in absentia

The Supreme Court issued a decision limiting the ability of noncitizens to reopen and rescind in absentia orders of removal issued against them in their June 14, 2024 decision, Campos-Chaves v Garland, 602 U.S. ___ (2024). The relevant portions of the Court’s decision are quoted below. You can read the entire decision at the Supreme Court’s Website. FACTS OF THE CASE The facts of the case involved noncitizens who received a defective NTA that lacked the time and place of the hearing. Each later received a notice of hearing containing the time and place of the hearing.  Mr. Campos-Chaves moved to rescind his in absentia removal order because the Department of Homeland Security never gave him a valid NTA with notice of the date and time of his hearing. SCOTUS said that because DHS later gave him a “Notice of change in time or place of proceedings,” that counts as proper notice and cures the defective NTA, so he could not reopen his deportation order. THE COURT’S DECISION With this decision, the Court backtracked from two recent decisions that had emphasized the importance of a complete NTA in immigration proceedings. In Niz-Chavez and Pereira , SCOTUS said that an NTA must include a wide range of information in a single document, including the removal charges, the facts to support those charges, notice of the right to be represented by an attorney, and the time and place of removal proceedings. The dissenting opinion noted this unexplained departure from their prior precedent. The decision also seems to contradict BIA case law. Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022) (a respondent may timely object to a deficient NTA prior to the closing of pleadings and need not show any prejudice caused by the missing time and place information); Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024) (DHS cannot remedy a defective NTA by filing an I-261). Indeed, in dicta, the majority opinion states that: “[a]lthough an alien who receives only paragraph (2) notice must still attend the hearing or face in absentia removal, he can raise issues regarding incomplete notice at that time.”   GOING FORWARD Respondents can and should continue to object to proceedings taking place based on a defective NTA. They can cite Matter of Fernandes and Matter of Aguilar Hernandez to preserve a timely objection to the defective NTA. Niz-Chavez and Pereira remain good law and are not overruled by this decision as to the stop-time rule. So a statutorily compliant NTA is still required in order to trigger the stop-time rule for cancellation of removal.                          The Court’s Decision: To initiate the removal of an alien from the United States who is either “inadmissible” under 8 U. S. C. §1182 or “deportable” under §1227, the Federal Government must provide the alien with “written notice” of the proceedings. §§1229(a)(1), (2). Two types of “written notice” are described in paragraphs (1) and (2) of §1229(a): Paragraph (1) provides that the alien be given a written “ ‘notice to appear,’ ” or NTA, which must set out, among other things, “[t]he time and place at which the proceedings will be held.” Paragraph (2) states that “in the case of any change or postponement in the time and place of such proceedings,” the agency must provide “a written notice” specifying “the new time or place of the proceedings” and “the consequences” of failing to attend. An alien who fails to attend a hearing despite receiving notice “shall be ordered removed in absentia” if the Government “establishes by clear, unequivocal, and convincing evidence” that “the written notice” was provided and that “the alien is removable.” §1229a(b)(5)(A). Three scenarios permit the rescinding of an in absentia removal order, one of which is when an alien “demonstrates that [he] did not receive notice in accordance with paragraph (1) or (2)” of §1229(a). §1229a(b)(5)(C (ii). In these consolidated cases (one from the Fifth Circuit, and two from the Ninth), aliens Esmelis Campos-Chaves, Varinder Singh, and Raul Daniel Mendez-Colín, each moved to rescind his in absentia order of removal on the ground that he did not receive proper notice of the removal hearing. In each case, the Government provided an initial NTA, but the NTA did not specify the time and place of the removal hearing. Eventually, the Government provided each alien with a notice of hearing under §1229(a)(2) which set out the specific time and place of the removal hearing. None of the aliens showed up for his hearing, and each was ordered removed in absentia by an Immigration Judge. Each then sought to rescind the removal order, arguing that he did not receive a proper NTA under §1229(a)(1). The Fifth Circuit considered and denied one of the petitions, but the Ninth Circuit granted the other two. Held: Because each of the aliens in this case received a proper §1229(a)(2) notice for the hearings they missed and at which they were ordered removed, they cannot seek rescission of their in absentia removal orders on the basis of defective notice under §1229a(b)(5)(C)(ii). Pp 7–16. (a) These cases turn on whether Campos-Chaves, Singh, and Mendez-Colín can “demonstrat[e]” that they “did not receive notice in accordance with paragraph (1) or (2) of section 1229(a).” §1229a(b)(5)(C)(ii). The Government reads that provision to permit rescission only when the alien did not receive notice of the hearing he failed to attend. Campos-Chaves, Singh, and Mendez-Colín, on the other hand, urge a reading of the provision’s word “or” that would distribute the phrase “did not receive notice in accordance with” across “paragraph (1) or (2).” They argue that because each can “demonstrat[e]” that he “did not receive” an NTA, they each can seek rescission of their in absentia removal orders. Pp. 7–8. (b) The Government’s provision of a single notice under either paragraph (1) or (2) defeats rescission under §1229a(b)(5)(C)(ii). The word “ ‘or’ ” is “ ‘almost always disjunctive.’ ” Encino Motorcars, LLC v. Navarro, 584 U. S. 79, 87. Thus, §1229a(b)(5)’s ordinary meaning … Read more