On Thursday, the Supreme Court’s decision sided with an undocumented Guatemalan immigrant seeking to challenge his removal from the U.S. by immigration authorities.

Austo Niz-Chavez, an illegal alien, who arrived in the US in 2005 said: “his rights” were violated when he received two notices from the government instead of one notice.

The decision gathered an unusual coalition behind Justice Neil Gorsuch’s majority opinion: Conservatives who focus on legislative text—Justices Clarence Thomas and Amy Coney Barrett —joined liberals Stephen Breyer, Sonia Sotomayor and Elena Kagan, who tend to read ambiguous provisions in immigrants’ favour. In dissent were three conservatives who typically side with law enforcement, Chief Justice John Roberts and Justices Samuel Alito and Brett Kavanaugh.

The case marked the second time in three years the court found the government failed to follow deportation procedures outlined in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

The law states that the government must serve “a notice to appear” with essential details on individuals it seeks to deport. “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,” Justice Gorsuch wrote.

In a 6-3 decision authored by Justice Neil Gorsuch, the court said the Justice Department was violating federal law by not providing immigrants it seeks to deport with a single, comprehensive “notice to appear” with details on the charges and scheduled court appearance.

“If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them,” Gorsuch wrote in an opinion joined by a remarkable alignment of justices — Clarence Thomas, Stephen Breyer, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett.

The “square corners” doctrine of fairness and due process Gorsuch cited was penned by Justice Oliver Wendell Holmes, who said in a 1920 decision that a private company could not challenge its tax bill. In subsequent years, lower courts invoked similar language to describe government obligations to citizens.

Justice Brett Kavanaugh penned a dissent that was joined by Chief Justice John Roberts and Justice Samuel Alito.

Had Congress omitted the indefinite article and simply required notice to appear, the outcome could have been different. That is because the term notice “can refer to either a countable object (‘a notice,’ ‘three notices’) or a noncountable abstraction (‘sufficient notice,’ ‘proper notice’),” Justice Gorsuch wrote.

But the word “a” indicated that Congress envisioned a single document. After all, he wrote, “someone who agrees to buy ‘a car’ would hardly expect to receive the chassis today, wheels next week, and an engine to follow.”

Writing for the dissenters, Justice Kavanaugh said the decision was perplexing. “The statute nowhere says that written notice must be provided in a single document,” he wrote.
Besides, “ordinary meaning and literal meaning are two different things. And judges interpreting statutes should follow ordinary meaning, not the literal meaning,” he wrote. In ordinary parlance, he argued, “the word ‘a’ is sometimes used to modify a single thing that must be delivered in one package, but it is sometimes used to modify a single thing that can be delivered in multiple instalments, rather than in one instalment,” like an author who submits a manuscript to an editor in chapters, “one at a time, as they are ready.”

Although hinging on a tiny word, the case carries significance for thousands of noncitizens who were called to removal proceedings before meeting the 10-year threshold but who since have passed it. Ben Winograd, an immigration attorney in Washington, said the decision would apply to pending deportation cases. Unclear, he said, is whether “immigrants with final deportation orders get their cases reopened based on this issue.”

Thursday’s case concerned Agusto Niz-Chavez, who came from Guatemala in 2005 and later settled in Detroit. “He currently lives with and is the primary breadwinner for his long-time partner and their three young U.S.-citizen children, two of whom have significant health issues,” his Supreme Court petition says. He has no criminal record apart from two misdemeanours for driving without a license, it says.

In March 2013 the Department of Homeland Security served Mr Niz-Chavez a notice to appear stating his hearing would take place on “a date to be set at a time to be set.” Two months later, the department sent him another notice with a date in June 2013. Mr Niz-Chavez acknowledged he entered the U.S. unlawfully but sought to remain because he feared being tortured if returned to Guatemala. At a hearing in 2017, an immigration judge rejected the claim and ordered him removed.

Mr Niz-Chavez then sought a hardship exception to remain in the U.S., but the Justice Department’s immigration courts found that he didn’t meet the 10-year threshold because of the notices sent in 2013. A federal appeals court in Cincinnati ruled for the government, concluding that multiple documents could suffice as a notice to appear.

“Not to be cheesy, but the case stands for the idea that the government isn’t above the law,” said David Zimmer, who argued both Mr Niz-Chavez’s case and its 2018 predecessor. “Congress gave pretty clear instructions and the government just decided it didn’t want to do it.”

Mr Zimmer said, Mr Niz-Chavez isn’t guaranteed permission to remain in the U.S., but “he’s able to apply for cancellation of removal, and hopefully he’ll get it.”

Meanwhile, the Justice Department had no immediate comment.


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