High Court To Review Dispute Over Faulty Deportation Notices

Law360 reported that The Supreme Court of the United States (SCOTUS) agreed to consider whether a deportation notice containing missing information can be fixed with a follow-up notice.

The high court will resolve a circuit split over whether a notice to appear (NTA) must contain all the legally required information in one document in order to trigger the so-called "stop-time rule." An NTA is a legal summons to appear in immigration court.

This stop-time rule stops the clock on time an immigrant spent in the U.S. before receiving an NTA, which can determine whether the immigrant is eligible for certain forms of deportation relief.

The issue went before the Supreme Court back in 2018, when the justices held in Pereira v. Sessions that NTAs must include the time and place of the immigration court hearing to stop the clock on an immigrant's residency. However, that ruling did not include whether a follow-up notice with that information would stop the clock.

Notice to Appear

As reported by SCOTUS Blog, the issue the high court is now deliberating in Niz-Chavez v. Barr is "Whether, to serve notice...and trigger the stop-time rule, the government must serve a specific document that includes all the information identified in Section 1229(a), or whether the government can serve that information over the course of as many documents and as much time as it chooses." The Court's decision will determine the fate of Agusto Niz-Chavez, a citizen from Guatemala with three young U.S citizen children, two with medical issues. That outcome of that case will impact thousands of other immigrants in similar positions.

The petition held in January said that "A question that arises with such frequency, and that has such dramatic implications, should not turn on the happenstance of the immigration court in which removal proceedings were brought.”

Agusto Niz-Chavez immigrated to the U.S. without authorization in 2005. The U.S. Department of Homeland Security launched removal proceedings against him in 2013. However, the deportation notice did not contain the time and place of his immigration court hearing. Instead, that information was sent two months later in a follow-up notice, according to court filings.

Niz-Chavez claimed that he might be murdered or kidnapped if he returned to Guatemala as a result of a land dispute. He lost his bid to stay in the U.S. Yet, after the Supreme Court issued its Pereira decision in 2018, he asked to revive the judgment on his immigration court proceedings. Under that ruling, he surmised that he may qualify for deportation relief.

Executive Office for Immigration Review

That deportation relief, called cancellation of removal, is available to immigrants without legal status who have lived in the U.S. for at least 10 years and whose deportation would cause hardship for their U.S. dependents.

If the notice to appear and follow-up notice were sufficient to stop the clock on Niz-Chavez's residency in 2013, he would not be eligible for deportation relief. However, if the stop-time rule was never triggered, then Niz-Chavez now had more than 10 years of accrued residency in the U.S.

The Board of Immigration Appeals (BIA), the immigration courts' appellate board, concluded that Niz-Chavez did not qualify for cancellation of removal, even under Pereira's holding that notices without the hearing information were inadequate.

In May 2019, a divided BIA ruled in a different case that a follow-up notice does cure an inadequate immigration court notice and then trigger the "stop-time rule." That landmark decision, however, caused disagreement among some board members, who wrote that the high court's Pereira decision "leaves little room for doubt" that a single document with the necessary information is required.  

Agusto Niz-Chavez appealed his case to the Sixth Circuit, which sided with the BIA by agreeing that the requirements for a notice in order to appear can be met through multiple documents. This question has caused a deep circuit split. Several courts concluded that follow-up notices don't stop the clock, whereas the Fifth and Sixth circuits have found that an NTA may consist of more than one document.

Agusto Niz-Chavez's attorney, David J. Zimmer of Goodwin Procter LLP, who also argued the Pereira case, stated that he's excited that SCOTUS agreed to take up the case and resolve the split. He said, "It's an important question, and it's one that really does impact a lot of people.”

The U.S. Department of Justice has not provided a comment on the issue as of Monday. 

The federal government is represented by Noel Francisco of the U.S. Solicitor General's Office.