Supreme Court Wrestles With Notices for Immigrant Court Hearings

The US Supreme Court seemed divided over whether the government has to give immigrants who lack legal status all the information up front about their removal proceedings before it can deport them for failing to appear in court.

Justice Neil Gorsuch joined the court’s liberal wing during arguments on Monday in skeptically questioning the government’s claim that it can give an initial notice to appear that says the time and date of the hearing are to be determined as long as it sends a second notice with that information.

“As I understand it, and my figures may not be exact, about a third of cases in immigrant proceedings are in absentia removals, so failures to appear,” Gorsuch said. “So why not issue a blank NTA because they’re hard, they’re a pain, we found them difficult, then issue a compliant notice of change, show up on a date certain, and then remove about a third of the aliens in this country without any notice of the charges against them or their right to counsel, or anything else?”

The Illegal Immigration Reform and Immigrant Responsibility Act requires the government to give a notice to appear that includes the time and date of the hearing or send a new notice if the time and place changes.

The court heard two cases that were consolidated for argument Monday with competing appellate court rulings on whether that second form of notice is sufficient if the government fails to give the time and date of the hearing in its first notice.

Justice Samuel Alito asked the government’s attorney, Assistant Solicitor General Charles McCloud, what would happen if it proceeded along the lines Gorsuch outlined and if that could be challenged.

“I think the fact that this has never happened in more than 500,000 in abstentia removals is proof that we have no incentive to do that,” McCloud said.

Instead of sending just a blank piece of paper, Justice Elena Kagan said it seemed more likely the government would just stop telling people in the NTA about their right to an attorney.

Addressing her question of whether that’s more likely to happen, McCloud said it’s important to note that the NTA is a form document that lists that information.

“It is now, but it doesn’t have to be,” Kagan said. “Maybe somebody will say ‘why are we telling people that they have this right?”

In the first of the two consolidated cases at argument, the Immigration Board and the US Court of Appeals for the Fifth Circuit refused to reopen Moris Esmelis Campos-Chaves’s case.

The government said the El Salvador native got a second notice that satisfied the law’s requirements. In the second case, the US is appealing two decisions from the Ninth Circuit in similar disputes involving citizens of India and Mexico.

The appeals court said in those cases that the subsequent notice of hearing wasn’t valid because the first notice to appear didn’t include a time and date. The court reasoned that a change in the time of the hearing isn’t possible unless the initial notice included that information.

Justice Brett Kavanaugh wanted to know what would happen to the hundreds of thousands of people who received NTAs wthout the time and date of their hearing if the court were to rule against the government. As the Ninth Circuit has interpreted this provision, McCloud said all of those people have a right to seek the rescission of their deportation order.

“As I was discussing with some members of the court earlier, at least in the Ninth Circuit and some other courts, that right is essentially automatic,” McCloud said. “We are very concerned that those hundreds of thousands of cases could be injected back into the immigration system.”

But Easha Anand, co-director of Stanford Law School’s Supreme Court Litigation Clinic, who represented Campos-Chaves and the India and Mexico citizens, argued the Ninth Circuit’s decision should be upehld.

But Alito asked Anand if she disputes that as a matter of ordinary language there can be a change from an indeterminate time and place to a determinate time and place.

Giving an analogy, Anand said that a bride who’s going to get married sends a save-the-date not a change-of-date.

The consolidated cases are Campos-Chaves v. Garland, U.S., No. 22-674, arguments 1/8/24.