"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Nevertheless, Cruz argues correctly that Isidro-Zamorano, 25 I. & N. Dec. 829, leaves open the possibility for adjudication of the merits of a cancellation application where the qualifying relative aged out of qualifying status because of undue procedural delays. As explained below, the facts are unclear as to why briefing and decision were delayed. As such, we remand for the BIA to address in the first instance whether the delays on appeal in this case were undue and attributable to the agency, and if they were, for the BIA to review the IJ’s denial of cancellation of removal in the first instance.
**********************************
This is yet another in a long list of examples of how the Circuit actually did a better job than the BIA of locating, understanding, and following binding BIA precedent potentially favorable to the respondent!
I wouldn’t bet on today’s BIA adopting on remand an interpretation favoring the applicant, even though, as pointed out by the Second Circuit, such an interpretation would be legally possible. Perhaps, this is a case where amici need to “weigh in” before the BIA on remand.
In my mind, it also raises questions of whether the numerous unnecessary delays, backlogs, and confusion caused by the BIA’s failure to follow the statutory language on the “stop time rule” for 42B cancellation, as twice found by the Supremes, could be categorized as “unnecessary — and totally foreseeable — delay?” Both courts and advocates warned the BIA — in vain — that ignoring the clear language of the statute was a huge mistake that would create more unnecessary disorder in the already dysfunctional EOIR system! But, in their haste to rule in favor of DHS Enforcement, the BIA once again ignored the experts.
🇺🇸 Due Process Forever!
PWS
04-07-24
******************************
ADDENDUM FROM “SIR JEFFREY:”
“Thanks, Paul (and hi to everyone!), but credit to Ray Fasano for flagging this.
Best, Jeff”
Thanks, Ray!
H. Raymond Fasano, Esquire PHOTO: Super Lawyers Profile
“This appeal arises from the Board of Immigration Appeals’ (BIA) denial of Karla Yadira Lara Canales’s motion to reopen her removal proceedings. The BIA denied her motion to reopen as untimely, leaving the order of removal in place. We now VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND so that the BIA may properly consider whether Lara Canales is entitled to equitable tolling. … [E]ach of the BIA’s bases for determining that Lara Canales had not accrued the continuous physical presence required for eligibility of cancellation of removal was legal error. We now hold that Lara Canales is statutorily eligible to seek cancellation of removal. However, this holding does not automatically entitle Lara Canales to have her motion to reopen heard on the merits. The BIA must, upon remand, engage in the fact-intensive determination of whether the 90-day deadline on motions to reopen should be tolled because of the extraordinary circumstance presented by Pereira. If the BIA determines Lara Canales satisfies the requirements for equitable tolling, she may then present her motion for a determination on its merits. We therefore VACATE the BIA’s denial of Lara Canales’s motion to reopen and REMAND this case for further consideration not inconsistent with this opinion.”
[Hats off once again to superlitigator Raed Gonzalez!]
Thanks Raed for continuing to lead the fight for justice in “America’s worst ‘court’ system” in America’s most right-wing Circuit!
THIS “any reason to deny mentality” at EOIR, still being promoted by Garland’s BIA, combined with incredibly inept and unprofessional “administration” of EOIR by DOJ, is why the Immigration Court is broken and being crushed by unending backlogs, daily chaos, and a travesties of justice and sound government!
The Biden Administration pretends like the problem doesn’t exist and/or isn’t important enough to fix. But, I can assure you that they are WRONG! “Dead wrong” in some cases!
In addition to the public manifestations of dysfunction and unprofessionalism like this case, I get regular e-mails from NDPA members relating their own EOIR horror stories and venting their frustrations with the arrogant “above the fray/what me worry about humanity and those defending it” attitude of Garland and the rest of the Biden Administration responsible for the ongoing EOIR catastrophe!
I strongly doubt that Garland, Monaco, Gupta, Prelogar, and the rest of the DOJ “clueless crew” responsible for this indelible blot on American justice would last 60 days if required to practice exclusively before EOIR under the unfathomably horrible, due-process-denying conditions they have promoted and enabled over their past two years of horrible legal “leadership!” As aptly stated by one practitioner who recently contacted me:
“Things in Immigration Court will never be the same, but I at least expected attention to due process. Nope, IJ’s are more interested in getting the cases done.”
How is this appropriate conduct from a Dem Administration that claims to value human lives, racial justice, and the rule of law, but whose actions at EOIR (and elsewhere in immigration and human rights) say the exact opposite? Poorly functioning as EOIR was when I retired in 2016, the “anecdotal consensus” from practitioners seems to be that it’s measurably worse now under Garland’s inept leadership! “Come on man,” this just isn’t right!
After all this time (17 years since the BIA’s supposedly “final” order), this case is still not complete! It’s back at the BIA for yet another chance for them to deny on specious, legally incorrect grounds. One possibility is to misapply the “equitable tolling” concept mentioned by the 5th Circuit. The BIA has a long, disgraceful record of resisting and mis-applying equitable tolling.
Or, perhaps they will attempt to invoke their recent precedent in Matter of Chen, 28 I&N Dec. 676 (BIA 2023) https://www.justice.gov/eoir/page/file/1561876/download to deny reopening for “failing to make out a prima facie case for relief on the merits.”
Chen is a case where the the respondent moved to reopen to apply for NLP cancellation having attained the required 10 years of physical presence by reason of the BIA’s two wrong-headed precedents overruled by the Supremes in Pereira v. Sessions and Niz-Chavez v. Garland. Having twice screwed up in a way that created tens of thousands of potential remands and reopenings, someone not familiar with the BIA might have expected them to set forth clear, practical, generous criteria that would encourage IJ’s to consistently reopen cases where the respondent now had the qualifying time and relative(s) in light of the problems caused by the BIA itself. After all, that’s basically the direction in the BIA’s long-standing precedent Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996) (reopening where the record“indicate[s] a reasonable likelihood of success on the merits, so as to make it worthwhile to develop the issues at a hearing”). https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjWzY36pdn8AhVgF1kFHTcxChEQFnoECBkQAQ&url=https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3281.pdf&usg=AOvVaw2Ntzlp4MuxfupmjaDIn7i6
Since “exceptional and extremely unusual hardship” is inherently a fact-bound issue requiring a hearing to develop those facts, one might expect most cases to be routinely reopened.
But, the BIA took a different tack in Chen. While acknowledging that the hardship asserted by the respondent fell within the zone of those “recognized” by the BIA, they found “she has not identified and documented heightened hardship beyond that which would normally be expected to occur in such circumstances.”
While the BIA claimed to be “following” Matter of L-O-G-, they actually appear to have violated the teaching of that case that: “In considering a motion to reopen, the Board should not prejudge the merits of a case before the [respondent] has had an opportunity to prove the case.”(21 I&N Dec. at 419). That should particularly be true when the BIA itself has had a major role in creating the situation where reopening is sought.
By providing only a negative precedent (they didn’t even botherto “bookend” this with a precedential example of a grantable motion) to a system already suffering from a “culture of denial,” the BIA aggravated an long-festering problem. One can expect many IJ’s to view Chen as an “invitation to deny” the many Pereira/Niz Chavez motions to reopen in the offing for specious reasons or indeed for “any reason at all.” I expect talented NDPA warriors like Raed to make mincemeat out of the BIA’s wrong-headed attempt to minimize the “Pereira-induced damage” they have generated.
Like most of the misguided efforts of the 21st Century BIA, this attempt to cut corners, summarily deny, and NOT provide full due process and real hearings is likely to take more time and waste more resources than simply giving respondents the fair merits hearings to which they are legally entitled in the first place.But, that’s exactly what this Dem Administration has wrought at EOIR. “More of the same, instead of the promised change!”
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)Raed Gonzalez ESQUIRE Chairman, Gonzalez Olivieri LLP Houston, TX PHOTO: best lawyers.com
From Dan:
Another CA5 Pereira / Niz-Chavez Remand: Parada v. Garland (unpub.)
“[T]he BIA’s decision to deny Parada’s motion to reopen was based on a legally erroneous interpretation of the statutes governing Notices to Appear and the stop-time rule. The Supreme Court has since reinforced the holding of Pereira and held—again— that to trigger the stop-time rule, a Notice to Appear must come in the form of “a single document containing all the information an individual needs to know about his removal hearing.” Niz-Chavez v. Garland, 141 S. Ct. 1474, 1478, 1486 (2021). That did not occur in this case, as the Notices to Appear served on Parada and her daughter did not contain the time or date for their removal proceedings. Thus, because “[a] putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a),’ and so does not trigger the stop-time rule,” Pereira, 138 S. Ct. at 2113–14 (quoting 8 U.S.C. § 1229b(d)(1)(A)), the deficient Notices to Appear received by the Paradas did not stop the clock for the Paradas. … [O]ne of two keys must fit before the stop-time rule can be unlocked: service of a valid Notice to Appear or commission of an enumerated offense. The latter has not occurred here as no one has asserted that either of the Paradas has committed such an offense. And we have already concluded that the former has not occurred because the Notices to Appear served on the Paradas lacked the time and date of their hearing. Thus, the stop-time-rule box remained locked, the Paradas’ clock never stopped, and they accrued the necessary 10 years to satisfy the physical-presence requirement for cancellation of removal. In so concluding, we agree with the Ninth Circuit [emphasis added] which also held that “[b]y its terms . . . the stop-time rule applies to only the two circumstances set out in the statute, and a final order of removal satisfies neither.” Quebrado Cantor, 17 F.4th at 871. … To return to the analogy above, when Congress provided the two exceptions to the physical-presence requirement, it created all the keys that would fit. It did not additionally create a skeleton key that could fit when convenient. To conclude otherwise “would turn this principle on its head, using the existence of two exceptions to authorize a third very specific exception.” Quebrado Cantor, 17 F.4th at 874. Instead, “the ‘proper inference’ is that Congress considered which events ought to ‘stop the clock’ on a nonpermanent resident’s period of continuous physical presence and settled, in its legislative judgment, on only two.” Id. (quoting Johnson, 529 U.S. at 58). Lacking either here, the BIA committed a legal error in concluding otherwise and finding that the Paradas did not satisfy the physical-presence requirement to be eligible for cancellation of removal. For the foregoing reasons, the petition for review is GRANTED and the case is REMANDED to the BIA for further proceedings consistent with this opinion. … IT IS FURTHER ORDERED that respondent pay to petitioners the costs on appeal [emphasis added] to be taxed by the Clerk of this Court.”
[Yet another victory for Superlitigator Raed Gonzalez! Who else could persuade CA5 to agree with CA9, and get an award of costs?]
Due Process Superheroes like Houston’s Raed Gonzalez are standing up for the rights of EVERYONE in America! PHOTO: Creative Commons
Kudos to Raed for “taking it to” America’s worst “courts” in America’s most “immigrant-unfriendly” Circuit!
Tons of “rotten tomatoes” to Garland for his horrible mismanagement of EOIR, OIL, and the legal aspects of immigration policy at DOJ!
Rotten Tomatoes Garland & his lieutenants deserve appropriate recognition for failing to bring long-overdue reforms to America’s most dysfunctional “parody of a court system” — EOIR! PHOTO: Creative Commmons
Immigration expert Professor Richard Boswell of UC Hastings College of Law asks: “Can someone explain why the government has been so obstinate on these cases?I like the fee award but I doubt that it has much impact on their behavior.”
Professor Richard Boswell UC Hastings Law PHOTO: LinkedIn Professor Boswell asks the right question. So far, “Team Garland” has no answers!
I wish I knew, my friend, I wish I knew! There is no rational excuse for Garland’s abject failure to: put EOIR and OIL under progressive expert leadership committed to human rights and due process; replace the many weak “Trump holdover appointees” at the BIA with expert real, professionally competent judges; weed out more of the “deadwood” on the immigration bench; bring in qualified experts as EOIR Judges who could potentially create an existential improvement in the composition, performance, and procedures of the entire Federal Judiciary that would go even beyond the essential task of saving the lives of migrants; and finally make Constitutional Due Process and equal justice for all real at the “retail level” of our American Justice system!
If our democracy fails — certainly an unhappy possibility at this point in time — future historians will undoubtedly dissect the major responsibility stemming from Garland’s inexplicably weak, disconnected, and inept performance in ignoring the dangerous dysfunction in our Immigration Courts and Immigration Judiciary.
The scurrilous attack on our democracy by far-right demagogues started with racist lies about immigrants, continued with the weaponizing of the Immigration Courts, and evolved with the compromising of the Article III Judiciary! But, it certainly hasn’t ended there!
Getting rid of the leftovers of the “Trump Kakistocracy” at DOJ and EOIR should be one of the top priorities of the Biden Administration’s “campaign to save American democracy!” Why isn’t it?
The unconscionable failure of Garland’s chief lieutenants, Lisa Monaco, Vanita Gupta, Kristen Clarke, and Elizabeth Prelogar — all of whom supposedly have some experience and expertise in constitutional law, human rights, civil rights, racial justice, and legal administration (talk about a shambles at EOIR!) — to get the job done for immigrant justice at DOJ also deserves to go “under the microscope” of critical examination.
How do they glibly go about their highly paid jobs daily while migrants suffer and die and their attorneys are forced to waste time and struggle against the absurdist disaster at EOIR? Can any of these “out of touch” bureaucrats and politicos even imagine what it’s like to be practicing at today’s legally incompetent, insanely mal-administered, intentionally anti-due-process, overtly user unfriendly EOIR?
By the grace of God, I’m not practicing before the Immigration Courts these days! But, after recent conversations with a number of top practitioners who are being traumatized, having their precious time wasted, and seeing their clients’ lives threatened by EOIR’s stunning ongoing incompetence and dysfunction, I don’t understand what gives high-level political appointees and smug bureaucrats the idea that they are entitled to be “above the fray” of the godawful dysfunction, downright stupidity, and human trauma at EOIR for which they are fully accountable!
One practitioner opened their so-called “EOIR Portal” to show me how they were being mindlessly “double and triple booked,” sometimes in different locations, even as we spoke. Cases set for 2024 were “accelerated” — for no obvious reason — to October 2022 without advance notice to or consultation with the attorney — a clear violation of due process! Asylum cases that would require a minimum of three hours for a fair hearing were being “shoehorned” into two-hour slots, again without consulting the parties!
Long a backwater of failed technology, the “powers that be” at EOIR and DOJ are misusing the limited, somewhat improved technology they now possess to make things worse: harassing practitioners, discouraging representation, and further undermining due process with haste makes waste “Aimless Docket Reshuffling.” Because of EOIR’s gross mismanagement, more Immigration Judges are actually producing more backlog, issuing more wrong decisions, and generating more unnecessary non-dispositive time-wasting motions. It’s an abuse of power and public funding on a massive, mind-boggling scale that undermines our entire justice system!
It seems that the “malicious incompetence” of the Trump DOJ has been exchanged for “just plain incompetence and intransigence” at Garland’s DOJ. Is this “change we should embrace?” Hell no!
Let’s hope that the real superheroes like Raed Gonzalez, folks working in the trenches of our failed justice system, can bail the rest of us out and inspire others to use all legal and political means at our disposal to rise up against Garland’s intransigence on immigration, human rights,and racial justice at DOJ!
I agree with President Biden that the extreme, insurrectionist far-right is the greatest threat to American democracy at this moment. But, it is by no means the ONLY one! It’s time for everyone committed to our nation’s future as a constitutional democracy to look closely at the deadly EOIR farce that threatens humanity, undermines the rule of law in America, and squanders tax dollars and demand positive change! Now!
It’s not rocket science, 🚀 even if it is inexplicably “over Garland’s head!”
Has Alfred E. Neumann been “reborn” as Judge/AG Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
Garland, Mayorkas, and other Biden honchos appear unable to get beyond this “Stephen Miller vision” for legal asylum seekers. “Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Could there be any clearer example of the need to take this mess out of the DOJ and create a competent, expert, independent Article I Immigration Court with real judges?
The asylum/withholding portion of this decision appears to be an atrocious misconstruction and intentional misapplication of asylum law by the BIA!
This, in turn, should long ago have been adequate for a BIA of better-qualified appellate judges who have asylum expertise and are willing to to stand up for the legal rights of asylum seekers to issue a precedent finding a “pattern or practice” of such persecution in Guatemala. See, e.g., 8 C.F.R. § 1208.13(b)(2)(iii)(A).
With such a precedent, cases like this could be expeditiously granted at the Asylum Office or in focused Immigration Court hearings, instead of “kicking around the system” for more than three years and then being wrongly decided at both the trial and appellate levels. Wonder why our immigration system is a mess? Look no further than Garland’s anti-immigrant EOIR!
The panel’s conclusion that indigenous status wasn’t even “a reason” for gang persecution is preposterous — proof of institutional bias against asylum seekers, particularly those from the Northern Triangle!
The improperly and intentionally skewed asylum denial rates at our Southern Border feed the nativist fiction that asylum seekers are illegally seeking entry into the US. In reality, they appear to be victims of systemic racial, ethnic, and xenophobic bias fueled by both DHS and DOJ even under this Administration.
We currently have no functioning legal asylum system at ports of entry, nor have we had one for several years. “Gimmicks” like “Remain in Mexico” and “Title 42” have illegally replaced our legal protection system.
Why WOULDN’T folks seek refuge through irregular entry in such an insane situation? Who in their right mind wouldn’t?
This system further generates bogus “apprehension” numbers used by DHS, DOJ, and politicos of both parties to generate false panic about the arrival of persons seeking legal status that we have unlawfully suspended!
Many of these individuals deserve to be legally admitted and allowed to contribute to our society! Instead, they are demonized, demeaned, dehumanized, and otherwise mistreated by our Government.
Indeed, GOP politico-restrictionist-alarmists are already trying to inflame public opinion by raising the manufactured “specter” that a slow moving so-called “caravan” of unarmed, desperate, and vulnerable migrants seeking to apply for legal refuge from some of the most repressive and dangerous countries in the world are an existential threat to the security of what is supposed to be the most powerful nation on earth! Letter asking BIden to enforce laws at brder 11.4.21 What poppycock!
They mischaracterize the group as having “nonexistent asylum claims.” But, how would they or anyone else know, since we currently have no system to fairly adjudicate such claims and no reliable information about the individual circumstances on which they are based?
Instead of engaging in racially charged panic and lawless enforcement, why not just direct them to report to legal ports of entry where they could be properly screened by trained Asylum Officers in a prompt and fair manner? 400 well-trained Asylum Officers doing two cases per day could complete the screening in a matter of days or several weeks at most!
Those who pass credible fear could be referred to Immigration Court in cooperation with legal aid and NGO groups to help them prepare and insure appearance. Represented asylum seekers appear for Immigration Court at a rate approaching 100%! Why wouldn’t an Administration truly interested in a fair and orderly asylum system concentrate on increasing representation rather than imposing more “guaranteed to fail” enforcement-only gimmicks?
Those who do not pass credible fear could be returned, provided that can be done in a safe and humane manner, perhaps working with the UNHCR and other international aid organizations to insure safe and orderly acceptance in the home nations.
And, unlike the current lawless system, we would actually have some empirical information about the claims of those applying at the border. It seems likely that under a fair and legal application asylum law, many would have valid asylum claims. But, without a fair hearing system and more Immigration Judges and BIA judges who are experts in asylum law and will fairly apply it, who knows? Right now, everyone is just “guessing” about the potential merits the claims because we don’t now have, and haven’t for some years had, a fair system for deciding those individual cases!
An Administration unwilling to stand up for values, justice, and the rule of law for the most vulnerable among us doesn’t stand for much of anything at all. Maybe cowardice and lack of moral compass is the reason why Dems can’t govern and keep losing elections they should have won!
The GOP long ago “cornered the market” on dishonesty, immorality, and anti-democratic behavior. The Dems can gain nothing, and lose much, by emulating them!
NIZ-CHAVEZ v. GARLAND, ATTORNEY GENERAL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 19–863. Argued November 9, 2020—Decided April 29, 2021
Nonpermanent resident aliens ordered removed from the United States under federal immigration law may be eligible for discretionary relief if, among other things, they can establish their continuous presence in the country for at least 10 years. 8 U. S. C. §1229b(b)(1). But the so- called stop-time rule included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) provides that the pe- riod of continuous presence “shall be deemed to end . . . when the alien is served a notice to appear” in a removal proceeding under §1229a. §1229b(d)(1). The term “notice to appear” is defined as “written notice . . . specifying” certain information, such as the charges against the al- ien and the time and place at which the removal proceedings will be held. §1229(a)(1). A notice that omits any of this statutorily required information does not trigger the stop-time rule. See Pereira v. Ses- sions, 585 U. S. ___. Here, the government ordered the removal of pe- titioner Agusto Niz-Chavez and sent him a document containing the charges against him. Two months later, it sent a second document, providing Mr. Niz-Chavez with the time and place of his hearing. The government contends that because the two documents collectively specified all statutorily required information for “a notice to appear,” Mr. Niz-Chavez’s continuous presence in the country stopped when he was served with the second document.
Held: A notice to appear sufficient to trigger the IIRIRA’s stop-time rule is a single document containing all the information about an individ- ual’s removal hearing specified in §1229(a)(1). Pp. 4–12.
(a) Section 1229b(d)(1) states that the stop-time rule is triggered by serving “a notice,” and §1229(a)(1) explains that “written notice” is “re- ferred to as a ‘notice to appear.’ ” Congress’s decision to use the indef- inite article “a” suggests it envisioned “a” single notice provided at a
2
NIZ-CHAVEZ v. GARLAND Syllabus
discrete time rather than a series of notices that collectively provide the required information. While the indefinite article “a” can some- times be read to permit multiple installments (such as “a manuscript” delivered over months), that is not true for words like “notice” that can refer to either a countable object (“a notice”) or a noncountable abstrac- tion (“sufficient notice”). The inclusion of an indefinite article suggests Congress used “notice” in its countable sense. More broadly, Congress has used indefinite articles to describe other case-initiating plead- ings—such as an indictment, an information, or a civil complaint, see, e.g., Fed. Rules Crim. Proc. 7(a), (c)(1), (e); Fed. Rule Civ. Proc. 3—and none suggest those documents might be delivered by installment. Nor does the Dictionary Act aid the government, as that provision merely tells readers of the U. S. Code to assume “words importing the singular include and apply to several persons, parties, or things.” 1 U. S. C. §1. That provision means only that terms describing a single thing (“a no- tice”) can apply to more than one of that thing (“ten notices”). While it certainly allows the government to send multiple notices to appear to multiple people, it does not mean a notice to appear can consist of mul- tiple documents. Pp. 4–9.
(b) The IIRIRA’s structure and history support requiring the govern- ment to issue a single notice containing all the required information. Two related provisions, §§1229(e)(1) and 1229a(b)(7), both use a defi- nite article with a singular noun (“the notice”) when referring to the government’s charging document—a combination that again suggests a discrete document. Another provision, §1229(a)(2)(A), requires “a written notice” when the government wishes to change an alien’s hear- ing date. The government does not argue that this provision contem- plates providing “the new time or place of the proceedings” and the “consequences . . . of failing . . . to attend such proceedings” in separate documents. Yet the government fails to explain why “a notice to ap- pear” should operate differently. Finally, the predecessor to today’s “notice to appear” required the government to specify the place and time for the alien’s hearing “in the order to show cause or otherwise.” §1252(a)(2)(A). The phrase “or otherwise” has since disappeared, fur- ther suggesting that the required details must be included upfront to invoke the stop-time rule. Indeed, that is how the government itself initially read the statute. The year after Congress adopted IIRIRA, in the preamble to a proposed rule implementing these provisions, the government acknowledged that “the language of the amended Act in- dicat[es] that the time and place of the hearing must be on the Notice to Appear.” 62 Fed. Reg. 449 (1997). Pp. 9–13.
(c) The government claims that not knowing hearing officers’ avail- ability when it initiates removal proceedings makes it difficult to pro-duce compliant notices. It also claims that it makes little sense to re- quire time and place information in a notice to appear when that in- formation may be later changed. Besides, the government stresses, its own administrative regulations have always authorized its current practice. But on the government’s account, it would be free to send a person who is not from this country—someone 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. Congress could reasonably have wished to foreclose that possibility. And ultimately, pleas of adminis- trative inconvenience never “justify departing from the statute’s clear text.” Pereira, 585 U. S., at ___. The modest threshold Congress pro- vided to invoke the stop-time rule is clear from the text and must be complied with here. Pp. 13–16.
789 Fed. Appx. 523, reversed.
GORSUCH, J., delivered the opinion of the Court, in which THOMAS, BREYER, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined. KAVANAUGH, J., filed a dissenting opinion, in which ROBERTS, C. J., and ALITO, J., joined.
*************************
This is the type of case where I had hoped that Justice Gorsuch would “stick to his interpretative guns” by stopping the Government from basically redesigning clear statutory requirements “willy nilly” to suit their own purposes and disadvantage respondents. And, he came through! Big time! I’ve been critical of Justice Gorsuch in the past and am likely to be so again in the future. But, in this case, he did the right thing, and I, for one, am grateful!
Most encouraging, Justice Gorsuch “got” the way that the DHS and EOIR, with the deck already unfairly stacked in their favor, manipulate clear legal requirements for their own nefarious purposes and to the disadvantage of those struggling for justice in an inherently unfair system. There is absolutely no doubt that receiving “piecemeal notice” — incomplete and often sent to incorrect addresses or “personally served” without the proper reading and explanations — works to further disadvantage respondents.
Indeed, illegal, ineffective notices — some setting hearings on “phantom dates” and “imaginary times” — lead directly to an over abundance of “in absentia” orders and consequent illegal removals. Some unrepresented individuals understand how to reopen their hearings for lack of notice — but many are clueless; the Government system strives to keep them that way to “jack up the numbers,” meet “quotas,” and improve stats. Worse yet, Congress sometimes uses the “bogus stats” generated by DOJ and DHS to write legislation, conduct oversight, and establish policy. This is an astoundingly broken, dysfunctional, and intentionally unfair system — a disgrace to our entire justice system and our national conscience each day it is allowed to continue to operate in its abusive ways!
The majority in this case was both very interesting, and at least mildly encouraging, for those of us who believe in due process and fundamental fairness for all persons, including migrants, under law. In addition to Trump appointees Justice Gorsuch and Justice Barrett, another GOP conservative appointee, Justice Thomas, joined Justices Breyer, Kagan, and Sotomayor in the majority!
And, although this case has (incorrectly) seemed “hyper technical” to some Supremes’ watchers unfamiliar with immigration, it will have huge impact — forcing reopening and “redos” in tens of thousands, perhaps hundreds of thousands, of cases in the already backlogged (1.3 million cases) Immigration Court. That will be the direct result of poor jurisprudence by the BIA, lousy court administration by EOIR, and horrible policy decisions by DHS.
Just another prime example of how “haste makes waste” enforcement gimmicks continue to cause unnecessary chaos in the system. Why not just appoint progressive experts as Immigration Judges and BIA Appellate Judges. Qualified jurists who will understand immigration law, due process, and “get in right” in the first instance? Certainly seems like a reasonable approach. What is Judge Garland waiting for?
This, in turn should add to the already loud cries (from virtually everywhere outside Judge Garland’s universe and the restrictionist right) for sensible, readily available backlog reductions and accelerated movement toward better judges and independence in the Immigration Courts, not to mention better management in the DHS enforcement programs.
Here’s my favorite quote from Justice Gorsuch’s majority opinion:
In the end, though, all this speculation is beside the point. The dissent tries to predict how the government will react to a ruling that requires it to follow the law and then pro- ceeds to assess the resulting “costs” and “benefits.” Post, at 17, 20–21. But that kind of raw consequentialist calcula- tion plays no role in our decision. Instead, when it comes to the policy arguments championed by the parties and the dissent alike, our points are simple: As usual, there are (at least) two sides to the policy questions before us; a rational Congress could reach the policy judgment the statutory text suggests it did; and no amount of policy-talk can overcome a plain statutory command. Our only job today is to give the law’s terms their ordinary meaning and, in that small way, ensure the federal government does not exceed its statutory license. Interpreting the phrase “a notice to ap-pear” to require a single notice—rather than 2 or 20 docu- ments—does just that.
*
At one level, today’s dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. In this case, the law’s terms en- sure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. 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.
The judgment of the Court of Appeals for the Sixth Cir- cuit is
Reversed.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
And, here’s some “immediate commentary” by Round Table spokesperson “Sir Jeffrey” Chase:
Victory!This was the case in which our Round Table amicus brief was specifically referenced in oral argument.
Knightess of the Round Table
Congrats to all involves, and Due Process Forever!
This morning the Supreme Court issued orders from the justices’ private conference last week. The court added one new case to its merits docket for the term that begins in October. The justices once again did not act on two groups of high-profile petitions – one involving gun rights and the other involving qualified immunity – that they considered last week.
With the grant in Niz-Chavez v. Barr, the justices added another immigration case to their docket for next term. At issue in the case is the kind of notice that the government must provide to trigger the “stop-time rule,” which stops noncitizens from accruing the time in the United States that they need to become eligible for discretionary relief from deportation. Congress passed the “stop-time rule” to keep noncitizens from taking advantage of lengthy delays in deportation proceedings to continue to accrue time. Under the rule, a noncitizen’s time in the United States, for purposes of relief from deportation, ends when the government sends him a “notice to appear” containing specific information about a scheduled removal proceeding. The question that the justices agreed to decide today is whether all the necessary information must be provided in a single document in order to trigger the stop-time rule, as Agusto Niz-Chavez, who came to the United States from Guatemala in 2005, contends, or whether the government can trigger the rule by providing the information in multiple documents.
************************
Our Round Table has filed amicus briefs on this issue in a number of similar cases, although not in this particular case, which originated in the 6th Circuit.
At issue here is the BIA’s precedent in Matter of Mendoza-Hernandez, 27 I. & N. Dec. 520 (BIA 2019). There, in a now-rare en banc decision, the BIA majority basically “flicked off” the Supremes’ decision in Pereira v. INS, 138 S. Ct. 2105 (2018) and allowed the DHS to remedy a defective statutory Notice to Appear (“NTA”) with a later-issued EOIR notice of hearing providing the missing information to “fill in the blanks” from the original defective notice.
In an even more unusual and potentially career-shortening move, six of the BIA’s then 15 Appellate Immigration Judges filed a strongly-worded dissent accusing their majority colleagues of ignoring both the words of the statute and the Court’s Pereira decision. Perhaps not surprisingly, three of the dissenting judges have since retired from the BIA and a fourth, the Vice Chair, was passed over for Acting Chair in a highly unusual personnel move by the DOJ, which controls the BIA. (One of the primary reasons for having a designated “Vice Chair” is to be the “Acting Chair” in the absence of the Chairman.) In their places, Barr has appointed some of the most notorious hard-line asylum denying Immigration Judges in the nation.
The Supremes have thus far tiptoed around the glaring unconstitutionality of a so-called “appellate tribunal” that is appointed, wholly controlled by, and answers to the chief prosecutor, the Attorney General. Not surprisingly, upon discovering the Constitution-nullifying power of a “captive court system,” that is not a court at all under any common understanding of the term, the Administration has leveraged it to the max as a tool for their White Nationalist anti-immigrant agenda. Indeed, all the recent BIA and Attorney General precedents have ruled in favor of the DHS position, even where statutory language, Article III court rulings, prior precedents, and common sense strongly supported the opposite results.
And, many Courts of Appeals have continued to fictionalize that the highly politicized and “weaponized” BIA is an “expert tribunal” entitled to “Chevron deference.” Any true immigration law expert would say that proposition is absurd. Yet, it conveniently furthers the causes ofboth “judicial task avoidance” and the White Nationalist agenda of the Administration.
Because the BIA now occupies itself not with fair and impartial, expert decision-making, but mostly with keeping the “deportation express” running and insuring that DHS prevails over the legal claims of migrants and asylum seekers to fair and humane treatment under the law, the Supremes are finding themselves in the middle of the “statutory and regulatory nitty gritty” of immigration law that was supposed to be the province of a competent and impartial BIA.
While that has occasionally, as in Pereira, worked to the advantage of individuals seeking justice, for the most part, the Supremes have been willing enforcers of the Administration’s abrogation of immigration laws without Congressional participation and “Dred Scottification” of “the other” in violation of our Constitution, and indeed, in violation of both international conventions and fundamental human decency.
Think of how much better and more efficiently the immigration system could run with a constitutionally-required independent Immigration Court utilizing fair and impartial judges selected on the basis of expertise and reputation for fairness and scholarship rather than commitment to DHS enforcement goals.Think of how much better off our society would be if the Supremes stood up for equal justice for all, rather than enabling a far-right would-be authoritarian scofflaw regime following aracially-biased agenda of dehumanization, degradation, and deportation.
Matter of MENDOZA-HERNANDEZ CAPULA-CORTES, 27 I&N Dec. 520 (BIA 2019)
HEADNOTE BY BIA STAFF:
A deficient notice to appear that does not include the time and place of an alien’s initial removal hearing is perfected by the subsequent service of a notice of hearing specifying that missing information, which satisfies the notice requirements of section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a) (2012), and triggers the “stop-time” rule of section 240A(d)(1)(A) of the Act, 8 U.S.C. § 1229b(d)(1)(A) (2012). Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished; Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), followed.
BIA EN BANC:
MAJORITY OPINION: BIA APPELLATE IMMIGRATION JUDGE GREER, JOINED BY NEAL, Chairman; MALPHRUS, WENDTLAND, MULLANE, MANN, O’CONNOR, LIEBOWITZ, and KELLY, APPELLATE IMMIGRATION JUDGES
DISSENTING OPINION: APPELLATE IMMIGRATION JUDGE GUENDELSBERGER, JOINED BY ADKINS-BLANCH, Vice Chairman; COLE, GRANT, CREPPY, KENDALL CLARK, APPELLATE IMMIGRATION JUDGES
KEY QUOTE FROM DISSENT:
Congress, in section 240A(d)(1)(A) of the Act defined the event that triggers the “stop-time” rule as “service of a notice to appear under section 239(a).” The Court in Pereira, 138 S. Ct. at 2114–15, held that Congress’ reference to “service of a notice to appear under section 239(a),” means a “notice to appear” as defined in section 239(a)(1) of the Act. The Court also held that, “[b]ased on the plain language of the statute, it is clear that to trigger the stop-time rule, the Government must serve a notice to appear that, at the very least, ‘specif[ies]’ the ‘time and place’ of the removal proceedings.” Id. at 2114 (alteration in original) (quoting section 239(a)(1) of the Act). As the Court concluded, “At the end of the day, given the clarity of the plain language, we ‘apply the statute as it is written.’” Id. at 2119–20. The plain language of the Act leaves no room for the majority’s conclusion that a subsequent notice of hearing can cure a notice to appear that fails to specify the time and place of the initial removal hearing.
For these reasons, neither the service of the notice to appear nor the subsequent service of a notice of hearing on the respondents triggered the “stop-time” rule for purposes of cancellation of removal under section 240A of the Act. We therefore respectfully dissent.
***********************************
It’s very unusual these days for the BIA to sit en banc. That means in most precedent cases we only know what the 3–Judge Panel thought and that at least 8 Judges on the en banc BIA agreed to publication (regardless of whether they agreed with the result).
This won”t happen at all under Barr’s new “Dumb Down the BIA Proposal.” The BIA will be diluted into “regional adjudication centers.” Any panel of three “Judges” (actually reduced to the role of DOJ adjudicators working for one of the Administration’s immigration enforcement politicos) could designate a precedent by majority vote. Thus, a two-Judge panel majority could create a precedent over the objection of a dissenting Judge and without dialogue with or approval of their many colleagues. Nice way to run the “railroad.”
Congrats to the six dissenting Judges who stood up for the better view of the law! It might not help your careers in today’s DOJ, but it is encouraging to know there is some internal resistance to Barr’s one-sided “deportation railway.”
If the dissenters are correct, the majority’s view could cause incredible additional disruption, “aimless docket reshuffling,” “do-overs,” and unfairness in an already dysfunctional system. That’s because tens of thousands of cases that would face summary denial for failure to meet the ten-year cutoff under the majority’s view would be entitled to full merits hearings on their cancellation of removal applications under the dissenters’ view.
Once again, lives will be in limbo while the Article III Courts work through all of the legal implications of EOIR’s acquiescence and participation in the DHS’s conscious decision to ignore the “Notice to Appear” requirements set forth by Congress in the INA.
MAJORITY OPINION: Justice Sotomayor for herself and seven others.
CONCURRING OPINION: Justice Kennedy
DISSENTING OPINION: Justice Alito
KEY QUOTE FROM MAJORITY:
Unable to find sure footing in the statutory text, the Government and the dissent pivot away from the plain language and raise a number of practical concerns. These practical considerations are meritless and do not justify departing from the statute’s clear text. See Burrage v.United States, 571 U. S. 204, 218 (2014).
The Government, for its part, argues that the “adminis- trative realities of removal proceedings” render it difficult to guarantee each noncitizen a specific time, date, and place for his removal proceedings. See Brief for Respond- ent 48. That contention rests on the misguided premise that the time-and-place information specified in the notice to appear must be etched in stone. That is incorrect. As noted above, §1229(a)(2) expressly vests the Government with power to change the time or place of a noncitizen’s removal proceedings so long as it provides “written notice . . . specifying . . . the new time or place of the proceedings” and the consequences of failing to appear. See §1229(a)(2); Tr. of Oral Arg. 16–19. Nothing in our decision today inhibits the Government’s ability to exercise that statu- tory authority after it has served a notice to appear specify- ing the time and place of the removal proceedings.
The dissent raises a similar practical concern, which is similarly misplaced. The dissent worries that requiring
Cite as: 585 U. S. ____ (2018) 19
Opinion of the Court
the Government to specify the time and place of removal proceedings, while allowing the Government to change that information, might encourage DHS to provide “arbi- trary dates and times that are likely to confuse and con- found all who receive them.” Post, at 8. The dissent’s argument wrongly assumes that the Government is ut- terly incapable of specifying an accurate date and time on a notice to appear and will instead engage in “arbitrary” behavior. See ibid. The Court does not embrace those unsupported assumptions. As the Government concedes, “a scheduling system previously enabled DHS and the immigration court to coordinate in setting hearing dates in some cases.” Brief for Respondent 50, n. 15; Brief for National Immigrant Justice Center as Amicus Curiae 30– 31. Given today’s advanced software capabilities, it is hard to imagine why DHS and immigration courts could not again work together to schedule hearings before send- ing notices to appear.
Finally, the dissent’s related contention that including a changeable date would “mislead” and “prejudice” nonciti- zens is unfounded. Post, at 8. As already explained, if the Government changes the date of the removal proceedings, it must provide written notice to the noncitizen, §1229(a)(2). This notice requirement mitigates any poten- tial confusion that may arise from altering the hearing date. In reality, it is the dissent’s interpretation of the statute that would “confuse and confound” noncitizens,post, at 8, by authorizing the Government to serve notices that lack any information about the time and place of the removal proceedings.
E
In a last ditch effort to salvage its atextual interpreta- tion, the Government invokes the alleged purpose and legislative history of the stop-time rule. Brief for Re- spondent 37–40. Even for those who consider statutory
20 PEREIRA v. SESSIONS Opinion of the Court
purpose and legislative history, however, neither supports the Government’s atextual position that Congress intended the stop-time rule to apply when a noncitizen has been deprived notice of the time and place of his removal pro- ceedings. By the Government’s own account, Congress enacted the stop-time rule to prevent noncitizens from exploiting administrative delays to “buy time” during which they accumulate periods of continuous presence.Id., at 37–38 (citing H. R. Rep. No. 104–469, pt. 1, p. 122 (1996)). Requiring the Government to furnish time-and- place information in a notice to appear, however, is en- tirely consistent with that objective because, once a proper notice to appear is served, the stop-time rule is triggered, and a noncitizen would be unable to manipulate or delay removal proceedings to “buy time.” At the end of the day, given the clarity of the plain language, we “apply the statute as it is written.” Burrage, 571 U. S., at 218.
IV
For the foregoing reasons, the judgment of the Court of Appeals for the First Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
KEY QUOTE FROM JUSTICE KENNEDY’S CONCURRING OPINION:
In according Chevron deference to the BIA’s interpreta- tion, some Courts of Appeals engaged in cursory analysis of the questions whether, applying the ordinary tools of statutory construction, Congress’ intent could be dis- cerned, 467 U. S., at 843, n. 9, and whether the BIA’s interpretation was reasonable, id., at 845. In Urbina v.Holder, for example, the court stated, without any further elaboration, that “we agree with the BIA that the relevant statutory provision is ambiguous.” 745 F. 3d, at 740. It then deemed reasonable the BIA’s interpretation of the statute, “for the reasons the BIA gave in that case.” Ibid. This analysis suggests an abdication of the Judiciary’s proper role in interpreting federal statutes.
The type of reflexive deference exhibited in some of these cases is troubling. And when deference is applied to other questions of statutory interpretation, such as an agency’s interpretation of the statutory provisions that concern the scope of its own authority, it is more troubling still. See Arlington v. FCC, 569 U. S. 290, 327 (2013) (ROBERTS, C. J., dissenting) (“We do not leave it to the agency to decide when it is in charge”). Given the con- cerns raised by some Members of this Court, see, e.g., id.,at 312–328; Michigan v. EPA, 576 U. S. ___, ___ (2015) (THOMAS, J., concurring); Gutierrez-Brizuela v. Lynch, 834
Cite as: 585 U. S. ____ (2018) 3
KENNEDY, J., concurring
F. 3d 1142, 1149–1158 (CA10 2016) (Gorsuch, J., concur- ring), it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevronand how courts have implemented that decision. The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary. See, e.g.,Arlington, supra, at 312–316 (ROBERTS, C. J., dissenting).
*************************************
I filed an Amicus Brief, with the assistance of Eric Citron, Goldstein & Russell, of in behalf of Mr. Pereira.
In invalidates hundreds of thousands of defective Notices to Appear, thus potentially requiring massive “restarts” in an already out of control system.
Even with a more or less hand-picked Supreme Court, immigration reactionaries continue to lose case after case. So, it isn’t “liberal judges.” It’s inane, biased policies and lousy lawyering at the DOJ and DHS which goes back through the Obama and Bush II Administrations. It’s just reached its lowest conceivable level under Sessions. But, I’ll admit that every time I think Sessions can’t sink any lower on the legal and moral scale, he surprises me.
It makes tens of thousands of additional individuals who have now been here for 10 or more years eligible to apply for “Non-LPR Cancellation of Removal” because the “stop time rule” was not properly invoked by the service of the defective NTA in their cases. This could pour tens of thousands of Motions to Reopen and/or Reconsider into an already overwhelmed system.
Virtually every individual from El Salvador, Haiti, and Honduras whose TPS is going to be (bone-headedly) terminated by the Trumpsters will now be able to demand full hearings on Cancellation of Removal in U.S. Immigration Court. Thus, they aren’t going anywhere any time soon.
It illustrates the problems of giving improper “Chevron Deference” to a BIA that no longer functions as an expert tribunal and does not exercise independent judgement. Ever since the “Ashcroft Purge” the BIA has been an “inbred body” specifically structured and staffed to be a “shill” for DHS and the Administration’s enforcement policies. And, under Sessions, the BIA has been completely co-opted by his unethical and highly improper interference in what little was left of its independent decision-making function. “Justice” in today’s Immigration Courts is a total sham!
Chevron, as I have stated many times to my law school class, is a cowardly exercise of “judicial task avoidance” by the Supremes. Congress should eliminate it if the Supremes don’t. Article III Judges should be required to do their Constitutional duties, earn their pay, and decide legal issues de novo, even when that might be controversial, unpopular, or require more critical, analytical thinking than they care to do.
The Pereira debacle is entirely the fault of a totally screwed up and incompetent Executive Immigration function stretching back for nearly two decades. Fixing this problem properly should have been a “no brainer.” The “technology” (which probably could have been developed by a middle schooler sitting in her basement) was there more than a decade ago. But “haste makes waste” corner cutting combined with the assurance that the emasculated and enfeebled BIA would intentionally misread the plain meaning of the statute to screw the respondent and help the DHS produced a totally avoidable administrative nightmare.
“You ain’t seen nothin’ yet.” With White Nationalist xenophobe Sessions demanding that Immigration Judges deny, deny, deny, without hearings if necessary, to achieve their quota of removals without the inconvenience of Due Process and impartiality, cases are going to come rocketing back from the Courts of Appeals by the truckload. The whole system is going to collapse. And don’t anyone let the corrupt and biased Sessions get away with fobbing the blame off on others, as he and the rest of the Trump Regime are wont to do.
Sessions, Trump, Miller, Nielsen, Kelly, Homan and the rest of the scofflaw, White Nationalist, anti-Constitutional crowd might think that the Constitution doesn’t mean what it says. But, foreign nationals in the United States are entitled to fairness and due process. No matter how many corners the Trumpsters cut and how much bias they institutionalize into the already compromised Immigration Courts, they aren’t going to be able to eliminate Due Process.
We need a legitimate, independent, impartial, unbiased, Sessions-free, Due Process focused U.S. Immigration Court. Until that happens, the entire immigration justice system will continue to spiral downward under the immorality and toxic incompetence of Sessions and his cronies.
Many thanks to the amazing Eric F. Citron, Partner, and his team at GOLDSTEIN & RUSSELL P.C., Bethesda, MD for making this possible! More members of the New Due Process Army!
Eric is a former Supreme Court Law Clerk. No way I could have done this without him and his great colleagues! It’s very gratifying that the “best and the brightest” in the legal community, like Eric, are coming to the aid of WESCLEY FONSECA PEREIRA and others like him. Too often in the past, part of the Government’s litigation strategy has been to create a “mismatch” between the Solicitor General’s Office and the attorneys representing migrants, who often aren’t Supreme Court “regulars.” Brilliant, committed lawyers like Eric are “leveling the playing field.” Thanks again, Eric, for all that you and your “Terrific Team” do! And, many, many thanks to GOLDSTEIN & RUSSELL P.C. for making it possible for Eric to participate in this critically important case!
