SCOTUS Hears Oral Arguments on Notice Requirements (Again)
On Monday, January 8, the Supreme Court heard consolidated oral arguments for Campos-Chavez v. Garland and Garland v. Singh.
These cases center around the issue of whether an immigration court must enter an in absentia removal order and deny a respondent’s request to rescind that order in a case where the government serves an initial notice document that fails to include a time and place (as required by Pereira v. Sessions, 138 S. Ct. 2105 (2018) and Niz-Chavez v. Garland 141 S. Ct. 1474 (2021)), but follows up with an additional document that contains this information. In these cases, has the government fulfilled its notice requirement such that a motion to rescind the removal order should not be granted?
During the oral argument, Justice Sotomayor expressed that the Supreme Court already held in Niz-Chavez that the notices need to be “full and complete.” The government attorney tried to distinguish this case from Pereira and Niz-Chavez by stating that these two separate forms of notice are valid for the purposes of ordering a noncitizen removed in absentia. Justice Gorsuch found the government’s argument lacking, noting that the government is arguing that it is acceptable to leave off information it finds “inconvenient, like the hearing date” and taking a “trust us” approach with the law (see transcript pages 18 and 19). Another interesting aspect of this oral argument was that more than one justice brought up the issue of noncitizens not being properly informed that they have the right obtain counsel. Justices entertained the possibility that the government may forego its responsibility in providing this notice with a “trust us” approach with this information, too.
AILA continues to follow this case closely. The EOIR liaison committee raised the issue of as recently as its 2023 fall liaison meeting with HQ. The committee highlighted issues of late notice of hearings and scheduling orders that do not reach practitioners in time and result in removal orders. Though different from in absentia removal orders, issues of improper notice pervade multiple aspects of the immigration system. We expect a decision from the Court this spring and will disseminate information to the AILA membership as soon as possible.
We see time and time again that people are doing their best to show up for court hearings. In absentia removal orders have lasting consequences for people’s ability to apply for relief in the future. It is hard enough to follow the various requirements, but when the notices from the government itself don’t contain all of the information necessary to allow an immigrant to comply, or they are not informed that they have a right to counsel, well, the deck is clearly stacked against them.