05/03/2021
On April 29, 2021, the U.S. Supreme Court decided Niz-Chavez v. Garland, holding that, to constitute a notice to appear sufficient to stop a nonpermanent resident alien’s continuous presence in the country under 8 U.S.C. § 1229b, the notice must be a single document containing all information about an individual’s removal hearing specified in 8 U.S.C. § 1229(a)(1).
Under U.S. immigration law, nonpermanent resident aliens who are ordered removed from the U.S. may be eligible for discretionary relief from removal if (among other requirements) they can establish their continuous presence in the U.S. for at least 10 years. But under the so called “stop-time rule” in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), an alien’s continuous presence in the country is deemed to end “when the alien is served with a notice to appear” in a removal proceeding. 8 U.S.C. § 1229b(d)(1). Congress defined a “notice to appear” as written notice specifying certain information, including the nature of the proceedings, 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.
The government sent Agusto Niz-Chavez a document containing the charges against him. Two months later, the government sent Niz-Chavez a second document with the time and place of a hearing in a removal proceeding against him. Niz-Chavez challenged the adequacy of the notice on the ground that the statute requires a single document that contains all of the required information, rather than a series of documents. The government argued that once Niz-Chavez received documents that collectively included the information required by the statute, the “stop-time” rule took effect. The Sixth Circuit agreed with the government and held that the stop-time rule was triggered when the government finished delivering all the statutorily prescribed information.
The Supreme Court reversed and held the required notice to appear must be a single document containing all statutorily required information. The Supreme Court began by noting that an ordinary reader would interpret the IIRIRA’s use of the indefinite article “a” in requiring service of “a notice” as calling for “‘a’ single document containing the required information.” The Court emphasized that a notice to appear is the basis for commencing a legal proceeding, and other case-initiating pleadings “often use the indefinite article to refer to a single document.”
The Court also concluded that the history and broader context of the IIRIRA supported requiring a single comprehensive document. For example, the IIRIRA speaks of “‘the notice’ being served at a particular ‘time,’” which suggested service of a single document at a discrete moment, as opposed to an ongoing endeavor. Further, the purposes for enacting the stop-time rule would be better effectuated by measuring the period of residence against the service date of a discrete document.
The Court rejected the government’s arguments that serving a single document with all required information was too onerous, particularly because the government was entitled to send supplemental notices amending the time and place of the hearings, and individuals seeking permanent residency were not afforded similar latitude when filling out the required forms. As the Court noted, “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.”
Justice Gorsuch delivered the opinion of the Court, in which Justices Thomas, Breyer, Sotomayor, Kagan, and Barrett joined. Justice Kavanaugh filed a dissenting opinion, in which Chief Justice Roberts and Justice Alito joined.
