No. of Recommendations: 3
We're nearing the end of the session, and that means decisions on the cool cases are coming out. One dropped today:
Campos-Chaves v. Garland. https://www.supremecourt.gov/opinions/23pdf/22-674...The background:
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 §1182(a)(6)(A)(i). The NTA provided the address of the immigration court, but told Campos-Chaves to appear on “a date to be set” and at “a time to be set.” App. 54. The Government followed up a few months later, sending Campos-Chaves a notice of hearing that set the hearing date to be September 20, 2005, at 9a.m. 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.In other words, Campos-Chaves objected to the fact that he was removed for being an illegal alien but thought he could sue based on the paperwork not being in full order. This is a combo case where the court grabbed a few similar other decisions and decided them all at once:
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 §1229(a)(1). And before this Court, each alien argues that he is eligible for rescission under §1229a(b)(5 (C)(ii). Thus, this litigation turns on whether Campos-Chaves, Singh, and Mendez-Colín can “demonstrat[e]” that they “did not receive notice in accordance with paragraph (1) or (2) of section 1229(a).” §1229a(b)(5)(C)(ii).The court ruled on a 5-4 basis: Uh, uh.
Amazing, Gorsuch voted with the liberal bloc (which amazingly always votes the same way; wonder why).
We hold that, to rescind an in absentia removal order on the ground that the alien “did not receive notice in accordance with paragraph (1) or (2),” the alien must show that he did not receive notice under either paragraph for the hearing at which the alien was absent and ordered removed. Because each of the aliens in these cases received a proper paragraph (2) notice for the hearings they missed and at which they were ordered removed, they cannot seek rescission of their in absentia removal orders on the basis of defective
notice under §1229a(b)(5)(C)(ii).Amazingly, Gorsuch joined in the dissent, which read
The dispute here arises because the Government insists that its chronic failure to provide complete NTAs under §1229(a)(1)—e.g., notices that contain time-and-date information—is of no moment with respect to any subsequent in absentia removal effort. So long as the Government provides the noncitizen with a paragraph(2) notice of the time and date of a removal hearing that the noncitizen subsequently misses, the noncitizen cannot reopen his removal proceeding, the Government claims.The problem with this is that the initial Notice To Appear is issued by the Border Patrol, which does not control the schedule of the Immigration Courts (which is in an entire other branch of government). Hence the need for 2 notifications.
The majority opinion sums it up
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 §§1229(a)(1)(A)–(E). Although an alien who receives only paragraph (2) notice must still attend the hearing or face in absentia removal, he can raise issues regarding incomplete notice at that time. That gives the immigration judge a chance to reschedule the hearing to cure any prejudice from the missing information. But §1229a(b)(5)(C)(ii) does not allow aliens to seek rescission of removal orders in perpetuity based on arguments they could have raised in a hearing that they chose to skip.Yup. Your first act as a new American was bad enough in entering the country illegally, now you want to further flip the bird at our judicial process? No thanks; there's the door.
