Failed Refugee Claimant Should Not Be Deported If Paperwork Was Defective, Supreme Court Hears

November 9, 2020 Updated: November 9, 2020

A Guatemalan national whose refugee claim was rejected shouldn’t be removed from the United States because the government allegedly failed to serve a legal notice on him properly, the Supreme Court heard in a highly technical case.

The Trump administration favors deportation in the case. If the government loses, it may become more difficult to deport illegal aliens.

Cited as Niz-Chavez v. Barr, the case is an appeal from the 6th Circuit Court of Appeals. After an immigration judge rejected the claim, the man appealed to the Board of Immigration Appeals and the 6th Circuit, both of which agreed with the immigration judge.

Agusto Niz-Chavez, an illegal alien who was born in 1990 and has misdemeanor convictions for driving without a license, has three young children, all of whom are U.S. citizens, according to court documents.

He was born in Tajumulco, Guatemala, in 1990, and claims he has a well-founded fear of persecution in that country that arose out of a local land dispute that turned violent. Villagers killed his brother-in-law during the dispute and threw Niz-Chavez’s family off the land it owned. He testified that if he returned to Guatemala, his enemies would continue their vendetta against him.

Niz-Chavez received multiple documents advising him to appear for a deportation hearing, but his lawyer David J. Zimmer told the Supreme Court during oral arguments Nov. 9 that he should have been sent only one notice.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 was enacted to eliminate the legal battles that followed from persons concerned receiving information in several notices, as the statute previously allowed, instead of just one, Zimmer said.

“The statute’s text and the changes Congress made in IIRIRA unambiguously establish that a notice to appear is a specific notice document. As a textual matter, the government simply cannot explain why Congress used the phrase ‘a notice’ if what it really meant was simply notice in the abstract.”

Justice Stephen Breyer questioned Anthony A. Yang, who appeared on behalf of the U.S. Department of Justice.

“It seems to me, if you read [IIRIRA], it says send a notice … not four notices, a notice to appear which contains the following,” Breyer said.

“All right? And … if you have more than one document with some of this information, people are going to get mixed up. The aliens might get mixed up.”

Justice Elena Kagan said the law seemed “perfectly clear” to her, and several times used the phrase “pretty clear” to describe the law.

The disagreement between the two sides over legal notices affects other rights.

The Immigration and Nationality Act (INA) provides that the attorney general may cancel the removal of a nonpermanent resident who has 10 years of continuous presence in the United States.

But under the so-called stop-time rule, the government can terminate those periods of continuous residence by serving “a notice to appear under section 1229(a)” of the INA.

In the Supreme Court’s 2018 ruling in Pereira v. Sessions, the court held that only notice “in accordance with” the definition in section 1229(a) triggers the stop-time rule.

Niz-Chazev argues that, under the circumstances, he is therefore eligible for relief from deportation.

He asked the court in his petition to decide whether the stop-time rule requires that “the government must serve a specific document that includes all the information identified in section 1229(a), or whether the government can serve that information over the course of as many documents and as much time as it chooses.”

Justice Neil Gorsuch told Zimmer that the case resembles the 2018 precedent.

“It sure seems a little bit like Pereira Groundhog Day to me,” the justice said, referring to “Groundhog Day,” a 1993 movie in which the main character relives the same day over and over again.

“I would have thought that the government would have taken the hint” following Pereira that notice to appear says what the law says it means, he said.

Justice Brett Kavanaugh seemed to side with the government.

Because Niz-Chavez received notice, “Why doesn’t that end the case?” he told Zimmer.

Zimmer acknowledged that the stop-time rule would come into play if the government sent two documents including the required information in the same envelope, but not if the information was contained in two envelopes received the same day.

Would Congress have wanted that “absurd result”? Chief Justice John Roberts asked.

The government could solve the legal problem by attaching the old notice to a subsequent one showing the date of the hearing, he said.

“It doesn’t seem to me that that should be terribly administratively burdensome,” Roberts said.