Campos-Chaves v. GarlandCampos-Chaves v. Garland
(Slip Opinion)
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CAMPOS-CHAVES v. GARLAND, ATTORNEY GENERAL
No. 22-674. Argued January 8, 2024-Decided June 14, 2024*
To initiate the removal of an alien from the United States who is either “inadmissible” under
In these consolidated cases (one from the Fifth Circuit, and two from the Ninth), aliens Esmelis Campos-Chaves, Varinder Singh, and Raul Daniel Mendez-Colin, each moved to rescind his in absentia order of removal on the ground that he did not receive proper notice of the removal hearing. In each case, the Government provided an initial NTA, but the NTA did not specify the time and place of the removal hearing. Eventually, the Government provided each alien with a notice of hearing under
Held: Because each of the aliens in this case received a proper
(a) These cases turn on whether Campos-Chaves, Singh, and Mendez-Colin can “demonstrat[e]” that they “did not receive notice in accordance with paragraph (1) or (2) of section 1229(a).”
(b) The Government‘s provision of a single notice under either paragraph (1) or (2) defeats rescission under
(c) In
(d) Campos-Chaves, Singh, and Mendez-Colin all received “notice in accordance with paragraph (1) or (2)” for the hearings they missed, and thus their in absentia removal orders may not be rescinded on that ground. The Government concedes that none of them received a compliant NTA. Each did, however, receive a “notice in accordance with paragraph . . . (2),” and each notice met all of the requirements for a notice under that provision. After receiving a defective NTA, each alien received a notice that provided a specific time and place for their removal proceedings. Those notices provided “new” times, and thereby “change[d]” the time and place of their removal proceedings, within the meaning of
No. 22-674, 54 F. 4th 314, affirmed; No. 22-884, 24 F. 4th 1315, reversed (Mendez-Colin) and vacated and remanded (Singh).
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, KAVANAUGH, and BARRETT, JJ., joined. JACKSON, J., filed a dissenting opinion, in which SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined.
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
Nos. 22-674 and 22-884
MORIS ESMELIS CAMPOS-CHAVES, PETITIONER
22-674 v.
MERRICK B. GARLAND, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
MERRICK B. GARLAND, ATTORNEY GENERAL, PETITIONER
22-884 v.
VARINDER SINGH
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[June 14, 2024]
JUSTICE ALITO delivered the opinion of the Court.
When the Government seeks to remove an alien, it is required to notify the alien of the time and place of the removal hearings. Title
We granted certiorari in these cases to consider what it means to “demonstrat[e] that the alien did not receive notice in accordance with paragraph (1) or (2).”
I
A
The Immigration and Nationality Act (INA),
That “written notice” can take one of two forms. First, under paragraph (1) of
Aliens who receive such written notice are expected to attend their hearings. Section
There are three scenarios in which an in absentia removal order may be rescinded. First, the alien can file a motion to reopen within 180 days of the order, and must demonstrate that the failure to appear was because of “exceptional circumstances.”
B
We consolidated three cases brought by aliens who moved for rescission on the ground that they did not receive proper notice. Though the facts vary, the key details are the same in each case. The Government failed to provide a single-document NTA, but eventually provided each alien with a notice specifying the time and place of the removal hearing. When each alien failed to show up for the hearing, an Immigration Judge entered an in absentia order of removal. Each alien then sought rescission of that order under
1
Moris Esmelis Campos-Chaves is the petitioner from the Fifth Circuit. He is a native and citizen of El Salvador, and he entered the United States in 2005 without inspection near Laredo, Texas. Three days later, the Government initiated removal proceedings by serving an NTA, charging that he was removable under
Campos-Chaves never appeared. The Immigration Judge noted his absence and the lack of any explanation for it. Upon finding that “clear, convincing, and unequivocal” evidence established Campos-Chaves‘s removability, the Immigration Judge ordered him removed in absentia. App. to Pet. for Cert. in No. 22-674, p. 16a.
Thirteen years later, Campos-Chaves filed a motion to reopen his removal proceedings on the theory that he never received a proper NTA. He relied on our decision in Pereira v. Sessions, 585 U. S. 198 (2018), in which we held that “[a] putative notice to appear that fails to designate the specific time or place” of the removal proceedings “is not a ‘notice to appear under section 1229(a).‘” Id., at 208-209
Campos-Chaves filed a petition for review in the Fifth Circuit. After withdrawing and amending one opinion, the Fifth Circuit denied his petition, relying on the fact that Campos-Chaves “d[id] not dispute that he . . . received the subsequent [notice].” 54 F. 4th 314, 315 (2022).
2
Varinder Singh is one of the two respondents from the Ninth Circuit. He is a native and citizen of India who entered the United States in 2016 by climbing over a fence near Calexico, California. Several weeks later, the Government served an NTA that charged Singh as removable under
When that date arrived, Singh failed to appear. Because the Government did not have his file, however, the immigration court rescheduled the hearing for December 12, 2018, at 9 a.m., again sending a notice to Singh‘s address. Singh failed to appear at that hearing as well. The Immigration Judge determined that Singh was removable, and accordingly entered an in absentia order of removal.
In April 2019, Singh sought to rescind his removal order. Like Campos-Chaves, Singh argued that rescission was warranted because he did not receive a proper NTA under Pereira. The Immigration Judge and the BIA disagreed, so Singh petitioned for review by the Ninth Circuit.
The Ninth Circuit granted his petition. 24 F. 4th 1315, 1317 (2022). The panel held that the lack of a single-document NTA alone rendered Singh‘s in absentia removal order rescindable. Id., at 1319-1320. The Government‘s petition for rehearing en banc was denied. 51 F. 4th 371 (2022). Judge Collins, joined by 11 other judges, dissented. Id., at 371-382.
3
Raul Daniel Mendez-Colin, a native and citizen of Mexico, is the other respondent from the Ninth Circuit. He attempted to enter the United States in 2001 at San Luis, Arizona, with two other aliens, falsely claiming that he was a United States citizen. The next day, he was served an NTA, which charged him with removability under
Soon thereafter, the immigration court mailed Mendez-Colin a notice of hearing, with a specific date and time for a hearing later that year. Mendez-Colin appeared at that hearing. The immigration court ultimately scheduled multiple additional hearings to take place in 2002. For each, the Immigration Judge provided a notice of hearing to either Mendez-Colin or his attorney, who attended all of the 2002 hearings.
The Immigration Judge sustained the charge of removability at the last of those
Days before the September 15 hearing, Mendez-Colin‘s attorney filed a motion to withdraw as counsel because of his client‘s “fail[ure] to maintain contact.” Record in No. 20-71846 (CA9), ECF Doc. 9-2, p. 77. Nonetheless, the attorney attended the September 15 hearing, where the Immigration Judge granted the motion to withdraw but retained the attorney for “the limited purpose of serv[ing any] in absentia order.” Id., at 155. The Immigration Judge determined that Mendez-Colin “abandoned any and all claim(s) for relief from removal” and ordered him removed in absentia. Id., at 156.
Mendez-Colin filed two motions to reopen his removal proceedings in December 2003 and February 2004, respectively. The Immigration Judge denied both. Mendez-Colin appealed the denial of his second motion to reopen, but the BIA considered the appeal withdrawn when he was removed from the United States during its pendency.
About 15 years later, Mendez-Colin moved to reinstate his appeal, now claiming that his in absentia order of removal was rescindable because of his defective NTA. The BIA denied the motion, prompting Mendez-Colin to file a petition for review, which was heard by the same Ninth Circuit panel that heard Singh. 2022 WL 342959 (2022). The panel granted the petition in an unpublished opinion, ibid., and the full court denied the Government‘s en banc petition alongside the en banc petition in Singh. 50 F. 4th 942, 946 (2022).
II
We granted certiorari in all three cases to decide whether an alien can seek rescission of an in absentia removal order indefinitely whenever the Government fails to provide a single-document NTA. The Government concedes that, in all three cases, the NTAs lacked a specific time and date and thus failed to comply with
The Government reads
Campos-Chaves, Singh, and Mendez-Colin read the statute differently and urge a distributive reading of the “or” in
A
As always, we start with the text. Bartenwerfer v. Buckley, 598 U. S. 69, 74 (2023). And here, the text provides that to be eligible for rescission of his in absentia removal order an alien must “demonstrat[e] that the alien did not receive notice in accordance with paragraph (1) or (2) of section 1229(a).”
Of course, “statutory context can overcome the ordinary, disjunctive meaning of ‘or.‘” Encino Motorcars, 584 U. S., at 87; see also Pulsifer v. United States, 601 U. S. 124, 151 (2024) (“[C]onjunctions are versatile words, which can work differently depending on context“). But statutory context points in the same direction as the usual meaning here. Consider
“Any alien who, after written notice required under paragraph (1) or (2) of [§1229(a)] has been provided to the alien or the alien‘s counsel of record, does not attend a proceeding under this section, shall be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable.”
Just as in subparagraph (C), subparagraph (A) refers to “paragraph (1) or (2)” notice. In subparagraph (A), however, the “or” is unambiguously disjunctive; there is no way to distribute language across the “or” that can provide an alternative meaning of the statute. On any reading, subparagraph (A) does not require both paragraphs (1) and (2) notice before an alien can be removed in absentia. It requires only one.
Furthermore, subparagraph (A) requires the Government to establish that it provided “the written notice.”
Indeed, concluding otherwise would create a mismatch in the statutory scheme. Under the aliens’ theory, it is more difficult for the Government to defend an in absentia removal order than it is to obtain one in the first place. An alien can be removed in absentia on the basis of receiving one notice, but the aliens would read
Opinion of the Court
B
Our conclusion that a single notice defeats rescission under
Section
Now turn back to
This reading aligns with common sense. See Pontiac GMC, Inc. v. Nigh” cite=“543 U.S. 50” pinpoint=“63” court=“U.S.” date=“2004“>Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U. S. 50, 63 (2004) (“‘[T]here is no canon against using common sense in construing laws as saying what they obviously mean‘” (quoting Roschen v. Ward, 279 U. S. 337, 339 (1929))). The Government does not argue that either a paragraph (1) or a paragraph (2) notice is always sufficient regardless of which corresponds to the hearing the alien
The only way to make sense of
C
Finally, we must decide whether Campos-Chaves, Singh, and Mendez-Colin received “notice in accordance with paragraph (1) or (2)” for the hearings they missed. We hold that they did, and that their in absentia removal orders thus may not be rescinded on that ground.
The Government concedes—as it must under Pereira and Niz-Chavez—that none of the aliens received an NTA compliant with
They each did. Paragraph (2) provides that, “in the case of any change or postponement in the time and place” of removal proceedings, “a written notice shall be given” to the alien that includes “the new time or place of the proceedings” and the consequences of “failing to attend such proceedings.”
The aliens argue otherwise, focusing on the requirement that paragraph (2) notice
We reject both textual arguments. The aliens take too narrow a reading of the term “change.” In their telling, “change” means “substitution,” and substitution presupposes that there was a date before. See Brief for Petitioner Campos-Chaves 16-17. But to “change” can also mean “to replace with another or others of the same kind or class,” “to switch to another,” to “alter,” or to “modify.” Webster‘s Third New International Dictionary 373-374 (1986). What happened here fits under any of those definitions. The notice of hearing Campos-Chaves received “changed“—that is, “replaced,” “switched,” or “substituted“—a “date to be set” and a “time to be set” to “Sep 20, 2005,” and “9:00 A.M.,” respectively. App. 50. The notice of hearing Singh received “changed” the “TBD” in his NTA to “Dec. 12, 2018,” and “9:00 A.M.” Id., at 1. And the notice of hearing Mendez-Colin received “changed“—that is, “altered” or “modified“—the time and place of his proceedings by adding a hearing on September 15, 2003, at 9 a.m. The aliens’ cramped reading of “change” is out of place here, especially given that the statute refers to “any change.”
The aliens’ argument that a “new” time or place requires an “old” time or place fares no better. In fact, it runs against how that word is ordinarily used. No one thinks that congratulating a couple on having a “new” baby implies that the couple is replacing an “old” baby. The word “new” describes something that has “originated or occurred lately,” Webster‘s Third New International Dictionary, at 1522, or is “novel,” ibid. The times provided by the aliens’ notices of hearing were all those things. The first occasion on which Campos-Chaves, Singh, and Mendez-Colin were informed of the time of the particular hearing was when they received their hearing notices. Nonetheless, they failed to show up at those hearings, and in their absence they were ordered removed. They received a “notice in accordance with” paragraph (2), and thus cannot seek rescission under
Finally, the aliens argue that we have already decided that a paragraph (2) notice requires that the alien has received an adequate NTA. They point to our statement in Pereira that “paragraph (2) presumes that the Government has already served [an NTA] that specified a time and place” because “[o]therwise, there would be no time or place to ‘change or postpon[e].‘” 585 U. S., at 210 (quoting
We did not reach out to decide today‘s question in that case. The meaning of
Today‘s decision does not mean that the Government is free of its obligation to provide an NTA. That document has an important place within the statutory scheme because it contains information that aliens may need to present their case, including the conduct for which they are charged and the provisions of law they allegedly violated. See
*
*
*
We affirm the judgment of the Fifth Circuit and reverse the Ninth Circuit‘s judgment in Garland v. Mendez-Colin.
We vacate the Ninth Circuit‘s judgment in Garland v. Singh, and remand that case for further proceedings consistent with this opinion.2
It is so ordered.
JUSTICE JACKSON, with whom JUSTICE SOTOMAYOR, JUSTICE KAGAN, and JUSTICE GORSUCH join, dissenting.
Although Congress allows the Government to seek removal of noncitizens in absentia, it tempers that power with process. Mandatory removal of a noncitizen who fails to attend a scheduled removal hearing is available.
For years, the Government has failed to ensure that one form of required notice—a “notice to appear” (hereinafter NTA)—contains all the information the statute mandates. See
Today‘s cases arise because the Government persisted with its practice of issuing facially defective NTAs in the wake of our two prior pronouncements. But, apparently, the third time is the charm, for the majority now finally blesses the Government‘s abject noncompliance with the statute‘s unequivocal command. The Court concludes that a noncitizen whose NTA does not contain the time-and-date information that
I
Because a noncitizen may seek rescission only if he “demonstrates that [he] did not receive notice in accordance with paragraph (1) or (2) of section 1229(a),”
A
To understand why, one must first be clear-eyed about the Government‘s arguments, and also the majority‘s assertions. No one disputes that
Paragraph (1) states that “written notice (in this section referred to as a ‘notice to appear‘) shall be given in person . . . or, if personal service is not practicable, through service by mail.”
Paragraph (2) also requires the Government to provide “a written notice” to removable noncitizens under specified circumstances.
So far, so good. Everyone agrees up to this point. The dispute here arises because the Government insists that its chronic failure to provide complete NTAs under
Consider the cases before us. As the majority has explained, ante, at 3–4, each of the noncitizens here received a statutorily deficient NTA—deficient because it was missing the time and date of a removal proceeding. The NTAs the Government provided instead stated that information as either “TBD” or “to be set.” App. 10–12, 44–46, 53–54. Both the majority and the Government acknowledge that such notices were deficient under the statute. See ante, at 13; Brief for Attorney General 26. Each of the noncitizens later received one or more followup documents that provided time-and-date information for a removal hearing. Each of the noncitizens ultimately failed to attend a hearing noticed by such a followup document and was ordered removed in absentia. And each of the noncitizens then sought to have his in absentia removal order rescinded on grounds of deficient notice.
According to the Government, having received notice of the time and date of their removal hearings through a subsequent notice issued per paragraph (2), these noncitizens cannot show that they “did not receive notice in accordance with paragraph (1) or (2) of section 1229(a).”
The majority agrees with this reading of the statute, making three analytical moves to justify its conclusion. One: It declares that, for purposes of
As I explain in Parts I–B and I–C, infra, the primary problem with the majority‘s statutory analysis is that it unjustifiably cleaves the paragraph (2) notice from paragraph (1)‘s NTA requirement. In the majority‘s view, the Government can provide the statutorily required notice if it issues either form of notice to a noncitizen, so long as the notice the Government provided and the noncitizen received corresponds with the hearing the noncitizen missed. See ante, at 8–12. But this maneuver misreads the plain text of the statute in at least two critical respects: It ignores the fact that the statute Congress wrote makes an NTA issued under paragraph (1) indispensable, and, relatedly, it disregards the obviously supporting and secondary role that paragraph (2) notices play with respect to this statutory scheme.
B
The text of
Paragraph (1) unequivocally states that “[i]n removal proceedings under
Furthermore, as I mentioned previously, a paragraph (1) NTA must contain certain
To be sure, two pieces of information that Congress has mandated be provided in an NTA—the time and place of a removal proceeding,
The indispensability of a complete NTA issued under paragraph (1) has consequences for the reasoning the majority puts forward here. It means that providing this particular form of notice always and inevitably “matters” to the in absentia removal process, notwithstanding the majority‘s effort to hide that ball by directing our attention to whichever notice “informed the alien of the time and date of the hearing the alien missed, and at which he was ordered removed” as if that is the notice that counts under the statute. Ante, at 12.
Put another way, whatever “notice in accordance with paragraph (1) or (2)” might mean in
C
The majority‘s reasoning further suggests that the indispensability of an NTA per the statute is essentially irrelevant because, for rescission purposes, an incomplete NTA can be cured with a paragraph (2) notice, standing alone. By its nature, however, a paragraph (2) notice cannot stand alone. This is apparent on the face of the relevant statutory provisions, which plainly establish, as the Ninth Circuit held, that “there can be no valid notice under paragraph (2) without valid notice under paragraph (1).” 24 F. 4th 1315, 1319 (2022) (case below). Given this, even if we read
1
Analogizing to another common situation: A paragraph (2) notice is the functional equivalent of a change order. See 1A P. Bruner & P. O‘Connor, Construction
The analogy to change orders in the construction context illuminates the unavoidably interconnected relationship between a compliant NTA issued under paragraph (1) and the notice the Government must provide under paragraph (2). Ask any homebuilder. A customer who wants a new den, for example, submits a written request to the builder that specifies the details of her order—e.g., construct a 12- by 12-foot room with two 48-inch fixed picture windows at a designated spot on the back of her house. Those are the indispensable terms of the mandate. But, if the customer later changes her mind about some aspect of this project—say, she wants the windows moved, or she wants the room enlarged to 16 by 16 feet—she submits a written change order notifying the builder of those particular alterations. The change order supplements the original request; it does not entirely supplant it. And the change order supersedes only the particular terms of the initial directive that have been changed. Consequently, the change order is only cognizable in relation to what came before.
So it is here. As the majority concedes, Congress has mandated that the Government, first, provide noncitizens with a written NTA that specifically and comprehensively lists the terms of the removal proceeding mandate. That notice has to include the time and place of the noticed removal proceeding.
2
Setting aside analogous circumstances and using a dictionary to bear down on the words Congress used in
Homing in on the word “change,” the majority first accuses the noncitizens of “tak[ing] too narrow a reading of th[at] term,” since “change” can mean simply “‘to replace,‘” “‘to switch,‘” “‘to alter,’ or to ‘modify.‘” Ante, at 14. As further support for this broad interpretation of change, the majority points to
But the modifier “any” does not justify the majority‘s overbroad reading of “change or postponement” in
In any event, the majority does not, and cannot, dispute that an ordinary meaning of “change” is “the action of replacing something with something else of the same kind or with something that serves as a substitute.” Webster‘s Third New International Dictionary 374 (1993). The notice provisions at issue here reflect that kind of substitution on their face, because
In short, use of the word “change” in the context of a statute that first requires something—e.g., the setting of a time and place—presumes the earlier existence of that thing to be swapped out. The ordinary meaning of “postponement,” too, requires the previous selection of a particular date or time. See Webster‘s Third New International Dictionary, at 1773 (defining “postpone” as “to hold back to a later time“). And the word “new” runs in the same circles. “New” can mean “other than the former or old.” Id., at 1522. So a “new” time likewise implies the earlier existence of an “old” time.
Thus, dictionary definitions indicate that in order for a notice issued under paragraph (2) to “change” the time or place of a proceeding to a “new” time or place, there must have been an old time or place to begin with. If the NTA did not comply with the statute in this way, then it is impossible for paragraph (2) notice to comply, either.
3
Even so, definitions alone often “do not equip us to resolve” a case. Kucana v. Holder, 558 U. S. 233, 245 (2010). We have long understood that words with “‘many dictionary definitions . . . must draw [their] meaning[s] from context.‘” Ibid. (quoting Ardestani v. INS, 502 U. S. 129, 135 (1991)). “[S]tatutes must be read as a whole,” and, here, notice under paragraph (2) “does not exist in a vacuum.” Guam v. United States, 593 U. S. 310, 316 (2021) (internal quotation marks omitted).
That brings me back to where I started with the observation that, when read in context, paragraph (2) requires a preceding written notice (like a standard change order does) and thus presupposes a compliant NTA. Not to belabor the point, but it bears noting that all the relevant context clues support this reading of the statute.
For example, notice under paragraph (2) follows the required NTA under paragraph (1) in the text of the statute. See
The majority errs in interpreting “notice in accordance with paragraph (1) or (2),”
It is clear on the face of this statute, then, that a paragraph (2) notice merely alters information that Congress has required be given previously, and, “especially when properly read in sequence as integral parts of a whole,” the statute plainly “anticipates a predicate” NTA that complies with Congress‘s mandate. Guam, 593 U. S., at 317 (internal quotation marks omitted). As its “text and place within [the] comprehensive statutory scheme” show, id., at 320, a notice under paragraph (2) cannot exist in the absence of a compliant NTA. The statute simply does not contemplate it.
II
Our precedents in Pereira and Niz-Chavez addressed the relevant notice provisions and what they require of the Government, yet the majority barely pauses to acknowledge this. Both Pereira and Niz-Chavez concerned noncitizens’ eligibility for a form of discretionary relief called cancellation of removal and the operation of the so-called stop-time rule. See
In Pereira, we held that “[a] notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under section
In both of those cases, we interpreted the notice regime just as the noncitizens do here. As the majority acknowledges, ante, at 15, we specifically observed in Pereira that, “[b]y allowing for a ‘change or postponement’ of the proceedings to a ‘new time or place,’ paragraph (2) presumes that the Government has already served a ‘notice to appear un- der section 1229(a)’ that specified a time and place as required by
In Niz-Chavez, we doubled down. We recognized that “Congress expressly contemplated [the] possibility” that the Government would “issu[e] notices to appear with all the information
Our statements in Pereira and Niz-Chavez demonstrate that the Court twice before thought obvious the reading of the statute the noncitizens here propose. Yet the majority now cries dicta. The Court says the meaning of
The argument the majority accepts today brushes aside what we said in Pereira without explaining why our statements—which are due a modicum of respect in any event, see Cohens v. Virginia, 6 Wheat. 264, 399 (1821)—were mistaken. Addressing Niz-Chavez in only a footnote, the majority maintains that our observation that paragraph (2) notices allow the Government to change a “chosen time and place in the NTA . . . remains true even if there are other instances in which paragraph (2) notices may issue.” Ante, at 16, n. 1. But that assertion simply fails to engage with the antecedent
And, in the end, we were not wrong. Under the uncomplicated statutory reading that Pereira and Niz-Chavez endorsed, the noncitizens here are not precluded from seeking rescission of their in absentia removal orders, because
III
One final flaw bears mentioning. By snipping the thread that connects the notices Congress required in paragraphs (1) and (2) of
A
The long and short of this critique is that reading the statute in the way the majority does fails to fully account for Congress‘s objectives when it comes to removal procedures, which have long included ensuring that noncitizens facing removal receive notice. The Government‘s statutory obligation to provide notice in the removal context has been a crucial aspect of federal immigration policy since at least the early 1950s. To this end, the Immigration and Nationality Act (INA) of 1952 specifically provided that a noncitizen must be “given a reasonable opportunity to be present at [the] proceeding” in which his deportability or removability is to be determined. §242(b), 66 Stat. 209, codified at
Notably, at that time, an immigration officer‘s decision to remove a noncitizen in absentia was discretionary.
Congress endeavored to address these kinds of problems, among other things, when it established the mandatory in absentia removal provisions that govern these cases as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996. See §304(a), 110 Stat. 3009–587 to 3009-590; see also
B
The resulting in absentia removal scheme constitutes a balancing of interests and obligations that is well within Congress‘s policy prerogatives. Congress has also clearly expressed its intent in this regard, for when paragraphs (1) and (2) of
To recap: If the Government issues, and the noncitizen receives, the statutorily required notice—i.e., the notice mandated by paragraph (1) of
Indeed, and perhaps most concerning, under the majority‘s reading of the statutory provisions at issue here, Congress‘s goals are plainly thwarted, for a noncitizen may be removed in absentia even if the Government fails to provide him with information that complies in both form and substance with Congress‘s commands. The removal scheme‘s orderly progression actually breaks down when the Government fails, in systemic fashion, to send statutorily compliant NTAs. And for years, that is exactly what has happened, because the NTAs that the Government routinely issued lacked the time, date, or place of a noncitizen‘s initial removal hearing. Brief for Attorney General 50.
Rather than just complying with
There is also no rational limiting principle. Today, the Government opts to omit from the NTA the time and date of the removal proceeding. The majority now says that‘s no problem—the Government may nevertheless seek and receive binding in absentia removal so long as the noncitizen received a paragraph (2) notice that filled in the blanks. See ante, at 10–11, 13. But what prevents the Government from removing a noncitizen whose notice to appear is deficient in other critical respects? The “next chapter in the same story,” Niz-Chavez, 593 U. S., at 159, might involve a noncitizen whose notice to appear also failed to inform her that she can be represented by counsel in removal proceedings. See
One can imagine other troubling scenarios; for example, a notice to appear that omits the charges against a noncitizen. See
The majority waves away these legitimate concerns about how far the Government can go in deviating from what
Finally, the majority says that a noncitizen who receives a noncompliant NTA followed by a paragraph (2) notice can always “attend the hearing” to protest the deficient NTA. Ibid. That is entirely beside the point. Congress put the burden on the Government to send complete NTAs to noncitizens facing removal every time it initiates a removal proceeding. Instead of requiring the Government to shoulder that burden, the majority effectively shifts it onto the noncitizens—individuals perhaps unfamiliar with this country and its laws—tasking them with the responsibility of addressing the Government‘s mistakes. That is not the statute Congress wrote.
*
*
*
When the Government issues an NTA under paragraph (1) that lacks time and date information but follows up with a notice under paragraph (2) that sets the time and date of a removal hearing that the noncitizen subsequently misses, I fully understand the instinct to conclude that the Government‘s initial lack of compliance was insignificant. Some might even think it unfair that noncitizens could seek rescission of their removal orders based on an initial notice that seems only technically defective, given the Government‘s subsequent action. My response to them is simple: Congress thought otherwise. The statute it wrote specifically establishes the what, when, and how of the notice that is due to noncitizens facing removal. The statute also allows noncitizens who have been ordered removed in absentia to seek rescission of the removal order if the required notice is not received. I can no more judge that policy decision than I can change it. Today, the Court makes the unfortunate mistake of doing both.