to the justices to see if they’re going to allow the BIA to do that.”
Manny Vargas, founder and senior counsel of the Immigrant Defense Project, said he was hopeful that the agency’s response to the Pereira decision might prompt the high court to again come down in favor of the immigrant challenger.
“I think immigrants and their advocates hope that the Supreme Court will be disturbed here that the agency chose not to follow their original decision in Pereira, and to take it for what it said,” he told Law360.
But if the high court does rule against the government, and DHS aligns its notice procedures for future cases accordingly, the immigration courts could then find themselves facing a wave of requests to revive older cases in an already backlogged system, attorneys said.
If the Supreme Court sides with Niz-Chavez, some immigrants whose ongoing court proceedings were improperly initiated with multiple documents before they met the residency requirement for cancellation of removal — 10 years for those without legal status, and seven years for U.S. permanent residents — may become eligible if enough time has passed.
Those with final orders of removal already issued, but who are still in the U.S., may also be allowed to request to reopen their cases, claiming that they never got a complete charging document and may now be eligible for deportation relief.
These types of cases could force courts to confront more complex questions concerning whether a change in law could merit a revival of older deportation orders.
“How the different courts are going to approach, ‘Can you come to us years after you were ordered deported?’ — I’m not sure how the BIA or the circuits are going to rule on that,” said Jeffrey Chase, a New York immigration lawyer and former immigration judge. “I think the litigation is going to go on for a while on this.”
McKinney also said that a high court ruling in favor of Niz-Chavez could open a door for individuals in pending proceedings to ask to terminate them entirely on the basis that a deficient notice robs the court of jurisdiction.
Those requests were generally unsuccessful following the Pereira ruling, though McKinney said there could be an opening for such a challenge depending on how expansive the Supreme Court’s eventual ruling is in this case.
And while the high court is confined to the limited question before it on court notices, attorneys said that more immigration court challenges contesting other potentially deficient aspects of notices to appear, from jurisdictional challenges to challenges to DHS’ practice of inserting fake court dates as placeholders in notices, could follow in the wake of the eventual ruling.
“It’s not a cure-all,” said Chase. “It’s going to be, ‘Okay now, we have several other questions we have to answer.'”
–Editing by Brian Baresch and Emily Kokoll.
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