May 25, 2021
Niz-Chavez v. Garland, 593 U.S. ___ (2021) (Gorsuch, J.).
Response by Ana Corina “Cori” Alonso-Yoder
Geo. Wash. L. Rev. On the Docket (Oct. Term 2020)
Slip Opinion | SCOTUSblog
A Car, A Contract… Or An Indictment?
Conservatives split on the meaning of deportation documents in Niz-Chavez v. Garland
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”).1 The law built on a trend of immigration legislation that increasingly narrowed the options for unauthorized immigrants to obtain lawful status in the United States. Prior to IIRIRA, immigration judges wielded broad discretion to make judicial recommendations against the deportation of immigrants.2 By the mid-1980s, federal immigration law expanded criminal penalties, such as by criminalizing aspects of unauthorized employment.3 While these penalties primarily targeted employers of unauthorized workers, the 1986 Immigration Reform and Control Act (“IRCA”) also included certain criminal penalties for false statements made in applications for immigration status.4 In the decade following IRCA, prosecutions of employers fell sharply5 while anti-immigrant sentiment in public policy grew. In 1994, California voters passed Proposition 187, which denied unauthorized immigrants the use of state services and benefits, including children’s access to public education.6 The animus toward unauthorized immigrants collided with efforts to increase federal penalties for crimes under what came to be known as the 1994 Crime Bill.7 These anti-immigrant and tough-on-crime policies ultimately culminated in IIRIRA and its sister legislation, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).8 Reflective of a larger societal move toward criminalization of communities of color, these laws increased the kinds of crimes for which individuals would face immigration consequences.9 These laws marked a shift away from targeting the source of unauthorized immigration through employer sanctions (as typified by IRCA), to a full-scale attack on immigrant communities that singled out individual immigrants for criminal and immigration penalties. The consequences of these shifts in legislation were immediate and severe. In 1986, 1,978 individuals were deported from the United States based on criminal grounds.10 By 1996, the number jumped to 36,909 people.11
IIRIRA focused not only on expanded immigration enforcement based on criminal grounds, but also swept more broadly to heighten the requirements needed to show financial eligibility to lawfully immigrate.12 In addition, IIRIRA further narrowed eligibility for relief from deportation based on non-criminal criteria, such as requiring the existence of certain specialized family relationships or extending the minimum period of presence in the United States.13 This form of protection from deportation, called “cancellation of removal” in the 1996 legislation, extended the minimum eligibility period for presence in the United States to 10 years.14 According to the statute, this period of time would be calculated from the time of entry to the United States until “the alien is served a notice to appear.”15 This so-called stop-time rule forms the basis for the Court’s most recent immigration decision.
In late April, the Court rendered an interpretation of the stop-time rule that drew together a surprising alliance of three of its conservative, and all of its liberal justices. Delivering the 6–3 opinion in Niz-Chavez v. Garland, Justice Gorsuch ruled in favor of Agusto Niz-Chávez,16 an immigrant who faced deportation proceedings.17 In 2013, Niz-Chávez received two separate deportation documents.18 The first notice to appear specified the deportation charges alleged against him.19 The second, sent two months later, included the date and time of his removal hearing.20 Niz-Chávez relied on Pereira v. Sessions, a 2018 decision where the Court held that a notice to appear omitting certain statutorily required information fails to trigger the stop-time rule,21 and contended that the two documents did not meet IIRIRA’s requirements.22 In particular, he argued that the first notice to appear was inadequate because it did not include the “time and place” of the removal proceedings as specified in 8 U.S.C. § 1229(a)(1).23 The government conceded that the first document failed to trigger the stop-time rule but argued that the second notice perfected service, successfully triggering the stop-time rule.24
Different courts of appeals had embraced each of these divergent arguments.25 In resolving the issue in favor of the Petitioner, the Court’s majority focused its attention on one of the shortest words in the English language: “a.”26 The indefinite article in question is found in the language of § 1229(a)(1) regarding the stoppage of the 10-year eligibility clock upon service of “a notice to appear.”27 In concluding that multiple notices—or what the majority calls “notice-by-installment”—cannot square with the language of the statute, the Court applied an ordinary meaning interpretation of § 1229(a)(1).28 In a rather straightforward analysis, Justice Gorsuch stated:
To trigger the stop-time rule, the government must serve “a” notice containing all the information Congress has specified. To an ordinary reader—both in 1996 and today—“a” notice would seem to suggest just that: “a” single document containing the required information, not a mishmash of pieces with some assembly required.29
In illustrating the point, Justice Gorsuch drew an example from Pereira comparing “a notice to appear” to “a car,” observing that, “someone who agrees to buy ‘a car’ would hardly expect to receive the chassis today, wheels next week, and an engine to follow.”30 Relying on this illustration, the majority rejected the dissent’s characterization of the notice to appear as akin to a manuscript, a job application, or a contract; any one of which may consist of multiple parts despite taking the singular article “a.”31 In order to sharpen its own interpretation and to further discredit the dissent’s examples, the majority turned to other areas of federal law to compare “a notice to appear” with “an indictment, an information, or a civil complaint.”32
It’s hard to envision a more ordinary word for an ordinary meaning interpretation than the humble single character article at the heart of this decision. Indeed, much of the commentary on the case has focused on the somewhat unexpected role of this basic word in deciding the significance of one the most complex collections of U.S. law. Yet, a mere two terms back, the Court also deciphered the meaning of the indefinite article “the” in ruling against an immigrant seeking release from detention while awaiting deportation in Nielsen v. Preap.33 Such seemingly wacky interpretive exercises are all in a day’s work for the highest court in the land.
Yet, another aspect of the Preap decision is of note here. Front and center in that case were the implications of treating individuals in immigration detention like detainees in the criminal legal system.34 On behalf of the dissenting liberal justices, Justice Breyer wondered aloud the due process problem created by interpreting an immigration statute to deny bail hearings to certain immigrant detainees: “Why would Congress have granted the Secretary [of Homeland Security] such broad authority to deny bail hearings, especially when doing so would run contrary to basic American and common-law traditions?”35 This effort to liken the effects of an increasingly punitive immigration system to the criminal law system—and the latter’s much more robust procedural protections—has been a feature of immigration jurisprudence since well before the immigrant criminalization trend of the last thirty years.36 That the majority in Niz-Chavez chose to inch closer to that line in comparing the notice to appear of the immigration removal proceeding to the indictment of criminal procedure is perhaps not a surprising view to be adopted among the Court’s liberals. In fact, the indictment language in Niz-Chavez comes from the oral arguments in Pereira, a decision authored for the majority by Justice Sotomayor.37 Yet, in the Pereira decision, the Court relied on the “car” language, but did not endorse the criminal indictment comparison.38
That Justice Gorsuch, joined by Justices Barrett and Thomas, would approve an analysis advancing the immigration-criminal law nexus is another surprising turn in this unexpected result. With negotiations on the Biden administration’s immigration reform legislation apparently stalled,39 IIRIRA’s criminalization approach seems likely to remain the prevailing framework for some time. Not only does Niz-Chavez move in the direction of a slight evening of the odds between immigrants and the government in that framework, the case also suggests that the Court’s conservatives may in future decisions embrace providing greater procedural protections to immigrant respondents. Whether it’s “a” car on “an” indictment, it’s certainly not “a” contract. And for that, immigrants and their advocates are likely to share “a” collective sigh of relief.
Ana Corina “Cori” Alonso-Yoder is a Visiting Professor of Law and Director of the Federal Legislation Clinic at the Georgetown University Law Center. Professor Alonso-Yoder’s commentary on immigration law and immigrants’ rights has been featured by ABC News, The Atlantic, Washington Post, and Law360, among others.
1 See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 [hereinafter IIRIRA].
2 For example, the immigration judges could make their decision based on whether an unauthorized immigrant had “made an entry” into the United States: one who had done so would be “entitled to a deportation hearing and the greater procedural safeguards it provided,” while one who had not would be “placed in exclusion proceedings.” Charles A. Wiegand, III, Fundamentals of Immigration Law 8 (rev. 2016), https://www.justice.gov/sites/default/files/pages/attachments/2016/03/03/fundamentals_of_immigration_law_-_feb_2016.pdf. In addition to this “entry doctrine,” immigration judges were also able to carve out an exception for lawful permanent residents making “brief, casual, and innocent departure[s]” from the United States. Id. (citing Rosenberg v. Fleuti, 374 U.S. 449, 461–62 (1963)).
3 See, e.g., Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359.
4 Id. § 210(a)(7)(A).
5 See Peter Brownell, The Declining Enforcement of Employer Sanctions, Migration Pol’y Inst. (Sept. 1, 2005), https://www.migrationpolicy.org/article/declining-enforcement-employer-sanctions.
6 Press Release, ACLU, CA’s Anti-Immigrant Proposition 187 Is Voided, Ending State’s Five-Year Battle With ACLU, Rights Groups (July 29, 1999), https://www.aclu.org/press-releases/cas-anti-immigrant-proposition-187-voided-ending-states-five-year-battle-aclu-rights.
7 Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796.
8 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214.
9 See César Cuahtémoc García Hernández, Creating Crimmigration, 2013 BYU L. Rev. 1457, 1469 (2014) (discussing the expansion of statutorily-defined “aggravated felonies” under AEDPA and IIRIRA).
10 Id. at 1470 (citing U.S. Dep’t of Justice, Immigr. & Naturalization Serv., 1996 Statistical Yearbook of the Immigration and Naturalization Service 170–71 (1997)).
11 Id.
12 See IIRIRA, tit. V. “Restrictions on Eligibility for Benefits,” subtitle B “Expansion of Disqualification from Immigration Benefits on the Basis of Public Charge.”
13 The statute permitted the Attorney General to cancel the deportation of an immigrant who had physically been present in the United States for at least ten years at the time of application, or if “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” IIRIRA § 304 (codified at 8 U.S.C. § 1229b(b)(1)).
14 Id.
15 8 U.S.C. § 1229b(d)(1).
16 Here, I use the unaccented spelling of the Petitioner’s name when referring to the case, while relying on the accented á to recognize the Spanish convention for the spelling of his proper name. Consider this cultural and interpretive deference in a case where the meaning of the single letter “a” makes all the difference.
17 Niz-Chavez v. Garland, No. 19–863, slip op. at 16 (U.S. April 29, 2021).
18 Id. at 3.
19 Id. at 2–3.
20 Id. at 3.
21 Pereira v. Sessions, 138 S. Ct. 2105 (2018).
22 Niz-Chavez v. Barr, 789 F. App’x. 523, 530 (6th Cir. 2019).
23 Id.
24 Id.
25 See id. (discussing a circuit split on this issue between the Ninth Circuit (Lopez v. Barr, 925 F.3d 396, 405 (9th Cir. 2019)) and the 5th Circuit (Pierre-Paul v. Barr, 930 F.3d 684, 690 (5th Cir. 2019)).
26 See Niz-Chavez v. Garland, No. 19–863, slip op. at 4–9 (U.S. April 29, 2021).
27 See id. at 5.
28 Id. at 4, 15 (stating that “no amount of policy-talk can overcome a plain statutory command”).
29 Id. at 4–5.
30 Id. at 6.
31 Id.
32 Id. at 8 (citing the Fed. R. Crim. P. 7(a), (c)(1), (e); Fed. R. Civ. P. 3).
33 139 S. Ct. 954 (2019); Cori Alonso-Yoder, Response, Defining “the”: In Nielsen v. Preap the Court Relies on Language Arts to Justify Detention of Immigrants, Geo. Wash. L. Rev. On the Docket (Apr. 1, 2019), https://www.gwlr.org/defining-the-in-nielsen-v-preap-the-court-relies-on-language-arts-to-justify-detention-of-immigrants/.
34 Respondents in Preap asserted that the government’s reliance on 8 U.S.C. § 1226(a) to detain the respondents entitled respondents “to bond hearings to determine if they should be released pending a decision on their status.” Nielsen, 139 S. Ct. at 956.
35 Id. at 978 (Breyer, J., dissenting).
36 See Padilla v. Kentucky, 559 U.S. 356, 365 (2010) (“We have long recognized that deportation is a particularly severe ‘penalty,’ . . . but it is not, in a strict sense, a criminal sanction.” (internal citations omitted)).
37 See Transcript of Oral Argument at 39, Pereira v. Sessions, 138 S. Ct. 2105 (2018) (stating that “a blank page would not be a Notice to Appear” because “a Notice to Appear is a charging document” like “an indictment in a criminal case, [or] a complaint in a civil case”).
38 Pereira v. Sessions, 138 S. Ct. 2105, 2116–17 (2018).
39 See, e.g., Claire Hansen, ‘Get Back on Offense’: Immigration Advocates Look to Biden’s Next 100 Days, U.S. News (May 10, 2021, 3:31 P.M.), https://www.usnews.com/news/national-news/articles/2021-05-10/get-back-on-offense-immigration-advocates-look-to-bidens-next-100-days.
Recommended Citation
Ana Corina “Cori” Alonso-Yoder, Response, A Car, A Contract… Or An Indictment?, Geo. Wash. L. Rev. On The Docket (May 25, 2021), https://www.gwlr.org/a-car-a-contract-or-an-indictment/.
