Supreme Court weighs time and date requirements for migrant removal hearings

WASHINGTON (CN) — The Supreme Court joined the national conversation around immigration on Monday, weighing measures the government must take before removing migrants from the country. 

Three men who entered the country illegally are challenging the government’s compliance with laws regarding their removal. Under the Immigration and Nationality Act, the government is required to provide noncitizens with a written notice of their removal proceedings. The men argue, however, that the government has skirted this order by sending notices with incomplete information. 

Moris Esmelis Campos-Chaves crossed the Rio Grande into the U.S. in 2005. Originally from El Salvador, Campos-Chaves lives with his wife and two U.S.-born children, working as a gardener. He has filed his income taxes every year and has no criminal history. 

The Department of Homeland Security served Campos-Chaves with a notice to appear before an immigration judge, however, the order contained no date or time for when his removal proceedings would be held. Four months later, Campos-Chaves received another notice setting up a time and date for his hearing. 

Campos-Chaves failed to appear at his proceeding and the court ordered him removed from the country for his absence. 

In 2018, Campos-Chaves asked the immigration court to rescind his removal order and reopen his case, citing the court’s ruling in Pereira v. Sessions. In an 8-1 ruling, the court said a notice to appear must include the time and place of the hearing to trigger the stop-time rule used to determine how continued residence should be calculated. 

An immigration judge denied him relief and the Board of Immigration Appeals affirmed. Varinder Singh, hailing from India, and Raul Daniel Mendez-Colin’s cases follow the same path as Campos-Chaves and were reviewed together. 

Justice Sonia Sotomayor seemed to think Campos-Chaves’ case presented a similar question to the one she answered in her majority opinion in Pereira. 

“The finding in that case — since I wrote it — was that the statutory presumption commanded by Congress, who knew full well that the government was giving notices with TBAs, time and place to be announced, regularly, was contrary to that history,” the Obama appointee said. “They wanted these notices to be full and complete. That's what we held.” 

The government suggested that applying Pereira to Campos-Chaves’ case would expand the ruling, but Justice Elena Kagan said the question before the court clearly fell within the same bounds. 

“It just seemed the sort of obvious understanding of the statutory scheme,” the Obama appointee said. “So, you know, even if it's dicta, it reflected what eight people thought was pretty obvious when you looked at the statute.” 

In the government’s view, it had not violated the statute’s requirements when it supplied a second notice with a time and date. Charles McCloud, assistant to the solicitor general at the Department of Justice, cited a provision under the law that allows the government to change the hearing date. McCloud said that was all the government had done here. 

Justice Neil Gorsuch questioned if this interpretation made sense, however. Gorsuch said the government put forth a “trust us” argument, forcing the court to trust that necessary information would eventually be provided. 

“Your regulations are interesting because they suggest that a lot of things are required in a notice to appear, except stuff that the government finds inconvenient, like the hearing date,” the Trump appointee said. 

The justices questioned what other essential information could be left off these notices. Justice Elena Kagan brought up the right to counsel. There was also discussion around notices that lacked charges or completely blank documents, which Justice Amy Coney Barrett noted was the government’s biggest weakness. 

Although there was division around which solution the court should land on, the justices were all concerned about the consequences of their ruling on the matter. Gorsuch noted that nearly one-third of all removals result from hearing absences. 

“One consequence of your argument, I think, is that the NTA can be a blank document and that you can remove someone in absentia based on a notice of change that says show up on a date,” Gorsuch said. “The immigrant may or may not know that this is really the government. It's just a date to show up in some place. It doesn't have notice of charges or lawyers against him.” 

Justice Samuel Alito saw issues with ruling against the government, wondering if it would open a can of worms with hundreds of thousands of noncitizens asking to have their cases reopened. Justice Brett Kavanaugh expressed a similar concern. 

Follow @KelseyReichmann

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