Niz-Chavez v. Garland

• Decision Date: 29 April 2021
• Docket Number: No. 19-863,19-863
• Parties: Agusto NIZ-CHAVEZ, Petitioner v. Merrick B. GARLAND, Attorney General
• Court: U.S. Supreme Court

141 S.Ct. 1474

Agusto NIZ-CHAVEZ, Petitioner

v.Merrick B. GARLAND, Attorney General

No. 19-863

Supreme Court of the United States.

Argued November 9, 2020

Decided April 29, 2021

David Zimmer, for Petitioner.

Anthony A. Yang, for Respondent.

Sufen Hilf, Hilf & Hilf, PLC, Troy, MI, Benjamin Hayes, Goodwin Procter LLP, Washington, DC, David J. Zimmer, Counsel of Record, Gerard J. Cedrone, Gabriel Rossman, Goodwin Procter LLP, Boston, MA, for Petitioner.

Jeffrey B. Wall, Acting Solicitor General, Counsel of Record, Jeffrey Bossert Clark, Acting Assistant Attorney, General, Edwin S. Kneedler, Deputy Solicitor General, Anthony A. Yang, Assistant to the Solicitor, General, Donald E. Keener, John W. Blakeley, Patrick J. Glen, Attorneys Department of Justice, Washington, D.C., for Respondent.

Justice GORSUCH delivered the opinion of the Court.

Anyone who has applied for a passport, filed for Social Security benefits, or sought a license understands the government's affinity for forms. Make a mistake or skip a page? Go back and try again, sometimes with a penalty for the trouble. But it turns out the federal government finds some of its forms frustrating too. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–546, requires the government to serve "a notice to appear" on individuals it wishes to remove from this country. At first blush, a notice to appear might seem to be just that—a single document containing all the information an individual needs to know about his removal hearing. But, the government says, supplying so much information in a single form is too taxing. It needs more flexibility, allowing its officials to provide information in separate mailings (as many as they wish) over time (as long as they find convenient). The question for us is whether the law Congress adopted tolerates the government's preferred practice.

I

For more than a century, Congress has afforded the Attorney General (or other executive officials) discretion to allow otherwise removable aliens to remain in the country. An alien seeking to establish his eligibility for that kind of discretionary relief, however, must demonstrate a number of things. A nonpermanent resident, for example, must show that his removal would cause an "exceptional and extremely unusual hardship" to close relatives who are U.S. citizens or lawful permanent residents; that he is of good moral character; that he has not been convicted of certain crimes; and that he has been continuously present in the country for at least 10 years. 8 U.S.C. § 1229b(b)(1).

The last item on this list lies at the crux of this case. Originally, an alien continued to accrue time toward the presence requirement during the pendency of his removal proceedings. With time, though, some came to question this practice, arguing that it gave immigrants an undue incentive to delay things. See, e.g ., In re Cisneros-Gonzales , 23 I. & N. Dec. 668, 670–671 (BIA 2004). In IIRIRA, Congress responded to these concerns with a new "stop-time" rule. Under the statute's terms, "any period of continuous ... presence in the United States shall be deemed to end ... when the alien is served a notice to appear." § 1229b(d)(1).

All of which invites the question: What qualifies as a notice to appear sufficient to trigger the stop-time rule? IIRIRA defines a notice to appear as "written notice ... specifying" several things. § 1229(a)(1). These include the nature of the proceedings against the alien, the legal authority for the proceedings, the charges against the alien, the fact that the alien may be represented by counsel, the time and place at which the proceedings will be held, and the consequences of failing to appear. See ibid .

This seemingly simple rule has generated outsized controversy. Initially, the dispute focused on the government's practice of issuing documents labeled notices to appear that failed to include the time and place for the alien's removal hearing. The government argued these documents were sufficient to trigger the stop-time rule. It insisted that proceeding this way served an important governmental interest too: If it waited to issue notices until the calendars of its hearing officers became clear, aliens would accrue too much time toward the presence requirement. Ultimately, however, this Court rejected the government's practice in Pereira v. Sessions , 585 U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018). We explained that, in IIRIRA, Congress took pains to describe exactly what the government had to include in a notice to appear, and that the time and place of the hearing were among them. Id ., at ––––, 138 S.Ct., at ––––. The government was not free to short-circuit the stop-time rule by sending notices to appear that omitted statutorily required information. Id ., at ––––, 138 S.Ct., at ––––.

Today's case represents the next chapter in the same story. Perhaps the government could have responded to Pereira by issuing notices to appear with all the information § 1229(a)(1) requires—and then amending the time or place information if circumstances required it. After all, in the very next statutory subsection, § 1229(a)(2), Congress expressly contemplated that possibility. But, at least in cases like ours, it seems the government has chosen instead to continue down the same old path. Here, the government sent Mr. Niz-Chavez one document containing the charges against him. Then, two months later, it sent a second document with the time and place of his hearing. In light of Pereira , the government now concedes the first document isn't enough to trigger the stop-time rule. Still, the government submits, the second document does the trick. On its view, a "notice to appear" is complete and the stop-time rule kicks in whenever it finishes delivering all the statutorily prescribed information. The government says it needs this kind of flexibility to send information piecemeal. It even suggests it should be allowed to spread the statutorily mandated information over as many documents and as much time as it wishes.

Some circuits have accepted the government's notice-by-installment theory. Others, however, have held that the government must issue a single and comprehensive notice before it can trigger the stop-time rule. We agreed to hear this case, Niz-Chavez v. Barr , 789 Fed.Appx. 523 (CA6 2019), to resolve the conflict, 590 U.S. ––––, 141 S.Ct. 84, 207 L.Ed.2d 169 (2020).

II

When called on to resolve a dispute over a statute's meaning, this Court normally seeks to afford the law's terms their ordinary meaning at the time Congress adopted them. See, e.g. , Wisconsin Central Ltd. v. United States , 585 U.S. ––––, ––––, 138 S.Ct. 2067, ––––, 201 L.Ed.2d 490 (2018). The people who come before us are entitled, as well, to have independent judges exhaust "all the textual and structural clues" bearing on that meaning. Id. , at ––––, 138 S.Ct., at 2074. When exhausting those clues enables us to resolve the interpretive question put to us, our "sole function" is to apply the law as we find it, Lamie v. United States Trustee , 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (internal quotation marks omitted), not defer to some conflicting reading the government might advance.

A

In this case, our interpretive task begins with two statutory provisions we have already touched on. The first, § 1229b(d)(1), states that the stop-time rule is triggered "when the alien is served a notice to appear under section 1229(a)." In turn, § 1229(a)(1) explains that "written notice (in this section referred to as a ‘notice to appear’) shall be given ... to the alien ... specifying" the time and place of his hearing and all the other items we noted above. Almost immediately, these provisions pose the government with a problem. 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.

Nor is the government's response (echoed by the dissent) entirely satisfying. The government submits that § 1229(a)(1) defines the term "notice to appear" as "written notice"—and then says it's obvious "written notice" can come by means of one document or many. See post, at 1489 - 1490 (opinion of KAVANAUGH, J.). But this argument doesn't quite track. Section 1229(a)(1) says that "written notice" is "referred to as a ‘notice to appear.’ " The singular article "a" thus falls outside the defined term ("notice to appear") and modifies the entire definition. So even if we were to do exactly as the government suggests and substitute "written notice" for "notice to appear," the law would still stubbornly require "a" written notice containing all the required information.

Admittedly, a lot here turns on a small word. In the view of some, too much. The dissent urges us to overlook the fact Congress placed the singular article "a" outside the defined term in § 1229(a)(1). On its view, we should read the statute as if the article came inside the defined term. Post , at 1489 - 1491. But that's not how the law is written, and the dissent never explains what authority might allow us to undertake the statutory rearranging it advocates.¹ Nor does any of this help when it comes to § 1229b(d)(1), the provision that actually creates the stop-time rule, for that statute separately speaks of "a" notice to appear. Not once but twice it seems Congress contemplated "a" single document.

Perhaps recognizing this much, the government and dissent pivot and focus their efforts in a different direction. Now, they remind us that "[t]he indefinite article ‘a’ is often used to refer to something that may be provided in more than one installment." Brief in Opposition 10; see also post , at 1491 - 1492. The government observes, for example, that a writer can publish ...