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JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

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Stuck on Repeat

The first three lessons learned from the BIA’s recent decision in Matter of Laparra1 are: (1) the Board knows only one tune; (2) that tune is the “Falls Church Two-Step,” and (3) the tune does not improve with repeated listening.

As background, Congress in 1996 passed a statute creating a document called a Notice to Appear, or “NTA” for short, which is used to commence removal proceedings before the Immigration Court.  Congress defined an NTA to require that it include the time and place of the first hearing; the document is, after all, called a “notice to appear.”

However, for many years, the Department of Homeland Security cut a corner by leaving that crucial information out of hundreds of thousands of NTAs.  The courts (which are not part of DHS, the entity issuing the NTA) would later send a different document telling the person when and where to appear.  That second document might be sent weeks, months, or even years later.

As an aside, in other areas of immigration law, EOIR has applied a literal approach to interpreting statutory terms.  An unfortunate example is found in the asylum context, where the BIA felt a strong need to add “particularity” and “social distinction” requirements for particular social group recognition, creating significant obstacles for asylum seekers.  Yet the government’s defense of those terms has been based on the argument that every word in the term “particular social group” must be accorded a very literal meaning.

However, when it comes to the term “Notice to Appear,” the Board inexplicably doesn’t seem to think meaning should matter.  According to the online version of the Cambridge English Dictionary, “notice” is defined as “(a board, piece of paper, etc. containing) information or instructions.”  A “Notice to Appear” would therefore be a piece of paper containing information or instructions about when and where to appear.  However, that is exactly the information or instructions that DHS saw fit to leave out of this particular document.  The BIA nevertheless long stood firm in its conviction that a document which provides as much  information or instruction about an upcoming hearing as a take-out menu from L&B Spumoni Gardens meets the legal definition of a “Notice to Appear.”

Not surprisingly, this government shortcut was successfully challenged by noncitizens wishing to seek a path to legal status in this country called cancellation of removal.  One can’t apply for cancellation of removal unless they’ve been present in the U.S. for ten years,2 but  once one is served with a Notice to Appear, the accrual of time towards that ten years stops.3  So whether or not what ICE was handing out met the definition of an NTA would determine whether hundreds of thousands of people would be eligible to apply for legal status.  In a case called Pereira v. Sessions,4 the Supreme Court resoundingly held that an NTA without the time and place of hearing was not an NTA, and therefore did not stop the noncitizen from accruing time to reach the 10 years of presence necessary to apply for cancellation of removal.

The BIA’s response was to issue a precedent decision, Matter of Mendoza-Hernandez,5 in which it held that in spite of the Supreme Court’s clear view to the contrary, the combination of the non-NTA and a later-sent document that is also not an NTA containing the missing information together form a valid NTA, which stops the noncitizen from continuing to accrue time towards the ten years.

The matter again reached the Supreme Court, where, at oral argument, Justice Gorsuch referred to the case as “Pereira groundhog day,” and actually asked counsel for the government why it was pursuing the case in light of the Court’s 8-1 decision in Pereira.6  In its 2021 decision in that case, Niz-Chavez v. Garland,7 the Court held that an NTA must be a single document containing all of the required information, and that the two-step method endorsed by the Board does not constitute one valid NTA, and thus will not stop the accrual of time.

Although Pereira and Niz-Chavez involved what is known as the “stop-time rule” described above, the question of proper service of an NTA also arises in other contexts.  For those who missed their initial removal hearing and were ordered removed as a result, the Supreme Court decisions seemed to offer a new opportunity.

The reason is because the statute provides for in absentia removal orders only where the noncitizen failed to appear for their hearing “after written notice required under paragraph (1) or (2) of section 1229(a) of this title has been provided” to the noncitizen or their lawyer.8  Section 1229(a) is the section of the law that lists the requirements for an NTA to actually be an NTA; it was the specific section interpreted by the Supreme Court in Pereira and Niz-Chavez.  Pursuant to those decisions, no one who was issued an NTA lacking a time and place of hearing received proper notice under section 1229(a) of the Act, which specifically requires that the time and place information be provided in a single document.  Where notice was not proper, the law allows the filing of a motion to rescind an in absentia order, and further permits the motion to be filed at any time.9

The U.S. Court of Appeals for the Fifth Circuit addressed this issue of proper notice in a published decision issued in September, Rodriguez v. Garland.10  The decision cited the Supreme Court’s holding in Niz-Chavez, and determined that a single document containing all of the required information (including the time and place) is required in the in absentia context as well.  The Fifth Circuit made clear that where the NTA did not contain the time and place, it could not be cured by the mailing of a subsequent notice for in absentia purposes.

Anyone unable to guess the BIA’s response has not been paying attention.  The BIA issued Matter of Laparra in order to say that the recipient of an in absentia removal order did in fact receive proper notice pursuant to section 1229(a) even if their NTA lacked a time and place of hearing, as long as the court subsequently sent an entirely different paper days, months, or years later containing the missing information.

How did the BIA believe it could reach this same conclusion yet again in spite of the Supreme Court decisions to the contrary?  Please try to follow along as we review the Board’s explanation.

First, the Board emphasized that the statute governing in absentia orders (8 U.S.C. § 1229a(c)(5)(A)) states that such order may be entered “after written notice required under paragraph (1) or (2) of section 239(a) has been provided.”  The Board emphasized the words “written notice,” which it distinguished from “a written notice,” which the Supreme Court interpreted to indicate a single document.11  The Board’s position seems to be seriously undermined by the fact that “written notice under paragraphs (1) or (2) of section 239(a)” is subsequently referred to twice more in the same section of the law as “the written notice.”

The Board employed a novel approach here.  It dropped a footnote in which it admitted to the two subsequent mentions of “the written notice.”  But the Board then said that it reads those two subsequent uses of “the” as simply referring back to the initial “written notice” (without the definite article).12  And apparently, because they are referring to the first mention of “written notice,” the definite article “the” can just be ignored in those other two usages.  Why is that?  To explain, the Board cited a Supreme Court decision in a non-immigration case decided in 2015, Yates v. U.S.13

Yates involved a fisherman apprehended at sea with a catch containing a large number of undersized fish.  However, by the time the ship reached shore, only fish of legal size remained on board.  After a long delay, Yates was charged and convicted under 18 U.S.C. § 1519, prohibiting tampering with a “tangible object” in order to impede a federal investigation.

Fish would meet the dictionary definition of “tangible objects.”  However, in a decision authored by the late Justice Ruth Bader Ginsburg, the Supreme Court employed a canon of statutory interpretation called noscitur a sociis, under which aid in determining a term’s meaning can derive from the meaning of surrounding terms used in the same section of law.14  As the term “tangible object” in 18 U.S.C. § 1519 is preceded by “makes a false entry in any record, document…,” the Court determined that “tangible object” was meant to refer to items containing records or documents.  So tampering with an external hard drive would be covered by the statute; tampering with a fish would not.

This approach has been employed by the BIA (using the closely-related concept of ejusdem generis) in its 1985 decision in Matter of Acosta15  to determine that the term “particular social group” should be defined by an immutable characteristic, the same common denominator found in the surrounding terms of race, religion, nationality, and political opinion.  It bears noting that what the Board did in Laparra bears no similarity to the manner in which the canon was applied in either the Board’s earlier usage in Acosta or by the Supreme Court in Yates.  In Laparra, there was no comparison to the meaning of surrounding terms; instead, the Board seemed to make a random decision to ignore two usages of the definite article.  The only similarity I can see to Yates is that what the Board did seems fishy.

However, even if we do as the Board would like and look only at the first usage of “written notice” contained in section 1229(a)(1), there is still a fatal flaw in the remainder of the Board’s argument.  As noted above, the statute in that first usage requires not just any written notice, but specifically, written notice under paragraph (1) or (2) of section 1229(a), i.e., the section titled “Notice to appear.”  Paragraph (1) of that section begins: “In removal proceedings under section 1229a of this title, written notice (in this section referred to as a “notice to appear”)…”  A notice to appear!  Paragraph (1) thus clearly refers to a single document, which as the Supreme Court has now told us twice, must contain the time and place of hearing.

Paragraph (2) of that same section says that “in the case of any change or postponement in the time and place of such proceedings,” then a written notice shall be provided specifying the new time and place of the proceeding, and the consequences of a failure to appear.

The meaning of paragraph (2) was by no means a matter of first impression for the Board to interpret in Laparra as it saw fit.  In its decision in Pereira, the Supreme Court said:

If anything, paragraph (2) of § 1229(a) actually bolsters the Court’s interpretation of the statute. Paragraph (2) provides that, “in the case of any change or postponement in the time and place of [removal] proceedings,” the Government shall give the noncitizen “written notice . . . specifying . . . the new time or place of the proceedings.” § 1229(a)(2)(A)(i). By allowing for a “change or postponement” of the proceedings to a “new time or place,” paragraph (2) presumes that the Government has already served a “notice to appear under section 1229(a)” that specified a time and place as required by § 1229(a)(1)(G)(i). Otherwise, there would be no time or place to “change or postpon[e].”16

We know that the BIA is well aware of this; the above language from Pereira was specifically quoted in the six-judge dissenting opinion in Matter of Mendoza-Hernandez, under the heading “Plain Language.”17

Also, in its later decision in Niz-Chavez, the Court stated that “the government could have responded to Pereira by issuing notices to appear with all the information §1229(a)(1) requires—and then amending the time or place information if circumstances required it.  After all, in the very next statutory subsection, §1229(a)(2), Congress expressly contemplated that possibility.”18

Thus, the Supreme Court left no doubt in its two decisions that paragraph (2) involves a change in the time and place of hearing that was previously included in the NTA, as the statute requires.  Paragraph (2) in no way, shape, or form allows ICE to serve the noncitizen with the L&B Spumoni Gardens menu and then have the immigration court send a second paper that provides a time and place for the first time.

Somehow, the Board chose to ignore this clear and obvious reading twice affirmed by the highest court in the land.  Instead, it focused on only one word – the “or” in “paragraph (1) or (2) of section 1229(a).”19  The Board then pretended (can we find a more appropriate word than this?) not only that the “or” somehow allowed paragraph (2) to be read as if paragraph (1) didn’t exist, but also as if the words “any change or postponement in the time and place of such proceedings” could somehow be read as “change or postponement?  What a poor choice of words!  What we really meant to say was, ‘the absolutely very first time and place ever set.’  Wasn’t that obvious?  We feel so foolish.  Please just interpret this any way you see fit.”

The Board did acknowledge the Fifth Circuit’s contrary view in Rodriguez, but attributed it to that court’s failure to focus on the “paragraph (1) or (2)” language.20  Apparently, in the Board’s view, had the Fifth Circuit also focused on that word “or,” it would have reached the same twisted conclusion as the Board.  Perhaps realizing how unrealistic this might seem, the Board quickly pointed out that “[i]n any event, Rodriguez does not apply here because this case arises in the First Circuit.”21

Speaking of other circuits, it bears noting that the U.S. Court of Appeals for the Third Circuit recently stated for the second time in a published decision that the BIA’s analysis was “more akin to the argument of an advocate than the impartial analysis of a quasi-judicial agency.”21  I believe that the same can be said of the Board’s decision in Laparra.  It will be interesting to see if this issue reaches the Supreme Court for a third time.  If so, one should wonder why the Board might expect a different result.

Notes:

1.  28 I&N Dec. 425 (BIA Jan. 18, 2022).
2. 8 U.S.C. § 1229b(b)(1)(A).
3. 8 U.S.C. § 1229b(d)(1), often referred to as the “stop-time rule.”
4. 138 S. Ct. 2105 (2018).
5. 27 I&N Dec. 520 (BIA 2019) (en banc).
6. Transcript of Supreme Court Oral Argument in Niz-Chavez, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-863_k5gm.pdf, at pp. 25-26, 63-64.
7. 141 S. Ct. 1474 (2021).
8. 8 U.S.C. § 1229a(b)(5)(A).
9. 8 U.S.C. § 1229a(b)(5)(C)(ii).
10. 15 F.4th 351 (5th Cir. 2021).
11. Matter of Laparra, supra at 431.
12. Id. at 431-32, n.6.
13. 574 U.S. 528 (2015).
14. Id. at 543.
15. 19 I&N Dec. 211, 233-34 (BIA 1985).
16. Pereira v. Sessions, supra at 2114.
17. Matter of Mendoza-Hernandez, supra at 538.
18. To be clear, the government is capable of providing all required information in a single NTA.  EOIR had provided DHS access to schedule Master Calendar hearings through the agency’s Interactive Scheduling System (ISS), which was employed between those agencies until May 2014.  And in a memo issued shortly after the Supreme Court’s Pereira decision, then EOIR Director James McHenry stated that EOIR had begun providing hearing dates to DHS in detailed cases, and was working to again provide it access to ISS for scheduling non-detained cases.
19. Matter of Laparra, supra at 430.
20. Id. at 436: “The court reasoned that section 240(b)(5)(C)(ii) requires ‘notice’ under ‘section 239(a),’ which Niz-Chavez held must be a single document in the form of a notice to appear. However, the court based this reasoning on a recitation of section 240(b)(5)(C)(ii) that omitted the disjunctive phrase ‘paragraph (1) or (2)’ from the statute and relied solely on a reference to ‘section 239(a).’”
21. Id.
22. Nsimba v. Att’y Gen. of U.S., No. 20-3565, ___ F.4th ___ (3d Cir. Dec. 22, 2021) (slip. op. at 10).

Copyright 2022 Jeffrey S. Chase.  All rights reserved.

Republished by permission.

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As Jeffrey points out, the legal and practical problems with notice at EOIR and DHS are chronic, well-documented, and consequential! Yet, given a golden opportunity to make a new start while complying with due process and establishing “best practices” Garland has miserably failed!

Instead of appointing a BIA consisting of “practical scholar expert judges” and competent, professional judicial administrators to clean up this awful mess it’s “same old, same old” under Garland’s poor leadership. Indeed, not only has Garland chosen to retain the very folks who created and aggravated the notice problems, he has actually made it worse! How many times do I have to say it: EOIR is supposed to be a “court of law,” not a highly bureaucratic, “headquarters bloated,”  “agency” modeled on and “operating” (a term I use lightly with EOIR) like the very worst aspects of the “Legacy INS.” For Pete’s sake, even DHS has done a somewhat better job of automating files than EOIR!

As recently exposed by Tal Kopan in the SF Chronicle, under Garland’s new wave of  “Aimless Docket Reshuffling,” and “mindless deterrence gimmicks” EOIR has unconscionably created entire dockets made up of probable “defective notice cases” to “gin up” illegal, bogus “in absentia” removal orders! https://immigrationcourtside.com/2022/01/20/tal-kopan-sf-chron-no-due-process-here%e2%98%b9%ef%b8%8f-garlands-despicable-star-chambers-cheered-engineered-in-absentia-deportation-orders/

At best, these bogus orders require burdensome motions to reopen, rescheduling, and “restarts” that unnecessarily build backlog. They also generate more bogus statistics and false narratives, more endemic problems at EOIR that Garland has ignored or aggravated.

At worst, improper in absentia orders generate improper arrests, detention, and illegal removals of individuals who were clueless about their actual hearing dates!

Having “supervisors and managers” supposedly in charge of operating a fair hearing system engineer and then “cheer” the absence of any hearings at all shows the depths to which EOIR has plunged under Garland’s poor leadership. But, perhaps that shouldn’t surprise us! It comes from an AG who has failed after nearly a year to re-establish a fair hearing system for asylum applicants at the border and who mounts ethically-challenged defenses of Stephen Miller’s complete eradication of asylum at the border based on a bogus, pretextual rationale rejected by almost all migration and public health experts! Why is this acceptable performance from an alleged Democratic Administration?

No wonder Garland is building the already incredible 1.6 million case EOIR backlog at a ”new record” pace! 

The speculation on Biden’s Supreme Court pick is “sucking all the air out of the room.” But, Garland’s disgraceful failure to counter the Trump AGs’ “packing” of the BIA with unsuitable judges and filling EOIR “senior management” with unqualified individuals who lack the requisite expertise and consistently tilt in favor of DHS Enforcement and against Due Process, fundamental fairness, immigrants’ rights, and best practices will have more immediate corrosive effects on racial justice in America and individual human lives than any court in America outside the Supremes! 

And, unlike the Supremes, Garland “owns” all the picks for the “Supreme Court of Immigration!” Rather than standing up for progressive reforms, and giving  new progressive judicial talent a chance to shine, he has chosen to enable and empower regressive forces and to frustrate progressive experts, further undermine the rule of law, and thwart best practices!

I’m not the only observer to recognize Garland’s failure of leadership, accountability, and progressive values at DOJ. See, e.g., Biden must fix riven guardrails of democracy, https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=3686d1bd-1c2f-402e-afe8-ad86040534f8&v=sdk

Indeed, just this week, Garland’s DOJ put on another stunning display of professional incompetence by botching the plea bargain in the Ahmaud Arbery case so badly that a Federal Judge took the highly unusual step of rejecting it! https://ktar.com/story/4865811/plea-deal-in-hate-crime-case-in-the-killing-of-ahmaud-arbery/

But, even these somewhat “understated” critics of Garland don’t fully grasp the catastrophic consequences for our entire justice system and our democracy of Garland’s unwillingness and/or inability to prioritize the creation of a progressive due-process/equal-justice-oriented judiciary of experts to replace his regressive, oppressive, deadly, and beyond dysfunctional immigration judiciary at DOJ!

As Jeffrey cogently relates, “same old, same old” failed approaches by “holdover judges” doesn’t “cut it!” Sessions and Barr recognized the cosmic importance of the immigration judiciary and the imperative to “weaponize it for evil” and to use their limited time in office to maximize and  further a White Nationalist agenda developed and promoted by Stephen Miller. It’s a pity that Garland has failed to act on the legal and moral imperatives to “mine and realize EOIR’s ‘counter-potential’ for good!”  

That potential was memorialized in the long-forgotten “EOIR vision of yore:” “Through teamwork and innovation, be the world’s best administrative tribunals guaranteeing fairness and due process for all!” Remarkably, that “noble due process vision” was once displayed in bold letters on EOIR’s internal website. Now, folks like Garland are too embarrassed and spineless to even admit that such a goal ever existed.

For my equally critical if less scholarly analysis of the Laparra travesty, see https://immigrationcourtside.com/2022/01/19/garlands-bia-sidesteps-supremes-again-statutorily-defective-notice-is-good-enough-for-in-absentia-deportation-matter-of-laparra/.

Funny how right-leaning supposed “textualists” and “strict constructionists” have difficulty following clear statutory commands when the result might favor the individual while holding the Government accountable for intentionally violating the law. Also, strange how an Administration that got into office in no small measure by promoting its competence and strong commitment to humane values and equal justice for all, particularly racial justice, continues to fail on all counts! Go figure! 

🇺🇸Due Process Forever!

PWS

02-01-22