Day 355: What’s Precedent Got to Do with It?

Photo by Jesse Collins on Unsplash

In 2018, the Supreme Court held that DHS can begin a removal case against a noncitizen (and stop the clock on the noncitizen’s residency) by issuing a Notice to Appear (NTA) that complies with INA § 1229(a)(1). That section requires DHS to list the time and place of the hearing. Without listing time and place (among many other requirements), the NTA is invalid and does not commence a removal case.

This makes sense. The NTA is like a charging document in a criminal case — in fact, it literally lists the charges. Just as a criminal case doesn’t begin until the charging document is served, a removal case doesn’t begin until a valid NTA is served. That’s what Congress said in § 1229(a)(1), and what the Supreme Court said in Pereira v. Sessions in 2018.

The Court repeated this three years later, in Niz-Chavez v. Garland, in holding that the requirements of an NTA in § 1229(a)(1) have to be in one document, not spread across two documents, the NTA and a subsequent Notice of Hearing.

Forget What I Said

Last week, the Court just swatted away that precedent in Campos-Chaves v. Garland. Now, suddenly, a valid NTA isn’t necessary to commence a removal proceeding after all. Even if the government issued an admittedly invalid NTA, but then filled in the gaps in a later notice of hearing that the noncitizen failed to attend, that’s good enough. The noncitizen cannot seek to reopen and rescind the removal proceedings — even though, under the logic of Pereira and Niz-Chavez, those proceedings were never properly commenced under the statute.

As Justice Jackson points out in dissent, the majority finds it more sensible to say that the noncitizen could have shown up to the hearing and didn’t, so all bets are off. To get there, they do a highly technical reading of the statute that turns on the meaning of the word “or.”

But in this close reading, they not only ignore the statutory scheme — which the Court has twice said requires a complete NTA to commence legal process — but also give the back of the hand to Pereira and Niz-Chavez. The Court disposes of Pereira in one paragraph. Astonishingly, Niz-Chavez — one of two cases that’s directly on point, if not controlling — gets brushed off in a mere footnote.

As Justice Jackson writes,

Our statements in Pereira and Niz-Chavez demonstrate that the Court twice before thought obvious the reading of the statute the noncitizens here propose. Yet the majority now cries dicta. The Court says the meaning of §1229(a)(2) was not at issue in Pereira, which concerned the “‘narrow question’” of the operation of the stop-time rule. … To be sure, “we are not necessarily bound by dicta should more complete argument demonstrate that the dicta is not correct.” [citation omitted] Here, however, “more complete argument” has served only to confirm our previous statements.

Last Man Standing

The Court’s careful, textual readings of INA § 1229(a)(1) in Pereira and Niz-Chavez were authored by Justice Sotomayor and Justice Gorsuch, respectively. I’ve always remembered (and respected) Justice Gorsuch’s statement in concluding the majority opinion in Niz-Chavez: “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.”

Campos-Chaves was decided 5-4, with Alito writing for the Court. Justice Gorsuch joined Jackson, Sotomayor, and Kagan in dissent.

Alito had dissented in Pereira and Niz-Chavez.

It seems that voting blocks, not precedent, are what matters in the Court now. Never mind precedent; wait long enough and you might have enough votes to ignore the very reasoning the Court adopted in two prior cases just a few years ago.

That makes it little more than a third, tiny, transparently political branch of government.

I’m starting to think about what to put on my picket sign ….