Amer S. Ahmed ESQ – immigrationcourtside.com

🛡⚔️⚖️ADVENTURES OF THE ROUND TABLE: Latest Amicus Brief To Supremes Weighs In On “Stop Time Rule” — Niz-Chávez v. Barr — Many Thanks to The Pro Bono Stars @ Gibson Dunn!

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

No. 19-863 IN THE

_______________

AGUSTO NIZ-CHAVEZ,

v.

WILLIAM P. BARR, ATTORNEY GENERAL,

Respondent.

_______________

On Writ Of Certiorari

To The United States Court of Appeals For the Sixth Circuit _______________

BRIEF OF THIRTY-THREE FORMER IMMIGRATION JUDGES AND MEMBERS OF THE BOARD OF IMMIGRATION APPEALS

AS AMICI CURIAE

IN SUPPORT OF PETITIONER _______________

RICHARD W. MARK

Counsel of Record

AMER S. AHMED

TIMOTHY SUN

DORAN J. SATANOVE

GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue

New York, NY 10166 (212) 351-4000 rmark@gibsondunn.com

Counsel for Amici Curiae

INTEREST OF AMICI CURIAE

1

1

Amici curiae are thirty-three former immigration judges and members of the Board of Immigration Ap- peals (“BIA” or “Board”).2

Amici curiae have dedicated their careers to the immigration court system and to upholding the immi gration laws of the United States. Each is intimately familiar with the functioning of immigration courts and is invested in improving the fairness and effi- ciency of the United States immigration scheme. Amici curiae’s extensive experience adjudicating im- migration cases provides a unique perspective on the procedures and practicalities of immigration proceed- ings.

SUMMARY OF ARGUMENT

The straightforward question this case presents is one of enormous practical significance: Must the ini- tial written notice served on noncitizens to commence their removal proceedings provide—in one docu- ment—the “time and place at which the proceedings will be held” (along with charges and other specified information) in order to satisfy the requirements of 8 U.S.C. § 1229(a), or does the statute allow the govern- ment to cobble together the required elements of a “notice to appear” from multiple documents, issued at different times, some containing misinformation, and

1 All parties have consented to the filing of this brief. Amici state that this brief was not authored in whole or in part by coun- sel for any party, and that no person or entity other than amici or their counsel made a monetary contribution intended to fund the preparation or submission of this brief.

2 The appendix provides a complete list of signatories.

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none of which alone contains all of the statutorily re- quired information?

Reversing the Sixth Circuit and holding that § 1229(a)’s requirements must be included in a single document will greatly reduce the procedural and bu- reaucratic errors attendant in a two-step process that detrimentally impact thousands of noncitizens law- fully seeking to remain in this country.

I. For noncitizens applying for cancellation of re- moval, service of a valid “notice to appear” under § 1229(a) triggers the so-called “stop-time” rule, which terminates the period of continuous presence required for cancellation eligibility. See 8 U.S.C. §§ 1229b(d)(1), 1229b(a)(2), 1229b(b)(1)(A). Separately but relatedly, for noncitizens ordered removed in ab- sentia, whether that “severe” penalty, Pereira v. Ses- sions, 138 S. Ct. 2105, 2111 (2018), is proper depends on whether the notice served on the noncitizen satis- fied the requirements of §1229(a). 8 U.S.C. § 1229a(b)(5)(A). This Court’s decision will thus touch not only those like Petitioner who are seeking cancel- lation of removal, but also those who may not even have been provided sufficient notice to appear for their removal hearings—and potentially severely punished as a result.

II. The Sixth Circuit’s ruling approves a two-step notice process that involves: (i) the Department of Homeland Security (“DHS”) serving on a noncitizen a putative notice to appear lacking time-and-place in- formation (or, perhaps worse, that includes fake time- and-place information), and (ii) only after that notice to appear is filed and docketed with the immigration court, the immigration court separately sending a “no- tice of hearing” supplying the time-and-place infor- mation to the noncitizen.

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Under this two-step process an initial notice lack- ing § 1229(a)’s time-and-place information languishes in a proverbial “No Man’s Land” until the notice is filed with an immigration court and entered into the court’s computer systems—a process that can take years. This delay increases the risk of procedural er- rors and lost filings, such as crucial Change of Address forms, which can result in noncitizens never receiving time-and-place information at all—potentially result- ing in wholly unjustified in absentia removal orders.

Sorting through those issues adds to immigration judges’ fact-finding burdens by requiring them to di- vert attention from the merits of a case to investigate collateral issues like whether time-and-place infor- mation was provided in a second document; whether that document was properly served; and whether a fil- ing like a Change of Address form was submitted but ultimately lost in “No Man’s Land.” When coupled with the pressure to complete cases—even if it means churning out in absentia removal orders without fully considering whether the noncitizen received adequate time-and-place notice—the result may be an increase in unwarranted removal orders.

These problems would be ameliorated if the gov- ernment simply provided the actual time-and-place information in a single document as required by § 1229(a).

III. Requiring DHS to work with the Executive Office of Immigration Review (“EOIR”) to obtain time- and-place information before serving a notice to ap- pear—and including such information in that docu- ment, as § 1229(a) and Pereira require—is practical and within the government’s capabilities.

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A single-step notice process, consistent with this Court’s ruling in Pereira, furthers the due process ax- iom that a party charged to defend against a legal pro- ceeding must receive notice of the time and place of the proceeding and an opportunity to be heard.

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Read the complete brief, with better formatting, at the link!

Of course we couldn’t have done this without the amazing talent and assistance of Amer S. Ahmed and the rest of the “Pro Bono All-Star Team” 🎖🏆 @ Gibson Dunn! Just another example of the essential contribution of pro bono lawyers to literally saving our legal system that has been featured on “Courtside” this week!

Due Process Forever!

PWS

08-14-20

DUE PROCESS: Round Table ⚔️🛡 Files Amicus Brief in Yanez-Pena v. Barr (5th Cir.) Cert. Petition — Pereira Issue

Richard W. Mark, Esquire
Partner
Gibson Dunn
New York

Amer S. Ahmed, Esquire
Partner
Gibson Dunn
New York

Read the entire brief here:

Yanez-Pena Amicus Brief TO FILE

Here’s the summary from the brief :

SUMMARY OF ARGUMENT

It is an axiom of due process that a party charged to defend against a legal proceeding must receive notice of the time and place of the proceeding and an opportunity to be heard. This Court’s ruling in Pereira v. Sessions, 138 S. Ct. 2105 (2018), reflects that axiom in the context of initiating removal proceedings by “notice to appear.”

This petition presents a straightforward question of enormous practical significance that has divided the five courts of appeals to have considered the issue: Must the initial written notice served on noncitizens to commence their removal proceedings provide—in

1 All parties have consented to the filing of this brief. Amici state that this brief was not authored in whole or in part by counsel for any party, and that no person or entity other than amici or their counsel made a monetary contribution intended to fund the preparation or submission of this brief.

2 The appendix provides a complete list of signatories.

2

one document—the “time and place at which the proceedings will be held” (along with charges and other specified information) in order to satisfy the require- ments of 8 U.S.C. § 1229(a), or does the statute allow the government to cobble together the required elements of a “notice to appear” from multiple documents, issued at different times, none of which alone contain all of the statutorily required information?

Resolution of this issue will affect thousands of people in the immigration system. For noncitizens applying for cancellation of removal, service of a valid “notice to appear” triggers the so-called “stop-time” rule, which terminates the period of continuous pres- ence required for cancellation eligibility. For noncitizens ordered removed in absentia, whether that se- vere penalty is proper depends on whether the notice served on the noncitizen satisfied the requirements of § 1229(a).

This Court should grant review to resolve the accelerating circuit split over this issue. The Fifth Circuit, agreeing with the Sixth Circuit, held that a defective “notice to appear” lacking the statutorily required time-and-place information could be “cured” by a subsequent “notice of hearing” containing that information, such that the separate documents considered together become “a notice to appear,” with the stop- time rule being triggered upon later service of the “curative” notice of hearing. See Yanez-Pena v. Barr, 952 F.3d 239 (5th Cir. 2020); Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019). The Third and Tenth Circuits, based on the plain language of § 1229(a) and this Court’s decision in Pereira, 138 S. Ct. at 2105, have reached the opposite conclusion. See Guadalupe v. Atty. Gen., 951 F.3d 161 (3d Cir. 2020); Banuelos v. Barr, 953 F.3d 1176 (10th Cir. 2020). A divided panel

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of the Ninth Circuit was in accord with the Third and Tenth Circuits, before that court granted rehearing en banc. See Lopez v. Barr, 925 F.3d 396, 405 (9th Cir. 2019), vacated and reh’g en banc granted, 948 F.3d 989 (9th Cir. 2020).

This Court should bring harmony to federal law by granting certiorari, reversing the Fifth Circuit, and restoring the common-sense interpretation of § 1229(a) as requiring one document that satisfies the statute’s requirements.

I. The question presented affects many thousands of people across the country. As the government told this Court in 2018, “almost 100 percent” of putative notices to appear omit the required time-and-place in- formation. Pereira, 138 S. Ct. at 2111. Hundreds of thousands of notices to appear are served each year; a dispute about validity is embedded in every proceed- ing initiated with a notice that lacks time-and-place information. Indeed, tens of thousands of cancellation applications remain pending, each one requiring an IJ to determine whether the stop-time rule was triggered by § 1229(a) notice. Similarly, tens of thousands of in absentia removal orders are issued every year, each one dependent on whether proceedings began with the noncitizen’s being served a notice to appear that com- plies with § 1229(a).

This case involves the application of § 1229(a) in both the cancellation of removal and in absentia removal contexts, thus presenting an optimal vehicle to address the question presented. See Petition for a Writ of Certiorari (“Pet.”) at 22-24.

II. Deciding the question presented will also pro- mote uniformity in the nation’s immigration laws. Uniformity in this sphere is a foundational principle

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of American law, with the Constitution explicitly directing Congress “[t]o establish an uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4. But there can be no uniform law if basic questions affect- ing the right of an individual to remain in the country get an answer that varies among the circuits. Such a regime would result in divergent outcomes based on geography alone, not the merits of any particular noncitizen’s case.

This unfairness may be exacerbated by the Department of Homeland Security’s (“DHS”) discretion to select the venue for a removal proceeding, and thus the law that governs the case. DHS’s ability to choose the venue, coupled with its ability to transfer detainees wherever it sees fit, opens the door to unfair forum shopping for the circuit law it prefers.

III. Requiring DHS to work with the Executive Office for Immigration Review (“EOIR”) to obtain time-and-place information before serving a notice to appear—and including such information in that document, as § 1229(a) and Pereira require—is practical and will reduce administrative inefficiency and error. Doing so will also achieve the legislative purpose of the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”), Pub. L. 104-208, Div. C, 110 Stat. 3009-546, of which § 1229(a) was a part, by instituting a “single form of notice” to “simplify procedures for initiating removal proceedings.” H.R. Rep. 104-469(I), 1996 WL 168955 at *159.

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Many thanks to our GOOD friends Richard W. Mark and Amer S. Ahmed and their team over at the NY Office of Gibson Dunn for their extraordinary pro bono assistance in drafting our brief.

Due Process Forever!👍🏼

PWS

05-12-20

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