Supreme Court Decides Case on Removal of ‘Resident Aliens’ from the Country

WASHINGTON, DC – Justices Brett Kavanaugh and Neil Gorsuch’s questions during oral argument in an immigration case during Kavanaugh’s first week suggested a shift in how the Supreme Court will tackle that contentious issue, focusing more on following what Congress wrote than challenging lawmakers’ policy judgment.

The U.S. Supreme Court held, on Thursday, the way immigration law currently is written, whether an alien is eligible to be spared deportation depends on if authorities gave him a single document with certain information starting the deportation process, versus spreading that information across multiple documents.

According to U.S. immigration law, “resident aliens” ordered removed from the country can legally remain by establishing continued residence for at least ten years. This case turned on the question: at what point does the clock stop, so to speak, on the period of residence?

The stop-time rule was established by congressional statute in 2004. This rule provides that the period of continuous presence “shall be deemed to end when the alien is served a notice to appear” in a removal proceeding.

The Supreme Court delivered a 6-3 decision in this case. Justice Neil Gorsuch wrote the opinion of the Court, joined by Justices Clarence Thomas, Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Amy Coney Barrett.

Justice Brett Kavanaugh filed the dissenting opinion, joined by Chief Justice John Roberts and Justice Samuel Alito.

According to Gorsuch’s opinion, the crux of the case and the reason the Court agreed to hear it was the government’s practice of issuing documents labeled “notices to appear” that failed to include the time and place for the alien’s removal hearing.

Gorsuch wrote that a written notice to appear must specify “the nature of the proceedings against the alien, the legal authority for the proceedings, the charges against the alien, the fact that the alien may be represented by counsel, the time and place at which the proceedings will be held, and the consequences of failing to appear.”

In this case, the government sent Mr. Niz-Chavez one document containing the charges against him. Then, two months later, it sent a second document with the time and place of his hearing. The initial document, therefore, would be deemed incomplete and could not trigger the stop-time rule.

Gorsuch writes, “To trigger the stop-time rule, the government must serve ‘a’ notice containing all the information Congress has specified … not a mishmash of pieces with some assembly required.”

The matter hinges on the use of the designation “a.” The government and the dissenting Justices maintain, “[t]he indefinite article ‘a’ is often used to refer to something that may be provided in more than one installment.”

Gorsuch points out, “All of which suggests that the government must issue a single statutorily compliant document to trigger the stop-time rule.”

In conclusion, Gorsuch states, “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 appear’ to require a single notice—rather than 2 or 20 documents—does just that.”

Justice Kavanaugh writes in the dissenting opinion that notice delivered in two installments can readily satisfy all the requirements of a notice to appear.

He reiterates that the government served notice, including all required information, before the non-citizen’s period of residency reached ten years, thus: “Because he received written notice to appear before he had accumulated 10 years of continuous physical presence, he is not eligible for cancellation of removal. I respectfully dissent.”

The case is Niv-Chavez v. Garland, No. 19-863 in the Supreme Court of the United States.


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