Case No. 19-863 | 6th Cir.
November 9, 2020
Preview by Emma Liggett, Online Editor
Cancellation of removal is a form of immigration relief that allows nonpermanent residents to remain in the US if they have been here continuously for 10 years. 8 U.S.C.§ 1229b(b)(1) (2018). The “stop-time rule” enables the government to halt the tolling of that period of time by serving a “notice to appear” pursuant to 8 U.S.C. § 1229(a) (2018). See § 1229b(d)(1). In Pereira v. Sessions, the Court held that the stop-time rule will only be triggered if the notice contains “the specific time or place of the noncitizen’s removal proceedings,” as required by § 1229(a). 138 S. Ct. 2105, 2113–14 (2018). The issue in this case is whether “notice to appear,” as defined in § 1229(a), must include all of the required information in one document, or whether the government can provide the information in multiple documents over the course of time.
Guatemalan citizen Agusto Niz-Chavez has resided in the US since 2005. He fled his native country after neighboring villagers killed his brother-in-law and threatened to kill Mr. Niz-Chavez and his family if they did not leave. Brief for Petitioner at 17, Niz-Chavez v. Barr, No 19-863 (U.S. filed Aug. 6, 2020). In 2013, the government served him a notice to appear that failed to specify the date and time of his hearing, as required by § 1229(a). Id. at 18. Two months later, the government sent Mr. Niz-Chavez a hearing notice, with the date and time of his hearing at the immigration court. Id. A hearing was held in 2017, and the immigration judge denied Mr. Niz Chavez’s application for cancellation of removal. Id. The Board of Immigration Appeals affirmed this decision, despite Mr. Niz-Chavez’s presence in the US for twelve years, reasoning that the combination of the original notice to appear and the hearing notice, served in 2013, triggered the stop-time rule and thus the tolling of Mr. Niz-Chavez’s continuous years of residence in the US. Id. at 19.
Mr. Niz-Chavez argues that the text, structure, history, and purpose of § 1229(a) render the statute unambiguous in its requirement that a notice to appear be “a specific document that includes all of the closely related information listed in section 1229(a)(1).” Id. at 20. By calling it “a ‘notice to appear,’” the statute uses a “singular statutory term” that deems the notice one document that includes the required information in § 1229(a)(1). Id. The structure confirms this, Mr. Niz-Chavez argues, because the required information listed in § 1229(a)(1)(A)–(G) is interconnected, and only satisfies the notice requirement if it is all delivered together. Id. at 28. For example, subparagraph (A)’s “nature of the proceedings” requirement is closely related to subparagraph (G)’s “time and place” requirement. Id. History also supports this interpretation, as Congress removed the option of delivering time-and-place information in a separate document, which the predecessor to the notice to appear, the “order to show cause,” permitted. Id. at 21–22. Finally, requiring a notice to appear to include all relevant information in one document appropriately serves the statute’s purpose of “simplify[ing] the notice process and avoid[ing] the risk of ‘lapses . . . in the procedures for notifying aliens.’” Id. at 22 (quoting H.R. Rep. No. 104-469, pt. I, at 122 (1996)).
The Government contends that notice as required in § 1229(a)(1) is satisfied, and the stop-time rule triggered, if two documents together convey the required information. Brief for the Respondent at 13, Niz-Chavez v. Barr, No 19-863 (U.S. filed Sep. 25, 2020). This is supported by the text of the statute, which only specifies two requirements: the notice to appear must be in writing and it must be served in person or via mail. Id. at 10; see also 8 U.S.C. § 1229(a)(1) (listing the general requirements of notice to appear). Mr. Niz-Chavez, the Government argues, is calling for an atextual requirement that there be one specific, all-encompassing document. Id. at 11. Not only is this not required by the text of § 1229(a)(1), it does not advance the function of notice to appear, which is to provide “a mechanism for conveying substantive information” and to ensure that notice is efficiently served on noncitizens. Id. at 11–12. This, the Government argues, does not turn on whether the information is provided in one document or two, as long as the information is provided. Id. at 12.
While a two-step notice process may seem harmless in theory, it has the potential to injure noncitizens by fostering confusion and increasing the likelihood they miss critical hearings that determine the fate of their citizenship status. See Brief of American Immigration Lawyers Association, The American Immigration Council and Legal Services Providers as Amici Curiae in Support of Petitioner at 5–6, Niz-Chavez v. Barr, No 19-683 (U.S. filed Aug. 13, 2020). This is particularly concerning when individuals fled their native countries for the safety of their lives, as is the case here. The Court’s decision in this case may signal its approach in future cases, as its conservative bloc has now expanded.