Niz-Chavez

The outcome of the Niz-Chavez (141 S. Ct. 1474 (2021)) case ultimately turns on some small words and grammar rules. Yet this Supreme Court decision is an incredibly important one that will have a tremendous impact on immigrants in this country. Just how great an impact has yet to be fully revealed, but the Supreme Court has made clear that if the government is going to hold immigrants to all the requirements of our laws, it too must do the things the law tells it to do.

            Niz-Chavez involves the Notice to Appear (“NTA”), the legal document that begins immigration court proceedings. Immigration las, found in 8 U.S.C. § 1229(a)(1), specifies exactly what must be included in an NTA. An NTA must include the specific things an immigrant is charged with, and then it must also include the place, date, and time of his or her hearing. However, for years rather than including all that information, the government has been only including the charges and then putting “TBA” for the date and time of the hearing. They could have worked with the courts to set the hearing date and time first, but that would have taken more time, and they wanted to get the NTAs issued faster.

            Niz-Chavez is not the first Supreme Court decision to deal with NTAs. The Supreme Court previously called the government out on its failure to comply with the law in Pereira v. Sessions. In that decision, the Supreme Court put the government on notice that the NTAs they were issuing were not valid. However, subsequent lower court decisions narrowed Pereira to only apply to cancellation of removal stop-time-rule cases and then said subsequent notice of hearing cases cured the error. This allowed the government to continue as before and to ignore the law.

            The Court in Niz-Chavez calls the government out for this. They point out that they gave the government the chance in Pereira to correct their practices, but that rather than changing and following the requirements for NTAs, they dug their heels in and made excuses. The language of Niz-Chavez is broad. Although Niz-Chavez himself was seeking cancellation of removal, and although the specifics of his case involved the stop-time rule, the language judge Gorsuch used was broad. Specifically for Niz-Chavez, the notice of hearing did not cure the defective NTA because it did not contain his charges and therefore he never received a full NTA.

However, Gorsuch makes clear that this is not just about cancellation of removal. He points to the language of  every statute where an NTA appears invokes a single document. And he makes clear that language is important. Even something simple as the difference between “a notice to appear” and a “notice to appear” matters. The former could allow multiple documents, but the latter, as found in statutes, cannot. The singular a modifies the notice to appear, which means it is a single document.

            The question then is, what does this mean. And there are several possibilities. The narrowest reading would be that it just applies to cancellation of removal cases. The government is going to try to argue that.  But the language of Niz-Chavez is going to make that a difficult avenue for courts to take, and there are many good arguments attorneys can make that the decision is far broader than that.

The next possibility is that it is a jurisdictional issue. In immigration, personal (the court has power over the specific person) and subject matter jurisdiction (the court has power to hear the specific type of case) tend to be blended since our statutes and regulations don’t specify which kind of jurisdiction is given to immigration court. The NTA is what gives immigration court jurisdiction, but we do not know which kind of jurisdiction. Which kind does make a difference. If it is subject matter jurisdiction, then it can be brought up at any time, at any point in the case. However, if it is personal jurisdiction, if the immigrant has already appeared in court or filed anything else then the issue is considered waved by that previous appearance. Appearing in court is considered accepting the court’s personal jurisdiction. The other issue with jurisdiction is the question of whether jurisdiction is set by regulation or statute. Texas is in the Fifth Circuit, and the Fifth Circuit says that regulation sets immigration court jurisdiction. However, the Supreme Court previously said in a decision called Herz Corp. v. Friend (130 S. Ct. 1181 (2010). that Congress gets to set what jurisdiction is, meaning that statutes govern regulation. And the Supreme Court is a higher court than the Fifth Circuit, so their decision is the one that governs. Niz-Chavez as well makes clear that an NTA sets jurisdiction and commences legal proceedings. If it is a jurisdictional issue, your attorney can file a motion to terminate your case, or they can file a motion to reopen and terminate if you have an in absentia order.

If the improper NTA is not a jurisdictional issue, then it might be a claims processing issue. A claims processing issue is where a basic rule that promotes the orderly progress of litigation is violated. These issues can be waved by appearance in court, so if this is going to be your argument, make sure you file your motion before you file anything else. You want to find an attorney who has experience and understands this case so they can figure out how best to use it to help you.