Supreme Court justices pressed government attorneys about the implications of their positions for individuals who were subject to immigration proceedings and placed on the no-fly list.
Two sets of oral arguments took place on Jan. 8.
The first was for a consolidated group of cases—Campos-Chaves v. Garland and Garland v. Singh and Mendez-Colin—that questioned how much initial notice—specifically, time and date—the federal government must provide non-citizens of their court hearing before ordering that they be removed via deportation.
Those cases centered around provisions in the Immigration and Nationality Act (INA), which laid out the process for notifying immigrants of their hearings. Some debate has occurred, however, over what the law requires in terms of a notice to appear in court.
The U.S. Court of Appeals for the Ninth Circuit ruled that Varinder Singh did not receive proper notice of his hearing, stating that it must include the time and date. Assistant to the Solicitor General Charles McCloud warned the court that the Ninth Circuit’s decision “threatens to unsettle hundreds of thousands of in absentia orders that have been entered over the course of nearly three decades.”
This case involves a circuit split in which the Ninth Circuit and Fifth Circuit have issued conflicting opinions about the INA in Singh and Campos-Chaves, respectively. The Court could issue an opinion resolving both cases by clarifying how the INA governs notices and subsequent removal orders.
Much of the debate dealt with what constituted a “change” between the notice to appear and the notice of hearing issued to non-citizens. The law requires that the government notify noncitizens of changes to the time and date of their hearing.
Easha Anand, an attorney with the MacArthur Justice Center, used voter registration to illustrate why she thought the government was wrong in arguing the second notice would constitute a change in that case. “If you never filled out your voter registration form, your change of party affiliation form doesn’t—is not valid either,” she said.
Some of the discussion focused on the Supreme Court’s ruling in Pereira v. Sessions. Justice Sonia Sotomayor wrote the majority opinion in that case, which revolved around notices of hearing but involved a different provision—the “stop-time rule”—of the law. While Mr. McCloud suggested that Pereira “was a narrow decision that decided a particular question presented,” Justice Sotomayor indicated that she thought her opinion had broader implications.
“The finding in that case 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,” she said.
“They wanted these notices to be full and complete. That’s what we held. And having held that, I think there’s a presumption that you have to look at the statute in that context, that there will always either—they will always start with a proper notice to appear, and if you’re going to change the time and place, you’re going to give a new time and place.”
When Mr. McCloud suggested “change” had a broader meaning, Justice Sotomayor asked, “So change is no change? Meaning you haven’t set a time and place and we’re going to change that and set what? Another no time and place?”
Transparency in No-Fly List Cases
The second case—FBI v. Fikre—involved an American citizen named Yonas Fikre who learned in 2010 that he was placed on the no-fly list. Because the FBI later removed him, the government moved to declare the case moot, or no longer “live” in a way that allowed an Article III court to review it.If a defendant like the government voluntarily decides to cease unlawful conduct, their decision falls under the “voluntary cessation doctrine, which says that doing so doesn’t automatically moot the case for a plaintiff. The question before the court was whether Mr. Fikre’s case was truly moot, as well as what he would like in addition to being removed from the list.
Some of the justices worried that withholding that information wasn’t fair to Mr. Fikre, who wouldn’t be able to avoid activities that may have contributed to his placement on the no-fly list.
“An American citizen normally has a right to what’s been called every man’s evidence against him,” Justice Neil Gorsuch said. “That’s due process. That’s a pillar of our democracy. And, here, the government says, no, you don’t get that evidence.”
Both Justice Gorsuch and Justice Elena Kagan wondered whether the government could allow a judge to hear the FBI’s reasons for listing Mr. Fikre.
Justice Kagan also focused on a hypothetical Justice Sonia Sotomayor posed regarding activity that might have raised the FBI’s suspicions.
Assistant to the Solicitor General Sopan Joshi emphasized that the no-fly list determinations were based “on a totality of information” received.
Justice Samuel Alito worried, however, that Mr. Fikre would still be put in a difficult position, noting that the prospect of him being put back on the list was “entirely speculative.”
He also indicated that the totality of evidence formulation could be altered by individual circumstances in a case. “It’s based on the totality of the circumstances,” he said. “So there is the possibility that any additional relevant circumstance could be just the thing that tips the balance and he could be put back on.”
This case similarly involved a decision by the Ninth Circuit, which ruled that Mr. Fikre’s case was not moot. The Supreme Court could either agree with the government and reverse that decision, or uphold the decision and potentially require additional action from a lower court.
