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Chief Justice Roberts Key in ‘Groundhog Day’ Deportation Case

Nov. 9, 2020, 6:03 PM

Several justices seemed skeptical of going further to make it easier for longtime immigrants to stay in the U.S., but the outcome may depend on Chief Justice John Roberts.

The court on Monday heard argument in the case of a Guatemalan national seeking to take advantage of a 2018 Supreme Court ruling that made it harder to deport immigrants with strong community ties to the U.S.

The court 8-1 in Pereira v. Sessions, ended the government practice of sending notices to appear for deportation proceedings without the time and date of the hearing.

The question now in the case of Agusto Niz-Chavez, who is undocumented, is whether the Homeland Security Department can deliver the information in
follow-up documents.

It’s “Pereira Groundhog Day,” Justice Neil Gorsuch quipped.

Roberts, who has recently been the swing vote on immigration issues, suggested that Niz-Chavez’s position could lead to absurd results, but that the government could easily comply with the rule he is pressing for.

Proper notice to appear triggers the so-called “stop-time” rule, which can make longtime immigrants ineligible to cancel deportation.

Niz-Chavez, who first arrived in the U.S. in 2005 after fleeing violence in Guatemala, is the main breadwinner for his long-time partner and their three young children, all of whom are U.S. citizens and two of whom have significant health issues, his petition said.

His criminal history is limited to misdemeanor convictions for driving without a license, the petition said.

Under federal law, only immigrants who have lived continuously in the country for at least seven to 10 years are eligible for relief from deportation in a case like this. The government can stop the clock on eligibility by filing a “notice to appear.”

Up to 4,000 immigrants a year are eligible to receive “cancellation of removal” to avoid breaking up families.

Taking the Hint

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was meant to address the confusion and subsequent legal battles that resulted from receiving information in several notices as opposed to one, according to Niz-Chavez’ attorney, David J. Zimmer.

The statute says the government must provide the time and date of the hearing in “a notice to appear,” not four, said Justice Stephen Breyer following up on arguments made by Justice Sonia Sotomayor.

“I think it’s pretty clear,” Justice Elena Kagan said.

Gorsuch was very critical of the government’s position.

“I would have thought that the government would have taken the hint” following Pereira that notice to appears says what the statute says it means, he said.

On the other hand, several conservatives noted that Niz-Chavez eventually received written notice of all the information required by the statute.

“Why doesn’t that end the case?” Justice Brett Kavanaugh asked Goodwin Procter’s Zimmer.

The case may come down to Roberts, if Gorsuch joins the liberals in a decision expected by the end of June.

Zimmer conceded that the stop-time rule would be triggered if the government sent two documents including the required information in the same envelope, but not if it’s in two envelopes received the same day.

Why would Congress have wanted that “absurd result?” Roberts asked.

But Roberts also suggested that it would be easy for the government to successfully fix a defective notice to appeal by simply attaching the old notice to a subsequent one listing the hearing date.

“It doesn’t seem to me that that should be terribly administratively burdensome,” Roberts told Justice Department lawyer Anthony Yang.

The case is Niz-Chavez v. Barr, U.S., No. 19-863, argued 11/9/20.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: John Crawley at jcrawley@bloomberglaw.com

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