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Thursday, July 11, 2024 | Back issues
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High court refuses to tighten requirements for migrant deportations

The high court’s ruling will allow the government to keep the time and place of migrants' removal hearing blank when sending out an initial deportation notice.

WASHINGTON (CN) — Three migrants who said the government skirted immigration rules by sending them removal hearing notices with incomplete information lost their Supreme Court challenge on Friday when the high court found they had adequate notice of the appearances.

In a 5-4 ruling, the court said the men should have raised issues about incomplete notices at their hearings, but because they failed to show up, they could not challenge the removal orders. 

“That gives the immigration judge a chance to reschedule the hearing to cure any prejudice from the missing information,” Justice Samuel Alito wrote for the majority, but the controlling immigration law “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.” 

Justice Ketanji Brown Jackson said the ruling endorsed the government’s practice of not providing the exact time and date of a removal hearing despite two previous decisions by the court. 

“Apparently, the third time is the charm, for the majority now finally blesses the government’s abject noncompliance with the statute’s unequivocal command,” Jackson wrote in a dissent joined by Justices Sonia Sotomayor, Elena Kagan and Neil Gorsuch. 

The men challenged the government’s deportation process, claiming its notice system violates the Immigration and Nationality Act, under which the government must provide noncitizens with a written notice of their removal proceedings. The case before the court asked if the government violated that order by sending incomplete notices. 

Moris Esmelis Campos-Chaves faces a removal order for failing to appear before an immigration judge. He claims the Department of Homeland Security violated the Immigration and Nationality Act when it left the time and place of his hearing blank. While the government did eventually, send a second notice with the details on when Campos-Chaves was supposed to appear, he claims the government should be forced to provide key information upfront. 

Campos-Chaves crossed into the U.S. in 2005 after growing up in El Salvador. While living in the U.S., Campos-Chaves married and had two children. He works as a gardener, files his income taxes every year and has no criminal history. 

The Supreme Court previously ruled on notice to appear requirements in Pereira v. Sessions in 2018. The 8-1 ruling said the time and place of the hearing had to be present on removal notices to trigger the stop-time rule used to determine how continued residence should be calculated. 

Campos-Chaves used Pereira to challenge his deportation order but an immigration judge declined his request. The Board of Immigration Appeals affirmed. 

Campos-Chaves was joined by Varinder Singh and Raul Daniel Mendez-Colin — who both experienced similar removal orders — in his challenge at the Supreme Court. 

The court concluded that noncitizens can have their absentia removal order rescinded only if they did not receive the first notice to appear order or a secondary notice specifying the time and place of the hearing. 

Alito rejected the men’s argument that the first notice had to include the time and date, finding that the text requires them to show they were never notified of the hearing time. 

“The alien’s failure to appear is excused by his failure to receive a paragraph (1) or (2) notice only if that notice would have informed the alien of the relevant hearing,” the George W. Bush appointee wrote. 

Explaining his reasoning with a hypothetical, Alito said the second notice could update noncitizens on a change to the hearing date in the first notice. If the noncitizen only did not receive the hearing update, the government could still order them removed, because the first notice included a hearing time. 

The conclusion, Alito said, is that it only matters that a noncitizen was notified of their hearing date. 

“The only way to make sense of [the statute's] reference to a single notice is for that notice to be the one that matters: the one that informed the alien of the time and date of the hearing the alien missed, and at which he was ordered removed,” Alito wrote. 

Jackson said this analysis unjustifiably cleaves the second notice from the requirement and ignores lawmakers’ intention to make the first notice indispensable and disregards the secondary role of additional notices. 

The second notice, the Joe Biden appointee said, is intended only to alter the information Congress required in the first notice. 

“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,” Jackson wrote. 

She said she understood the instinct to conclude that the discrepancy between one notice or the other was insignificant but that it wasn't up to the court to question policy decisions.

“My response to them is simple: Congress thought otherwise,” Jackson wrote. “The statute it wrote specifically establishes the what, when, and how of the notice that is due to noncitizens facing removal.” 

Follow @KelseyReichmann
Categories / Appeals, Immigration

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