Campos-chaves v. Garland
Oral argument transcript · No. 22-674 · October Term 2023 · argued January 8, 2024 · the respondent won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Easha Anand, Stanford, California, for the petitioner
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We'll hear argument first this morning in Case 22-674, Campos-Chaves versus Garland, and the consolidated case. Mr. McCloud. ORAL ARGUMENT OF CHARLES L. McCLOUD ON BEHALF OF THE UNITED STATES
McCloud: Thank you, Mr. Chief Justice, and may it please the Court: Each of the non-citizens in these cases failed to attend a removal hearing after receiving written notice of the time and place of that hearing. Under the rule adopted by the Ninth Circuit, however, the non-citizens can rescind their in absentia removal orders based on a supposed lack of notice. That holding defies text, context, and common sense, and it threatens to unsettle hundreds of thousands of in absentia orders that had been entered over the course of nearly three decades. In reaching that extraordinary result, the Ninth Circuit misread the statutory scheme and this Court's decisions in Pereira and Official 1 Niz-Chavez. As to the statute, the Ninth Circuit is wrong that the omission of time and place information in a notice to appear renders all subsequent notices invalid. Congress created two distinct forms of notice, and it made both of them potential grounds for in absentia removal. The removal orders in these cases were based on notices of hearing that specified a new time and place for the removal proceedings and that warned the non-citizens of the consequences of failing to attend those proceedings. That's all Section 1229 requires for a notice of hearing to be valid. As to Pereira and Niz-Chavez, we acknowledge that the Court is not writing on a blank slate when it comes to notices to appear, but Pereira and Niz-Chavez do not decide these cases. The question presented today was not briefed in those cases, it was not argued in those cases, and was not necessary to resolve in those cases. The Court's narrow decisions do not create the sweeping defense to removal that the non-citizens here seek. Official 1 I welcome the Court's questions.
Justice Thomas: Well, Mr. McCloud, Pereira seems to work against you, so I think you -- it would be good for you to spend a -- a bit of time on that.
McCloud: Certainly, Your Honor. So I think that the important thing about Pereira is that it was a narrow decision that decided a particular question presented, and that question presented was about the interaction between the stop-time rule in 1229b(d)(1) and the notice to appear requirements. And if I could point to where in the Court's opinion that holding appears, it's at the beginning of Part II B of the opinion. This is on page 2114 of the Supreme Court Reporter version if you have that available. And at the beginning of the first paragraph of that section of the opinion, the Court says, "The statutory text alone is enough to resolve this case." It then proceeds to analyze the text of the two provisions that I just referenced. Now it's true that after this point in Official 1 the opinion, there is additional analysis, but I think much of that additional analysis is dicta. The Court said that that analysis supported or bolstered or reinforced the conclusion it had already reached. And I think that's particularly true of the statements that the non-citizens and the Ninth Circuit have relied on in Pereira. To go directly to the statement about the -- the meaning of "change," the meaning of "change" was not briefed in Pereira. It was not argued in Pereira. And so the Court in Pereira did not have before it, the wealth of argument and evidence that we have brought to bear on that question in this case.
Justice Kagan: I -- I take the point, Mr. McCloud, but, you know, it is a very directed statement. By allowing for a change or a postponement to a new time or place, paragraph (2) presumes that the government has already served an NTA that specified a time and place as required by (a)(1). And I don't think we were looking to reach out and decide a lot of questions that weren't before us. I think -- and this was a -- Official 1 you know, eight justices joined this opinion. It just seemed the sort of obvious understanding of the statutory scheme. So, you know, even if it's dicta, it reflected what eight people thought was pretty obvious when you looked at the statute.
McCloud: So, Justice Kagan, if I can take that in -- in two pieces. So there are two sentences there. The first one you referred to talks about a presumption in the statute that the notice of hearing will follow the notice to appear. And I agree, I -- I don't think that there is any dispute that there is such a presumption in the statute. But identifying that presumption does not answer the question in this case, which is what happens when the presumption is not met and the notice to appear did not contain the time and place information. Then the second statement, which I acknowledge is a difficult statement for me, is the statement about the meaning of "change." And I -- I -- I do think that's dicta. I also think it's incorrect dicta, and it's not surprising the Court got that incorrect because Official 1 it just did not have the evidence like the dictionary definitions, like the contextual evidence about the meaning of "change" that we have brought to the Court's attention in our briefing in this case.
Justice Sotomayor: Mr. McCloud, that -- that seems to beg the question. The finding in that case, and since I wrote it -- (Laughter.)
Justice Sotomayor: -- was that the statutory presumption commanded by Congress, who knew full well that the government was giving notices with TBAs, time and place to be announced, regularly, was contrary to that history. They wanted these notices to be full and complete. That's what we held. And having held that, I think there's a presumption that you have to look at the statute in that context, that there will always either -- they will always start with a proper notice to appear, and if you're going to change the time and place, you're going to give a new time and place. I -- I -- I don't understand that a new time and place is something different than Official 1 what you've already specified.
McCloud: And, Justice Sotomayor, in this case, we think that we did satisfy that burden because we did provide a new time and place. We told the non-citizens where their removal hearings would be held, and so they had the information they needed to attend. And so I -- I don't think that "change" is actually the operative word in the statutory scheme, but I don't want to fight you too hard on that because I do think that even if you think that a notice of hearing must change a previously set time or place for the hearing, that requirement is satisfied here because the ordinary meaning of the word "change" is very broad, and it encompasses the process of going from --
Justice Sotomayor: So change is no change? Meaning you haven't set a time and place and we're going to change that and set what? Another no time and place?
McCloud: Your Honor, what we have done --
Justice Sotomayor: You're saying no, it's going to be a time and place now. Official
McCloud: Your Honor, what we have done in the TB NTAs is to tell the non-citizen you're going to have a hearing. We don't know when that hearing will be, but we have changed from that placeholder time to a specific time. And we think that under the ordinary meaning of "change," particularly as it's used in this statutory scheme, going from an indeterminate time and place to a determined one is a kind of change.
Justice Sotomayor: Mr. McCloud --
Justice Jackson: But didn't you lose that --
Justice Sotomayor: I'm sorry.
Justice Jackson: Didn't you lose that argument in Niz-Chavez? I mean, I -- I -- I understand and take your point, but I thought the Court said you really couldn't interpret the statute in that way or the word "change" in that way.
McCloud: Respectfully, Justice Jackson, I -- I don't agree. I think the only issue that the Court decided in Niz-Chavez was whether we could compile two documents together to create "a" notice to appear, and the Court Official 1 said that that definite article "a" indicated that the notice to appear needed to be a single document. And so we are not disputing for purposes of these cases that the notices to appear alone could not be the basis for in absentia removal, but what's critical about this case and what distinguishes this case from Pereira and Niz-Chavez is that Congress here created two forms of notice and it made both of them relevant for purpose of in absentia removal in a way that they are not relevant for purposes of this topic --
Justice Jackson: Can you say more about that --
Justice Barrett: Mr. --
Justice Jackson: -- two forms of notice? What do you mean?
McCloud: I mean that they created both the paragraph (1) notice, the notice to appear, and the paragraph (2) notice, the notice of hearing or, as the other side refers to it, the notice of change.
Justice Jackson: So you think those -- Official
Justice Barrett: Mr. --
Justice Jackson: -- operate completely independently of one another?
McCloud: They're independent in the sense that they can both be independent valid bases for in absentia removal. I take the point that the notice to appear is what initiates the proceeding, and so, some sense, you need to have a proceeding in order for there to be a notice of hearing to -- to alter that proceeding. But I don't think it is the case that the TBD status of the notice to appear in any way invalidates the later notice of hearing, and that's because the statute is very clear about the requirements for a valid notice of hearing. It needs to set the new time and place, and we did that in this case.
Justice Barrett: Mr. McCloud, what would happen if the non-citizen showed up to the right time and place in response to the notice of hearing, but the NTA had been incomplete? Would that be grounds for the non-citizen objecting that the entire proceeding was invalid? Because, after all, the statute Official 1 does say "shall," this following information shall be provided. So, if the date and time was omitted from the initial one, would that be grounds for an invalidation of a proceeding?
McCloud: No, Justice Barrett. All of the courts of appeals that have considered that issue and the Board when it has considered that issue has said that the requirements, both the statutory requirements and the regulatory requirements, regarding the notice to appear and the information it has to contain are claims processing rules, they are not jurisdictional rules, so they do not divest the immigration court of jurisdiction if there is information missing from the notice to appear.
Justice Barrett: So is your position -- let me try to state how I -- I don't think you say it quite this way in your brief, but this is what I take from your brief, and I want to see if I'm understanding it correctly. A notice of hearing presupposes that there has been a notice to appear because, otherwise, well, both because of the word "change" and, otherwise, there would be no way Official 1 for the alien to receive it because you have to know what address to send it at or have personally served it, correct?
McCloud: That's correct.
Justice Barrett: Okay. So is it your position that once the notice of hearing arrives telling the non-citizen where and when to show up, even if there's some information lacking -- and let's say it's information that's even maybe more significant than the date and time that the government has been omitting and it's maybe an incomplete statement of the grounds for removal. That the alien, by versus -- by virtue of the in absentia provision, has an obligation to show up because he's on notice, it's not like he's not aware that he is in contact with, you know, Immigration and that there are removal proceedings underway. But he has an obligation created by the notice of a hear -- of hearing to show up and at that point to register any objections he may have to the incomplete NTA.
McCloud: That is our position, Justice Barrett. I want to make sure that I'm clear, though, that we think there are a number of safeguards that would prevent the result that Official 1 you're talking about or the blank document hypothetical that the other side has raised, and if I could go into those protections.
Justice Barrett: Sure.
McCloud: The first is the regulatory requirement that the notice to appear contain the charging information. So, if we had a blank document or a document that was missing the charges against the non-citizen --
Justice Barrett: But don't you need, and I'm sorry to interrupt -- but don't you -- I'm sorry, don't you need need the protection from the statute itself? Because the regulatory requirement can be subject to change. So I think your better argument comes from the clear and convincing evidence requirement in the statute itself.
McCloud: That was my second response, Your Honor, which is we bear the burden by clear and convincing evidence to prove that the non-citizen both received notice and that they are removable as charged. And so, if you have a document that lacks charges, we could not prove that the non-citizen actually is removable. Official 1 And then the third --
Justice Kagan: Suppose -- I'm sorry.
McCloud: Well, the third protection I was going to refer to is the fact that in absentia removal is not automatic. There is an immigration judge who is sitting on the other side of the bench and who has to review the documents and decide whether in absentia removal is appropriate. And so I think it is highly unlikely that an -- an -- an immigration judge in the circumstances with the blank document or the document without charges would enter in absentia.
Justice Kagan: Suppose the (a)(1) notice didn't have the right to counsel in it.
McCloud: So the -- the answer I think is the same as before. We view the right to counsel information obviously as an important piece of information, but the lack of that information does not affect the validity of the proceedings. So, if the -- the non-citizen --
Justice Kagan: Right. So it does suggest -- I mean, you're -- you're not informed Official 1 of your right to counsel. Nonetheless, you have to show up. And I don't see that any of your safeguards actually protect the alien, the non-citizen, in that situation. I mean, what's going to prevent the non-citizen from being ordered removed, not being able to reopen, notwithstanding that he's never been told that he has a right to a lawyer?
McCloud: What prevents that result, Your Honor, is the regulations that I was referring to. If the notice to appear does not contain the information about the right to counsel, that is an incomplete notice to appear that would be rejected by the immigration court.
Justice Gorsuch: Well --
McCloud: I also want to emphasize that --
Justice Gorsuch: -- counsel, let -- let me -- let me -- let me pause there. Your regulations are interesting because they -- they suggest that a lot of things are required in a notice to appear, except stuff that the government finds inconvenient, like the hearing date, and try to resuscitate the pre-statutory regime that existed before where the government Official 1 could issue as many notices as it wanted. So the regulations themselves may or may not comply with the statute and they -- as Justice Barrett pointed out, they may or may not change. The only statutory hook I think you've identified to -- to save the problem is the clear and convincing evidence requirement, but that's just a clear and convincing evidence requirement that the notice was given. And, here, the notice would be the Section 2 notice, the notice of change. So none of that means that the NTA, the Section 1 notice, has to be complete or, in fact, anything other than a blank document, right?
McCloud: So, Justice Gorsuch, I think, if we were in the world where we had repealed our -- all our regulations and we have somehow, you know --
Justice Gorsuch: I'm not --
McCloud: -- convinced the immigration judge to --
Justice Gorsuch: Forget about your regulations. The law. Your -- your -- your -- your interpretation of the law has to hang Official 1 together and make sense of the law. Otherwise, it is a "trust us" argument. Trust us. We will -- we will have all our own internal operating procedures. I'm asking you about statutory interpretation. And we normally ask -- we think statutes are coherent, sensible, not ridiculous. You -- you invoked common sense in your opening argument. And, here, one consequence of your argument, I think, is that the NTA can be a blank document and that you can remove someone in absentia based on a notice of change that says show up on a date certain. Nobody -- the immigrant may or may not know that this is really the government. It's just a date to show up in some place. It doesn't have notice of charges or lawyers against him. And the government wins, right?
McCloud: So, Just -- Justice Gorsuch, I have several responses to that question. The first is this is not a case where we are simply asking you to trust us. This is a statute that has been on the books for nearly 30 Official 1 years --
Justice Gorsuch: So let's talk --
McCloud: -- and has been used --
Justice Gorsuch: -- about the statute. Let's --
McCloud: --- hundreds of thousands of times.
Justice Gorsuch: Am -- am I correct that the clear and convincing evidence rule that you're relying on as a matter of statutory interpretation would allow the government to remove somebody for a blank document, NTA, if they failed to appear on a notice of change, the government can prove by clear and convincing evidence it issued a compliant notice of change?
McCloud: Our position is that if a non-citizen receives a paragraph (2) notice, a notice of hearing saying show up at immigration proceedings at this date and this time, then, yes, the non-citizen needs to comply with that.
Justice Gorsuch: Okay.
McCloud: And if the non-citizen doesn't attend, they could be removed.
Justice Gorsuch: And so, if that happens -- Official
McCloud: That's very far away from the facts of these cases.
Justice Gorsuch: -- if -- if that happens -- if that happens, if that's the consequence of your statutory interpretation, we have to ask whether that fits with common sense, you say. Okay. One common-sense consequence might be this: That if the government can issue blank notices to appear, which it has found rather inconvenient in the past to -- to -- to comply with that provision, need only file notice of changes and then remove people who fail to show up, why wouldn't it proceed in exactly that fashion going forward as a consequence of a decision in the government's favor in this case when, as I understand it, and my figures may not be exact, about a third of cases in immigration proceedings are in absentia removals, so failures to appear. So why not issue a blank NTA because they're hard -- they're -- they're a pain, we've found them difficult, then issue an -- a compliant notice of change, show up on a date certain, and then remove about a third of the Official 1 aliens in this country without any notice of the charges against them or their right to counsel or anything else, and then deal with the remainders and -- and file compliant notices to appear in those cases?
McCloud: So, Justice Gorsuch, we do not do that and have never done that --
Justice Gorsuch: I'm not asking you --
McCloud: -- for several reasons.
Justice Gorsuch: Let's put aside the "trust us" arguments. What would prevent the government from following where the incentives of that decision might lead as a matter of law?
McCloud: And -- and, Justice Gorsuch, what I'm disputing is that we would have any incentive ever to do that because, if we did that, if we used the blank document, there would not be a removal proceeding under our own regulations in which to order the non-citizen removed. So we have no incentive to do that --
Justice Sotomayor: Mr. McCloud, I -- I have a problem, which is I think I don't have to go as far as Justice Gorsuch. You could Official 1 continue what you're doing. We have two prior decisions telling the government a notice to appear is inadequate that doesn't have the time and place. Despite that, and despite the fact that there's ample proof that it can be done, it hasn't been done. It continues to issue these TBA notices to appear. If we rule in your favor, we're giving you an incentive to continue that practice, because you can do it continuously. You don't have to pay any attention to the statute. You can continue doing TBAs and continue your practice. As Justice Gorsuch said, those people who show up, you give them a compliant one when they show up. Those people who don't, you remove them in absentia, and they can't ever come back and complain about your process. That's really the incentive here.
McCloud: So, Justice Sotomayor, I have two responses to that. First, I want to talk a little bit about our current practices. We have made very significant progress in the years since Pereira and Niz-Chavez in reducing the number of TBD NTAs that are still issued. There are Official 1 technological and operational reasons why we're not down to zero yet, and I'm happy to talk about those if Your Honor is interested. But I do want to assure the Court that we take very seriously the obligation to comply with this Court's decisions and to comply with the statute. The -- the bigger problem is, assuming we could issue NTAs that had time and date information going forward, it does not do anything about the hundreds of thousands of cases that have already been closed where removal orders were already issued --
Justice Sotomayor: So let's go to the practical problems. You started by saying there's an entitlement to reopen. There isn't. It is the right to make a motion to reopen, but it's still discretionary for the BIA to decide whether to reopen. Is that correct?
McCloud: So that is the way that we read the statute. That's not the way that some courts, in particular the Ninth Circuit, have read the statute. They have suggested that if a non-citizen files a motion and they can prove that they -- they got the defective NTA -- Official
Justice Sotomayor: Well, that's a separate legal issue. The way the statute is risen -- written, it is not mandatory to reopen. It -- there -- they can take into account what happened in one of these three cases where a -- a litigant showed up. And I don't know, did you forfeit that argument in -- was that the last case that's before us, the Mendez-Colín case?
McCloud: In the Mendez-Colín argument?
Justice Sotomayor: Yes. He showed up a number of times and then left, correct?
McCloud: That is correct, and we did not make a specific waiver or forfeiture argument if that's what Your Honor is referring to.
Justice Sotomayor: That --
McCloud: We've highlighted the facts of his case for two reasons. The first is because it shows --
Justice Sotomayor: But you could have made that argument?
McCloud: I suppose we could have, Your Honor. But it wouldn't, I think, address some of the problems with the other side's Official 1 position, in particular --
Justice Sotomayor: Why?
McCloud: -- the other side's --
Justice Sotomayor: If -- if you had raised that argument, do you have any doubt the BIA would have said you forfeited because you had notice of these proceedings and your rights and the time and place?
McCloud: So there are two problems with relying on waiver or forfeiture in this context. The first is it still allows these motions to be filed. And if even some significant fraction of the hundreds of thousands of old in absentia orders are injected back into the immigration system, that could have a very significant impact on a system that is already dealing with a backlog of 3 million cases. The second problem is that waiver or forfeiture actually heightens the perverse incentives that the non-citizens rule creates. Mendez-Colín would have been better off just never showing up. And so their rule creates a circumstance where non-citizens are encouraged to flout the rules of the removal process by Official 1 failing to appear.
Justice Sotomayor: But, if you comply with the statute, they won't be in that position. This is about past people who have already chosen to abscond after they know about hearings. They can't unring the bell.
McCloud: And -- and that's our significant concern, Your Honor. There are a huge number of these past people who have gotten in absentia orders after failing to appear, and we don't have any way to remedy that going forward. And if the Ninth Circuit's rule stands --
Justice Kagan: I mean, I appreciate the force of the point, Mr. McCloud, but there are so many people because the government was out of compliance with this statute for so long. And so, at a certain point, it's just -- you can't sort of ask us to read the statute against what the statute says because we've created a world in which kind of we've long since forgotten what the statute says.
McCloud: So, respectfully, Justice Kagan, that's not what we're asking. We're asking you to apply the statute as it's Official 1 written, and that is a statute that permits in absentia removal when a non-citizen received notice either -- under either paragraph (1) or paragraph (2). And all the non-citizens here got the paragraph (2) notice. They haven't contested that they received notice of when and where to show up.
Justice Kagan: I think that's what most fundamentally I find a little bit discomfiting about your argument, this idea that there are two forms of notice, take your pick. If one is good, who cares about the other. I mean, it seems to me that if you read the statute fairly, it's quite clearly -- and -- and this is what we said in our two prior cases -- you know, (a)(1) is the notice. That's the notice. And what (a)(2) -- it tells you what you have to put in it, all the things that you have to do. Here are the charges. Here is your right to counsel. And here is when you're supposed to show up. And what (a)(2) is about is Congress understood that there were going to be times when you were told to show up on March 15th and then it turned out that March 15th was Official 1 impracticable or impossible for any of a number of reasons, and it was a mechanism to say, okay, we don't mean March 15th; instead, show up on August 15th. But that's what the function of (a)(2) is. It's not some completely distinct form of notice that you can say, hey, look, we did that one.
McCloud: I -- I just disagree, Your Honor. I think that the (a)(2) notice serves a distinct purpose, and that purpose is to provide the non-citizen with the information they need to know in order to decide whether they want to attend the removal hearing or not.
Justice Jackson: Doesn't it also --
McCloud: And all of the non-citizens --
Justice Jackson: -- doesn't it also serve the purpose of giving the government the right to remove them in absentia? I mean, the thing that's a little concerning to me about the way the government has constructed its argument here is the suggestion that we ignore 1229(a)(5)(A), which requires the government to give the person notice as a prerequisite for the Official 1 government's ability to take advantage of the procedure of removing them without a hearing. So I guess I'm a little concerned that what you're suggesting is that we should presume that the -- that the removal is proper, the removal order is proper, even if the notice was defective, and now it's on the non-citizen to say something or it shifts to his burden to prove, you know, that he should not be removed under those circumstances.
McCloud: A -- a couple of responses, Your Honor. First, we are not asking you to read out of the statute the -- the paragraph (2) notice or to ignore the paragraph (1) notice. We're saying both of those notices are relevant for purposes of in absentia removal. And we bear the burden as the government of proving that the non-citizen got notice. But that notice can be in the form of the paragraph (1) notice or the paragraph (2) notice.
Justice Jackson: But how do you square that with the -- the prior cases? I don't understand your distinction. It -- maybe I would understand it if we hadn't already Official 1 looked at this same circumstance to determine whether a notice is defective and what is the consequence of that. So, in Pereira, we said, if it doesn't have the time or place, the notice to appear, then it's defective. And as I read Niz-Chavez, we say the government can't cure that deficiency for the purpose of the stop-gap -- stop-time rule by providing a paragraph (2) notice. So the government, I think, has to say there's something different about this scenario, the removal scenario in -- in absentia, than the top -- the stop-time rule scenario.
McCloud: And there are two significant differences, Your Honor.
Justice Jackson: Okay.
McCloud: One is textual and one is based on -- on legislative history and drafting. So the textual difference is that for purposes of the stop-time rule, the only notice that is relevant is the notice to appear. That is the only notice that is referred to in that provision.
Justice Jackson: Why -- why do you Official 1 say that? I'm sorry.
McCloud: Because, when you look at the text of the stop-time rule --
Justice Jackson: Yeah.
McCloud: -- it says it is triggered based on the service of a notice to appear. There is no reference to the notice of hearing.
Justice Jackson: But it says a notice to appear under Section 1229(a) of this title, and the notice of hearing is under Section 20 -- 1229(a) of this title as well, right?
McCloud: Well, Your Honor, that's the argument we made in Pereira that the Court rejected. The Court said that for purposes of that provision, only the notice to appear is relevant. So, even though it refers generally to 1229, the notice to appear is the only notice that's being referred there -- to there. And that is very different textually from the in absentia removal provision, which refers to notice under either paragraph (1) or paragraph (2). And so --
Justice Jackson: What's the legislative history reason? Official
McCloud: The legislative history reason is that Congress clearly, when it was adopting these provisions, the in absentia removal provisions, wanted to cut down on procedural gamesmanship and the abuse of loopholes by non-citizens that could be used to avoid removal. So it makes sense that Congress would want to be expansive in in absentia removal in a way it wouldn't necessarily have wanted to do for purposes of stop time.
Chief Justice Roberts: Thank you, counsel. Justice Thomas? Justice Alito?
Justice Alito: What do you think would happen if the government proceeded along the lines that Justice Gorsuch has outlined?
McCloud: I think we would create a mess for ourselves because we would not have any proceedings in which to remove non-citizens.
Justice Alito: Would that be subject to challenge under any provision of federal law?
McCloud: Yes. It would be subject to challenge under our own regulations. I assume that non-citizens would challenge it Official 1 under this statute as well. And I think the fact that this has never happened in more than 500,000 in absentia removals is proof that we have no incentive whatsoever to do that.
Justice Alito: Would aliens have an incentive to challenge that as a due process violation?
McCloud: They could. We haven't taken a position on the due process issue, but I think that's a viable argument that they could at least raise.
Justice Alito: Thank you.
Chief Justice Roberts: Justice Sotomayor?
Justice Sotomayor: No.
Chief Justice Roberts: Justice Kagan?
Justice Kagan: I mean, the reason I asked earlier about suppose not a blank piece of paper, but suppose you just stopped telling people about their right to counsel, how that would be cured, what would prevent it? Because that kind of thing seems both more likely to me and more difficult to remedy through anything -- any of the supposed safeguards that you've talked about. Official
McCloud: So, Justice Kagan, if I can maybe address the question about whether that's more likely, I think it's important to recognize that the notice to appear is a form document. It's not as though the notice to do --
Justice Kagan: Well, it is now, but it doesn't have to be. And, you know, maybe somebody will say, why are we -- why are we telling people that they have this right?
McCloud: So, Justice Kagan, if -- you know, non-citizens don't have the right to have counsel during these proceedings, they have the right to be informed that they could obtain counsel.
Justice Kagan: Yeah.
McCloud: If a non-citizen is --
Justice Kagan: Right. But, you know, that's a useful thing for a non-citizen to know.
McCloud: And I'm not disputing that. And that's why we put that in the -- the notice to appear.
Justice Kagan: And so tomorrow you decide not to.
McCloud: If we were to decide not Official 1 to put that information into the notice to appear, I would still say that that notice to appear can validly be used to start the removal proceeding, but the non-citizen, if they come to the hearing, as they should, can say, I was never informed of the right to counsel and, therefore, I shouldn't have been -- you know, I should get that opportunity.
Justice Kagan: Not that we have to start all over again? That's and -- I mean, what law would -- would the non-citizen at that point invoke under -- under your theory of the statute?
McCloud: So the regulations and the statute have been interpreted as a claim processing rule. If we don't comply with all of the requirements of the claim processing rule, there are questions about exactly what the remedy is. Some courts have said the remedy is a new proceeding. Some courts have said that the remedy is that the government gives an opportunity to cure. So, in your scenario, I think the remedy would be that we give the non-citizen time to obtain counsel and we inform them of Official 1 their right.
Justice Kagan: Thank you.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: I'm not sure if I understand in the first place your -- your response to Justice Thomas and -- and -- and Justice Sotomayor about Pereira and particularly the most troublesome language for you about "change" meaning something other than what the government is currently suggesting. As I understand it, we -- we would have to say, first, that's dicta and, second, it's incorrect, is that right?
McCloud: Yes. And that's exactly the analysis the Court undertook in the Kirtsaeng case, where it confronted a very similar statement.
Justice Gorsuch: Got it, okay. I -- I understand my hypotheticals about a blank sheet are hypotheticals, but it's not hypothetical that the government has long issued NTAs that are non-compliant and that it concedes it did so in the cases presently before us, right? Official
McCloud: That's correct.
Justice Gorsuch: And then I wanted to ask you about the provision in the in absentia removal statute that says that you can remove somebody if they've -- an alien if -- if he has failed to supply his address. Doesn't that fairly suggest that the alien has first received a compliant notice to appear telling him, as the statute requires, that he must supply his address?
McCloud: Yes, Your Honor, and that's what the Board held in the In re G-Y-R- decision that's cited in our reply brief. It said, if you never received a notice that informed you of that requirement, you can't be ordered in absentia --
Justice Gorsuch: I -- I understand that's your response, that, oh, don't worry. Okay? But I think the logic of your argument is, if he fails to appear for a notice of change hearing, he -- your -- and -- and the notice of change statement notice was itself compliant, forget about the NTA, you're good to go in absentia removal. That's -- that's the -- Official 1 that's the -- how you're asking us to read the statute presently. Now you're adding a qualifier and saying: Well, not with respect to addresses if the NTA didn't ask him for his address. But where in the statute does that come from? When I look at the in absentia removal provision as you read it, if I'm to take your logic seriously, that's irrelevant. Now it's nice that you have a Board decision and -- and -- or a regulation, but I'm again asking you as a matter of statutory interpretation how that argument hangs together.
McCloud: And the answer as a matter of statutory interpretation is that if you look at 1229(b)(B), it refers to --
Justice Gorsuch: ?
McCloud: (b)(B).
Justice Gorsuch: (b).
McCloud: Little b, big B.
Justice Gorsuch: Little b, big B, okay.
McCloud: It says that no written notice shall be required under subparagraph (a) if the alien has failed to provide the address Official 1 required --
Justice Gorsuch: Yes.
McCloud: -- under Section 1229(a)(1)(F).
Justice Gorsuch: Yes, which just repeats what's -- what -- what 1229(a) says and what a(B)(5)(b) and what 1229(a)(2)(B) say. It's -- it -- it -- there it is again. But it doesn't say anything about limitations on in -- in absentia removal. It just simply says the notice to appear should -- should contain this information --
McCloud: Well -- well, what --
Justice Gorsuch: -- and you should provide it and --
McCloud: -- what the Board has said is that --
Justice Gorsuch: Forget about what the Board has said. As a matter of statutory interpretation, you pointed me to one provision. It doesn't work. What else have you got?
McCloud: If I could finish my answer about why that provision does work, it's the words "required under Section 1229(a)(1)(F)." Official
Justice Gorsuch: Yes, which refers us all the way back up, I got that.
McCloud: Which refers us back up to (a) --
Justice Gorsuch: Yeah.
McCloud: -- (a)(1).
Justice Gorsuch: Yeah.
McCloud: And so, if you never received information in (a)(1) that said you have this obligation, you don't have an obligation to update the information.
Justice Gorsuch: Fair enough. But where does it follow that in absentia removal for a failure to appear for a notice of change hearing depends upon any of that? I don't see that in the statute.
McCloud: I -- I think that follows from the text of (b)(5)(A) and (b)(5)(B), Your Honor.
Justice Gorsuch: That -- that's what you've got?
McCloud: That's what I've got.
Justice Gorsuch: All right. Thank you.
Chief Justice Roberts: Justice Official 1 Kavanaugh?
Justice Kavanaugh: I think you were interrupted when you were saying correcting the NTAs going forward doesn't do anything about the hundreds of thousands who previously received NTAs without the time and date, so can you just finish your answer on that? Like, what will happen to those hundreds of thousands of cases?
McCloud: Certainly, Justice Kavanaugh. So, as the Ninth Circuit has interpreted this provision, all of those hundreds of thousands of individuals have a right to seek rescission. And as I was discussing with some members of the Court earlier, at least in the Ninth Circuit and some other courts, that right is essentially automatic. And so we are very concerned that those hundreds of thousands of cases could be injected back into the immigration system. And we have already seen some evidence of that in the wake of the Ninth Circuit's panel decision in Singh. So, in 2021, the year prior to the Singh panel decision, there were 380 motions to rescind in absentia orders filed nationwide. In Official 1 2022, the year of the Singh decision, that had risen to over 6,000. And in 2023, that had risen to over 11,000. So I think, if this Court sides with the Ninth Circuit, that already substantial increase we have seen is going to turn into an avalanche.
Justice Kavanaugh: And then how do we think about the context of the stop-time rule versus the context of in absentia removal in thinking about the particular statutory provisions here, or is that the different context not relevant?
McCloud: No, I think it is relevant in this respect, Your Honor. So one of the concerns that the petitioner in Pereira brought and that I think the Court latched onto in Pereira was that the stop-time rule gives the government a procedural advantage, and there was a sense that it was unfair to allow the government that procedural advantage if it had never committed to moving forward with removal proceedings in the first place.
Justice Kavanaugh: What's the procedural advantage? Just spell that out. Official
McCloud: The procedural advantage is that the non-citizen does not accrue years toward cancellation of removal. And so it makes it easier for the government to remove someone if we can trigger the stop-time rule. So there was a sense of -- of unfairness, I think, or at least an allegation of unfairness there. That's very different from this context. In the in absentia removal context, the unfairness, I think, would come from giving non-citizens who knew they were in removal proceedings and who knew they had an obligation to go to their hearings and who knew when and where the hearings were the chance to claim a lack of notice when they clearly had notice. And that disadvantages other non-citizens who did follow the rules, who complied and went to their removal proceedings, because those non-citizens could be removed at the end of their proceedings, but someone like Mendez-Colín, who just decides, I don't want to show up, has this in absentia order, but it could always be rescinded under the Ninth Circuit's rule.
Justice Kavanaugh: So you're better Official 1 off not showing up?
McCloud: You are. You're absolutely better off not showing up.
Justice Kavanaugh: Yeah. Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: Mr. McCloud, could you tell me what the distinction is between the notice to appear and the charging document that the government begins to file the removal proceedings?
McCloud: For purposes of removal proceedings, there is no distinction. Charging document in the regulations is defined to include other documents that can start other kinds of immigration proceedings.
Justice Barrett: And it's defined exclusively in the regulations --
McCloud: It's defined in the regulations.
Justice Barrett: -- and in the statute?
McCloud: That's correct.
Justice Barrett: Okay. So -- and that "clear and convincing" portion of the in Official 1 absentia removal proceeding part of the statute, it says you have to show by clearing and -- clear and convincing evidence that the written notice was provided and by clear and convincing evidence that the non-citizen is removable.
McCloud: Correct.
Justice Barrett: Okay. So a big concern and I think the -- the worst part for you is this blank document hypothetical or hypothetical that omits crucial information like the right to counsel or the grounds for removal. What would the IJ do -- and -- and I'm going to toe -- the Justice Gorsuch line here -- don't refer me to the regulations. As a matter of the statutory language, for purposes of determining whether the non-citizen by clear and convincing evidence is removable, is it possible if only the notice of hearing has been provided for the IJ to make that determination? I mean, I guess, according to the statute, the government could simply say and launch into a whole new explanation that wasn't included in any NTA about why the alien or the non-citizen is removable.
McCloud: So I -- I think the Official 1 answer is it is not possible because removability requires an assessment of the charges against the non-citizen. So, if all the IJ had was the notice of hearing that says this is the time for the proceeding and the consequences for not attending --
Justice Barrett: But the charging document, you told me, isn't defined in the statute, so it could say something different than the NTA.
McCloud: So, if we are in a world where the government has supplemented the charges against the non-citizen I guess orally or they've appended them to the notice of hearing, I suppose the immigration judge could look at that document and decide that it complies --
Justice Barrett: We're imagining the world of the worst-case hypothetical where it's a blank document for the NTA and then the notice of hearing that tells the non-citizen where and when to show up and the nightmare hypothetical that then the non-citizen can be ordered removable when he was never informed what the charges against him were, the grounds of Official 1 removability.
McCloud: And I guess where I'm struggling in the hypothetical is with the idea that the -- the immigration judge would even be able to say that the non-citizen is removable if there are no charges.
Justice Barrett: Well, that's my question too, so that's why I asked you what the distinction between the NTA and whatever document is necessary to initiate the removal proceeding is, because it seems to me that if they are distinct documents and they are different, the nightmare scenario can unfold with the safeguard of the regulations.
McCloud: Maybe I was unclear in my -- my answer --
Justice Barrett: Okay.
McCloud: -- to your first question. For purposes of removal, the charging document is the notice to appear. That's why the notice to appear has to contain the charges in order for it to be a notice to appear that starts a removal proceeding. So, in the blank document hypothetical, where there's no charges Official 1 whatsoever, there was no charging document, and so there was no proceeding, and there's no way for the immigration judge to assess removability because they can't see the charges against the --
Justice Barrett: Okay. So, when you told Justice Gorsuch -- he -- he said all you need to show by clear and convincing evidence is that the notice was served, and you agreed with him, are you amending that answer?
McCloud: I -- I may have misunderstood his question. I thought the question that I was asked by Justice Gorsuch was assume away all of those protections in the regulation and assume away the fact that the notice has to contain the charges, what result then? And I -- I think the answer then is the notice of hearing alone would be sufficient, but that's just a million miles away from the reality of this statutory scheme --
Justice Barrett: Okay. So your answer is that the non-citizen cannot be found removable unless the government shows by clear and convincing evidence that the notice was provided and that he is removable, and you're Official 1 saying that there's no way to show that he's not removable if the NTA has not been served? So at least that much information would have to be there?
McCloud: If -- if there's no document that contains charges against the non-citizen, there's no way to show that they're removable.
Justice Barrett: Okay. So it doesn't eliminate Justice Kagan's hypothetical of right to counsel not being included, but it would eliminate the hypothetical of the entirely blank document?
McCloud: I think that's fair.
Justice Barrett: Okay. Thank you.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: Can we go back to the distinction, if any, between the stop-time rule and in absentia removal? I understood you to respond to Justice Kavanaugh by saying that the government's position is that the stop-time rule gives the government a procedural advantage, the ability to thwart the accrual of time, and so that's why the government has to Official 1 dot all the I's and -- and cross all the T's with respect to that. But I guess I see this as exactly -- "this" meaning in absentia removal -- as exactly the same thing, because, ordinarily, a non-citizen would be entitled to a hearing where he or she could make an argument and advocate for themselves about removal, and the statute allows the government to get around that in a sense by allowing the -- the government to get a removal order in the absence of adversarial presentation by the person who doesn't show up. And so I guess what I'm trying -- still struggling with is why we would have a world in which a statute that requires the government to give notice in order to be able to get a removal in absentia order would allow for that notice to be deficient in any way. Justice Barrett talked about the different ways in which it might be deficient, but why -- why could the government give deficient notice in order to get the benefit of in absentia removal when we've already held that the government can't give deficient notice to get the benefit of the stop-time rule? Official
McCloud: I have a couple of responses to that, Justice Jackson. The first is we agree that non-citizens get the opportunity to present their case in the way that Your Honor suggested, and they get that opportunity by showing up at the hearing. So the facts of these cases are we told the non-citizens when and where to show up to present their case and they failed to do that.
Justice Jackson: Yeah, but the statute --
McCloud: That still leaves --
Justice Jackson: -- the statute doesn't say, if the non-citizen doesn't show up, the government gets the removal order. The statute says, if the non-citizen doesn't show up and the government proves that through clear and convincing evidence they got notice and the person is removable, then the government gets the order. So I don't think the government can rely on the fact that the person didn't show up as the basis for the validity of their removal order. And my question remains, if the Official 1 government doesn't actually prove that they gave the notice that the statute requires, why should the government be entitled to getting the removal order in this case when the government would not have been able to get the stop-time order under our prior precedents?
McCloud: And -- and I think my answer is similar to the one that I gave you before, which is, for purposes of in absentia removal, there are two notices that are relevant and can be a basis for in absentia removal, and --
Justice Jackson: No, you're just saying that the notice isn't deficient. I -- if -- let's assume that the notice is deficient. My question is, if the notice is deficient, you're suggesting that there's something about removal that would make it okay for the government to still get the order in that situation, when we've said, if a notice is deficient in the stop-time rule scenario, that the government can't stop the time. And I see that parallel and I'm worried about whether or not you're really asking us to implicitly overrule Pereira or Official 1 Niz-Chavez in the analysis if we hold for you in this case in the way that you are setting forward.
McCloud: No, Your Honor. We're asking you to take Pereira seriously when it said that it was a narrow decision about the intersection between the stop-time rule and the notice to appear requirements. We are not saying that if a non-citizen gets absolutely no notice whatsoever, they can be ordered removed in absentia. In these cases, it is true that the notice to appear lacked certain information, but that missing information was supplied by the notices of hearing that the non-citizens received.
Justice Jackson: But you don't -- you don't dispute that that missing information in this case is the same mission -- missing information that was in Pereira and Niz-Chavez, right? We're not talking about two different kinds of missing information that might allow you to make this distinction?
McCloud: I don't dispute that the information is the same. I dispute that the Official 1 relevance is the same because, in Pereira and in Niz-Chavez, for purposes of the stop-time rule, there was a concern, if it -- we never told the non-citizen when and where to show up for the proceedings, they weren't going to be able to figure out what to do. Here, the information was provided to the non-citizens, so they had --
Justice Jackson: All right. Let me ask you just two more really quick things. One is, is in absentia removal the only way the government can remove a non-citizen? I -- I didn't understand your response to Justice Alito about that. You can -- you can remove a non-citizen without in absentia removal, right?
McCloud: Correct. If a non-citizen goes to their removal proceeding, they can be found removable. So I didn't mean to suggest that in absentia is the --
Justice Jackson: Or if you find them and you arrest them and you bring them for removal, they can be removed, right?
McCloud: That's the way that an ordinary removal proceeding works, and that's the way that these removal proceedings were Official 1 initiated as well. What's different about these cases is the non-citizens just didn't finish out the process.
Justice Jackson: All right. And, finally, with respect to the catastrophic nature of a ruling in the favor of the other side, you said that the Ninth Circuit finds that there's automatic reopening and whatnot. So couldn't we agree with the Ninth Circuit's holding related to the deficiency of the notice here but maybe disagree that there's automatic reopening for all the people who have previously had this problem?
McCloud: So I -- I guess what I would say is the question of what is the remedy and whether it's automatic or not is not before you. I don't think it's fairly included as part of the question presented, but --
Justice Jackson: But if we were to -- true, true. But what I'm just saying is it's -- it's not necessarily the case that we would have this catastrophic result because we could have a separate remedy question that we could disagree with the Ninth Circuit.
McCloud: That -- that is true, Official 1 you could have a later remedy case, but I would still caution that even if it's not automatic, a significant number of these motions are likely to be granted because the non-citizens are saying we did not get notice. And so, if they are granted and if they are injected back into the immigration system, that is going to have significant impacts on that system.
Justice Jackson: Thank you.
Chief Justice Roberts: Thank you, counsel.
McCloud: Thank you.
Chief Justice Roberts: Ms. Anand. ORAL ARGUMENT OF EASHA ANAND ON BEHALF OF THE PETITIONER IN CASE 22-674 AND ON BEHALF OF THE RESPONDENT IN CASE 22-
Easha Anand: Thank you. Thank you, Mr. Chief Justice, and may it please the Court: This is the third time the government has come before this Court and asked to be relieved of the consequences of flouting the plain text of the INA. For a third time, the government says the notice it gave is good enough. Just as it did in Pereira and Niz-Chavez, this Court should Official 1 reject the government's argument here. Indeed, the government's position in these cases is more extreme than its position in Niz-Chavez. In Niz-Chavez, the government said, so long as the government -- so long as the non-citizen gets all of the information listed in paragraph (1), it doesn't matter what format it comes in. In these cases, the government seems to be arguing that if you have a paragraph (2) notice, it does not matter if the non-citizen never gets any of the information in paragraph (1). And just to slightly amend the kind of nightmare hypothetical we're talking about, it's where the government sends the non-citizen a blank piece of paper but nonetheless gives the immigration judge information about, for instance, the charges against the non-citizen. In that circumstance, the government can prove by clear and convincing evidence removability, the non-citizen has no clue what the charges against him are. And where, as in Niz-Chavez, the argument was that a deficient NTA was nonetheless sufficient to stop the clock for Official 1 discretionary relief, here, the government is arguing that same deficient NTA is somehow sufficient for the far more draconian sanction of removing a non-citizen without ever hearing their side of the story. Because the statute doesn't contemplate that result, because it requires a complete valid paragraph (1) notice in every case, and contemplates a paragraph (2) notice only as a supplement to that valid paragraph (1) notice, this Court should reject the government's arguments again. I welcome this Court's questions.
Justice Thomas: What's your best textual argument for your last point?
Easha Anand: So, Your Honor, we think that there's two buckets of textual evidence. The first is about the sort of centrality of the NTA. So it's the fact that it shall be issued in every removal proceeding, the fact that it contains a bunch of information that's not in paragraph (2), and the fact that the statute says that a hearing can't be held less than 10 days from the NTA. So there's a presumption of the NTA. Official 1 The second bucket is the language of 1229 paragraph (2), which says that a -- a notice of change must be given only in the case of a change in the time and place of the proceeding. And we believe that the -- the combination of those two, the centrality of the NTA, the change language that this Court has already interpreted in Pereira, adds up to our position.
Justice Thomas: I think it says "any change," and that "any change" language seems to be broad enough for the change here.
Easha Anand: So, Your Honor, again, that "any change" language is -- is the same language that was interpreted in Pereira, and I don't think it's broad enough to encompass what happened here. If I could take the example from the government's reply brief of the voter registration form and the change of party affiliation form, if you mess up your voter registration form, if it's invalid in the same way here the NTAs were invalid, it doesn't matter how many change of party affiliation forms you file. Until you fix that voter Official 1 registration form, filing a change form won't do any good. The same thing is true here. Because the NTA initially was invalid because it had the TBD language, it doesn't matter how many times you say, I'm trying to change that. Until you've got the valid NTA, there's no change to be had.
Justice Kagan: Could I just have a clarification of your position, Ms. Anand? Suppose that you have a -- a non-citizen has a paragraph (1) notice and there's nothing wrong with the date and time. So the government fills out the date and time correctly, but it does something else wrong. It doesn't tell the non-citizen about the charges, or it doesn't tell the non-citizen about the right to counsel or so forth. And then there's a paragraph (2) notice because there needs to be a change in the date or time. Now, at that point, what happens? Is -- is -- is -- could the non-citizen reopen?
Easha Anand: So no, Your Honor, and that's sort of for the reason I just articulated. So we think that in this case, the Official 1 change language is wrong for two reasons. One is we think TBD to date and time is not actually a change, but the other reason is what I just --
Justice Kagan: Right. So I've just taken that out.
Easha Anand: Right.
Justice Kagan: Right?
Easha Anand: So the second --
Justice Kagan: And I'm saying so -- so now you can't rely anymore on the textual hook of what the word "change" means.
Easha Anand: Right. So --
Justice Kagan: Do you still have an argument?
Easha Anand: Yes, Your Honor, because it's not just a change. It's a change to the time and place of the proceeding. And if there's never been a time and place of the proceeding set, because the NTA is invalid, right, it's not doing its function of initiating a proceeding, then there can't be a change to the time and place.
Justice Kagan: No, no. Maybe I'm not making myself clear. I was assuming that in your -- in -- there's -- there's no problem in Official 1 the first notice with the time and date. So, you know, you don't get the textual hook of saying, oh, that's not a change because it hasn't gone from to be determined to March 15th. It's gone from February 15th to March 15th. But there's some other problem. There's some other problem about the charges or about the right to counsel. It seems to me that you've now lost your textual hook for the non-citizen to be able to say that they have a right to reopen. Am I wrong about that?
Easha Anand: I think you're wrong, and that's, again, because of -- I'll go back to the voter registration hypothetical. So, if the initial document is invalid, right, you never actually registered to vote, you can't just file -- fill out a change of party affiliation form even if you had a party listed in the registration form. And that the same thing is true here. The NTA is invalid if it's missing some of the information in paragraph (1). And so it's not actually doing any work. Now -- Official
Justice Gorsuch: So you would say --
Easha Anand: -- you know, I think it's overdetermined in this case because --
Justice Alito: Well, do you think as a --
Justice Gorsuch: I -- I -- I -- I just want to make -- before we leave this, I just want to make sure I understand it too. I'm sorry to interrupt. But you would just say there's simply no NTA, and so it isn't something that's remedied by Section 2, which has to do with time and place information. You just need to file a compliant NTA and then off you go. Is that --
Easha Anand: That's exactly right. Now, again, in this case, it's overdetermined because we also have the --
Justice Gorsuch: The change, yeah.
Easha Anand: -- TBD date change language and because sort of the square holding of Pereira is that it --
Justice Gorsuch: I just wanted to make sure I understood. Thank you.
Easha Anand: Thank you.
Justice Gorsuch: Sorry to interrupt. Official
Justice Alito: Do you dispute the proposition that just as a matter of ordinary language, there can be a change from an indeterminate time or place to a determinate time or place?
Easha Anand: So, yes, Your Honor, we think that ordinary speakers of English don't use "change" to refer to indeterminate time to determinate time. So we give the example of a bride who announces she's going to get married. We don't know the date yet. When she sends out her cards telling you the date, we call that a Save the Date, not a Change the Date, for instance.
Justice Alito: Well, I mean, if the -- the bride says, I'm going to get married, and a friend says, oh, when is that going to happen, and the bride says, well, we don't know yet, then the other person says, well, let me know if there's any change, do you think that's an unusual use of language?
Easha Anand: So I do, Your Honor, and I think that's particularly so in this case because of the kind of validity point I've been making. So that is to say when in the -- when Official 1 the initial document is invalid --
Justice Alito: No, no, I'm not talking about the -- the intricacies of this statute. I'm just talking about ordinary language. I could give you many examples of exactly the same thing. It doesn't seem to me -- you -- you have an interpretation of change, but do you really want to say that this is outside of the realm of -- reasonable realm of possibility that people can talk about a change in that way?
Easha Anand: So I don't know if it's outside of the reasonable realm, but when combined with the language from Pereira, sort of not quite holding but clearly sort of central to the discussion is this interpretation of the exact same language, and when combined with the other structural clues that an NTA is central to the whole administration of this statute, I think our interpretation of "change" is the better one.
Justice Jackson: How do you respond to the government's suggestion that the NTA is really not central? I mean, the government says we -- we are looking at the statute and it says, Official 1 you know, we can get an in absentia removal order if we have issued (1) or (2). And so I guess the government's point is that suggests that (1) is really not pivotal in the way that you are putting forward.
Easha Anand: So I think that's wrong, Your Honor, for two reasons. The first is that the "or" in the in absentia context doesn't define the relationship between (a)(1) and (a)(2). That's done in the statute defining those two provisions. And so, again, to go back to the voter registration hypothetical, you could have a sentence saying, you know, send the voter the primary ballot for the party listed in their voter registration form or their change of party affiliation form. That wouldn't mean that somehow the voter registration form is irrelevant just because you have the word "or" in that sentence. And so I think what you have to do is look at paragraphs (1) and (2) and the relationship between them, and it's clear both from the mandatory language of paragraph (1), from the fact that, as this Court explained in Official 1 Niz-Chavez, it's the one place that tells you all the information you need to defend yourself at a removal proceeding, and the fact that (a)(2) is structured as a change or a supplement, that those two documents are not interchangeable.
Justice Barrett: Ms. Anand, let -- I -- I want to make sure I understand your answer to Justice Kagan about change. So you're saying that, you know, just because you file a change of party affiliation form doesn't make your initial voter registration valid. I -- I -- I get that. But, in the statute, it says, "change of time or place of proceedings." So it's not, you know, referring generally. I'm just wondering where you get the statutory hook, because that presumes that there is an NTA. But, if it's defective in some way, if, as Justice Kagan said, we take the defect in time and place out of it, why couldn't it be that there is an NTA that's defective in some way, but the statute imposes an obligation on the non-citizen who knows the time and place he's supposed to show up to make an appearance at Official 1 that proceeding and raise whatever objection there is to the defect?
Easha Anand: So --
Justice Barrett: And -- and maybe -- maybe the objection -- and I'm thinking of analogy to a Rule 55 civil, you know, default judgment proceeding. It may well be that whatever objection that the non-citizen raises at that point is fatal to the government's case. You know, maybe it's missing some vital piece of information. Maybe it can be remedied if it's omitted the right to counsel by giving him time to obtain counsel. If there's some problem in the description of the charges, the grounds for removal, then maybe the entire thing has to be dismissed and the government has to start again. But why wouldn't it be consistent with the statutory scheme for the non-citizen to have to show up to the removal proceeding and register whatever objection the non-citizen has? I'm not saying that that's right, but it seems to me -- I -- I just want to understand why that's ruled out on your understanding of the statutory language. Official
Easha Anand: Sure, Your Honor. So the statute doesn't ask about notice generally or notice of the time of the hearing. It asks about notice in accordance with the specific statutory provisions. And that's a contrast to the pre- --
Justice Barrett: Or, though, right?
Easha Anand: So that's correct. But our position is that there's been neither a paragraph (1) notice nor a paragraph (2) notice.
Justice Barrett: But I guess I don't understand why -- where in the statute you can say there has not been a paragraph (1) notice if there's been a defective paragraph (1) notice? There's been a paragraph (1) notice. And, here, I'm not talking about the blank piece of paper. I'm just saying it's missing some piece of information other than date and time. Why isn't that just a defective NTA?
Easha Anand: So I think that's sort of the square holding of Pereira. So, again, Pereira reserved the question of missing other pieces of information, but the statute puts them all on par. And Pereira says it's not just that this is a deficient document. It says no notice Official 1 to appear has been served, right? That's the language that Pereira was interpreting.
Justice Barrett: But stop -- well, I'm sorry. Go ahead.
Easha Anand: So -- so Pereira is interpreting has a notice to appear been served under paragraph (1). It says no notice to appear has been served if it's missing one of these pieces of information.
Justice Sotomayor: Counsel, can I -- I -- I'm not cutting you off?
Justice Barrett: No, I'm done.
Justice Sotomayor: I -- then I'll jump into that. I have -- I want to follow up on Justice Barrett's question because she seems to be seeing a difference between a jurisdictional flaw and a claim processing flaw, which is what Mr. McCloud has been calling this. And I do think that we -- you have to address that question. It seems to me that the clear holding of our precedent -- prior precedents is that it's jurisdictional, that if you don't have a proper notice of appeal -- of -- of appearance, that that's a jurisdictional defect. They can't order you -- they can't Official 1 invoke the stop-gap rule, but they also can't order you removed until they provide you with the proper document, correct?
Easha Anand: So I think that's right. I want to be a little bit careful because I think "jurisdictional" is a little bit of a slippery word.
Justice Sotomayor: It is.
Easha Anand: So --
Justice Sotomayor: That's the problem.
Easha Anand: Right. So --
Justice Sotomayor: So -- but so is using claim processing in this kind of context.
Easha Anand: So our position is that if you show up at the hearing, as Justice Barrett articulated, you can say this was defective. And until the government cures that defect, they can't go forward. Congress also provided an express remedy for where there's a defective notice and you're removed in absentia. There is no remedy in the statute for where there's a defective notice and a removal order was entered after a hearing. So we're not saying that someone who attended their hearing, Official 1 had the chance to object to the notice to appear, and was nonetheless removed gets to reopen because Congress hasn't provided that remedy.
Justice Sotomayor: All right. So --
Easha Anand: Congress has, however, in --
Justice Sotomayor: -- could -- before -- I'm sorry. Before we end -- you end today, I -- I want to take head-on the draconian consequences that a ruling in your favor that the government is painting, and I want you to answer that. So -- but I cut off a colleague who had --
Chief Justice Roberts: No, we may as well go with that now. (Laughter.)
Easha Anand: So -- so two responses, Your Honor, right? So the first is the government came to you in Pereira and Niz-Chavez and also articulated a parade of horribles. And this Court said those sorts of raw consequentialist calculations have no place, particularly where, as Justice Kagan noted, those consequences are a function of the Official 1 government ignoring the text of the statute over many cases and many years. The second is, you know, I -- I -- I don't want to dispute that there will be an increase in the volume of these motions, but I do want to be clear about who exactly has an incentive to file them. Remember, if you win on reopening your in absentia removal order, all you get is another hearing, right, even if you're successful in clearing all the hurdles. And at that hearing, you have to prove that you're able to remain in the U.S. And so, you know, for many, many non-citizens who have no pathway to staying in the United States, it's very unlikely that they're going to come forward and file one of these motions to reopen because the best they get is another hearing.
Chief Justice Roberts: Now, counsel, did I understand you to say that if an -- I mean, we've heard a lot of talk about deficiencies in -- apart from the -- the notice and that being one of the problems, but we -- you -- you -- you should get original notice rather than simply later notice, even if you Official 1 comply with the later notice. It -- it -- is it a harmless error situation if there have been no changes in the rest of the NTA?
Easha Anand: So, Your Honor, I think that the statute doesn't contemplate that, right? The statute asks not just for notice or notice of the information listed in paragraph (1) but notice in accordance with these provisions. And prior to 1990, remember the scheme was this sort of case-by-case adjudication. So the statute said "notice reasonable under the circumstances." And what Congress did was it said, rather than that kind of case-by-case adjudication, did the non-citizen get enough notice, we're going to put the cards in the government's hand.
Chief Justice Roberts: Well, but let's just say that there has been no change in the notice. I suppose, if you want to challenge the notice as a categorical matter across the board of all these proceedings, you could. But I thought you said that if there has been no change, in other words, other than a Official 1 change in the time and the place, but the rest of the NTA is -- is the same, that that individual would have no -- no claim at that point.
Easha Anand: So, just so I understand the hypothetical, the -- the -- the notice to appear is compliant?
Chief Justice Roberts: Except for, you know, the reason that -- the reason there is a later, a new notice, that's the only situation in which it is -- the only aspect in which it's non-compliant.
Easha Anand: So --
Chief Justice Roberts: And the person -- and the person shows up at the time.
Easha Anand: The person shows up at the time, so they have a non-compliant -- they have a TBD NTA that the -- right?
Chief Justice Roberts: Yeah.
Easha Anand: So I think, at that point, they can say -- you know, they won't get much for it, but they can certainly say you can't proceed until you give me a compliant NTA. The government has to print out a new one.
Chief Justice Roberts: No, I mean Official 1 they just said here's the -- the -- the NTA was compliant in every respect except that we had a TBA rather than the actual time and place. You got notice of the time and place. You showed up. What?
Easha Anand: You show up and you say my NTA was not compliant. The government has to give you a new one. It has to wait 10 days before they can remove you. Now it's the same thing --
Chief Justice Roberts: It was not compliant in that it didn't have a time and place. But then it was. There was a time and place. And you say he has to show up and say, I didn't get a time and place in the original one; even though I got a time and place in the second one and showed up, I can complain that I didn't get one in the original one?
Easha Anand: So I think that's the square holding of Niz-Chavez. Niz-Chavez says two different documents that add up to all the notice requirements under paragraph (1) is still not a paragraph (1) notice. That's the holding of Niz-Chavez. And in this case, the government's Official 1 position is even more extreme because they're telling you it doesn't even matter if the non-citizen never got all of the notice in paragraph (1).
Chief Justice Roberts: Yeah, I know that's what they're telling us, but I'm addressing a case which I -- I would suppose would be a very common one where there's no objection other than that I didn't get the time and notice in the first place. There's been a lot of talk, well, they don't tell you there's a right to counsel, they don't tell you this or that. What if they told you all that in the original one that you got, but it didn't have a time and place; then they come back and say, well, here's the time and place, you show up, and they say, well, what's -- what's your objection, and you say that the objection is that I didn't get the time and place originally, even though I got it later and here I am?
Easha Anand: So I think that's right. I think that's the -- the sort of square holding of Niz-Chavez. It says that those two documents don't add up to a paragraph (1) notice. I'll hasten to add, though, remember this isn't just Official 1 about eligibility to move to reopen. There are other points in the process where the question of whether or not the --
Justice Kavanaugh: But your -- your answer to the Chief Justice makes it clear, I think, but correct me if I'm wrong, that you would be better off not showing up.
Easha Anand: I don't think so, Your Honor, because remember, if you don't show up, all the government has to do at that point is say, oh, that's right, I didn't have a proper NTA. Here -- here's, I'm printing it out, I'm mailing it to the non-citizen with the time and place. Ten days later I can remove you in absentia. So either way, all you're buying yourself is the government reprinting this piece of paper and waiting 10 days to remove you.
Justice Jackson: And --
Justice Kavanaugh: But -- but the removal --
Justice Alito: I under --
Justice Kavanaugh: -- in absentia will be -- can't happen under your theory.
Easha Anand: Well, the removal in Official 1 absentia can happen if the government prints out the NTA, again, fills in the time and date and then waits 10 days.
Justice Kavanaugh: They start the proceedings over again --
Justice Jackson: But the removal in absentia can't happen if the person shows up, right? I mean, the -- the reason why we're in absentia world is because they don't show up. So I guess I'm confused about the Chief Justice's hypothetical and how it relates to this statute or this circumstance that we're talking about. I thought the -- I thought the -- the -- the sort of premise of where we were was we're in a situation in which the person isn't there and the government gets removal in absentia as a result.
Easha Anand: And that's exactly right. I was just trying to clarify that I don't know how much of this -- sort of bizarre incentives point. First of all, of course, the government can just issue a compliant NTA upfront. If they haven't and the non-citizen doesn't show up, they can send ICE out to arrest the person. Official 1 If they choose not to do that, they can print out the compliant NTA then and there, put it in the mail, and then they can get their in absentia.
Justice Kavanaugh: Well, that I think the --
Chief Justice Roberts: Well, I thought the proposition that I was simply trying to suggest that your argument leads to an absurd result if what it says is that everything's the same, except you didn't get the notice originally and the fact that you got a later notice, you're saying your argument would still be the same.
Easha Anand: That's exactly right, Your Honor. I think that's a function of the government flouting the statute, though, right? The statute was not actually designed for a situation in which the government systematically puts TBD instead of the -- the sort of date and time of the charges. It was designed for the kind of one-off mistake, you put the wrong person's name on this or sent this to the wrong address. And so, you know, what Congress Official 1 thought it was doing was coming up with a scheme that put all the cards in the government's hands. It said we're not going to ask on a case-by-case basis did the non-citizen have enough notice and allow them to say I was confused, I got this document and not this document. We're just going to give the government all the power. All you need to do, government, is put these seven pieces of information on one piece of paper.
Justice Kavanaugh: But Congress was concerned --
Justice Jackson: Maybe --
Justice Alito: Well, as to what Congress thought it was doing, you filed a brief on behalf of Mr. Singh. Are you able to address the situation of Mr. Mendez-Colín?
Easha Anand: So, yes, Your Honor.
Justice Alito: All right. So, in Mr. Mendez-Colín's case, his removal proceeding began in 2001, and after that, he showed up at numerous hearings, the dates were changed. And you say Congress would have wanted him at this late date to be able to reopen his removal proceedings because he didn't get a Official 1 compliant NTA back in 2001?
Easha Anand: Yes, Your Honor. Congress expressly said at any time, in contrast to numerous other provisions of allowing --
Justice Sotomayor: Counsel, that -- I think there's a difference between the right to make a motion to reopen than to have it reopened. Are you arguing that if there was a deficient notice in this situation under (a)(1), that the Board has to reopen, or does it have the discretion to consider a forfeiture or a waiver argument?
Easha Anand: So certainly, Your Honor. There's several provisions outside the scope of the question presented in this case that can deal with any sort of gamesmanship. So, as Your Honor noted, there's equitable doctrines. The government can raise waiver, forfeiture, estoppel. There are doctrines -- there's statutory provisions about the subsequent hearing. So, for instance, under 1229a(b)(7), if the -- if the non-citizen had oral notice of the time and place of the hearing, they aren't eligible to apply for Official 1 various forms of discretionary relief.
Justice Alito: Well, counsel, could you answer the question that I -- I don't think you had -- really had a chance to answer the question that I asked, which is whether -- you talked about what Congress thought it was doing, and my question was, do you think Congress really thought it was doing what you are claiming should be the result in Mendez-Colín's case?
Easha Anand: I think that Congress didn't anticipate the government would ignore the text of the statute. The reason that Congress put in the "at any time" hook is because they imagined these would be one-off circumstances where something gets lost in the mail or the government makes a typo and so switches two non-citizens' paperwork. They were not imagining sort of systematically ignoring the statute for many years. And so, yes, at this point, the statute probably leads to results Congress didn't intend, but that's a function of the government flouting the plain text of the statute and shouldn't be -- shouldn't have any bearing on Official 1 your reading of the remedial provision.
Justice Alito: Well, as to the plain text of the statute, we've now had, like, an hour and 17 minutes of argument, and virtually nothing has been said about the plain text of 1229a(b)(5)(A). Pereira and Niz-Chavez were literal interpretations of the statute. Now there's an answer to what I'm going to say, but I'll get to that.
Easha Anand: Okay.
Justice Alito: But, if you read the provision I just mentioned literally, you lose, right? Any alien who after written notice required under paragraph (1) or (2) has been provided to the alien, okay, notice under (2) was provided, right?
Easha Anand: So we -- we disagree with that. So we don't think notice under (2) was provided because (2) is a supplement to a valid (1). And so, without a valid (1), you can't have a paragraph (2) notice. So our position is that neither notice in accordance with paragraph (1) --
Justice Alito: I'm just talking about the literal language of the statute. I'm not Official 1 talking about what was held in Pereira or Niz-Chavez, which concerned very -- a -- a different question. You keep saying they held this, they held that. What they held had to do with the stop-time rule. Just the literal language of this, that's against you, right?
Easha Anand: So I disagree because we think there's been no paragraph (2) notice. So you can't have notice required under paragraph (1) or (2) if you've neither gotten paragraph (1) notice -- that's the government's position in this case -- nor paragraph (2) notice, which is our contention about how you read paragraph (a)(2).
Justice Kavanaugh: Your position then is a paragraph (2) notice isn't really a paragraph (2) notice if there was not a paragraph (1) notice that was compliant?
Easha Anand: That's correct.
Justice Kavanaugh: And where does that come from in the text of the statute?
Easha Anand: Two pieces. First is the word "change," which, as we've explained, we don't think encompasses the difference between TBD and March 15th. The second is it's a change Official 1 of the time and place of such proceeding. So, again, this is my voter registration hypothetical. If you never filled out your voter registration form, your change of party affiliation form doesn't -- is -- is not valid either.
Justice Kagan: Your argument, I think, treats the following two people differently. And that might be just, well, yes, it does, and we're living in this world where this is a strange statute because the government has been out of compliance for so long and it leads to some kind of strange results. But I'll -- I'll tell you that I think that this is a kind of strange result and I want to ask you to -- to comment on it, which is one person gets (a)(1) notice that is perfect and it says January 15th and then later gets (a)(2) notice saying, mhmmm, let's make it June 15th instead. Now the second person gets (a)(1) notice that is perfect except that it says to be determined, and then there's a later (a)(2) notice that says, okay, here's the new notice, June 15th. Official 1 Now I understand your view as to why the statutory text makes those two people different, but, you know, to go back to the Chief Justice's point about sort of, huh, like, why are those two people in any different situations with respect to anything we care about? Why does one have the ability to reopen and the other does not?
Easha Anand: So, Your Honor, Congress was trying to address this problem in gross. So, in an individual case, there may not be much of a difference, but in general, Congress found that these TBD provisions in the notice to appear, remember, that's the one document that actually gets handed to the non-citizen, right? And so what Congress found is, if you put a date and time in the notice to appear, there's at least one time where the non-citizen knows I have to be at immigration court, I can figure everything else out. If you only put a "TBD" in the notice to appear, what Congress found is the subsequent notices have a hard time getting to the non-citizen. And so the non-citizen never has a date and time certain they have to show up. Official
Justice Kagan: I'm not sure that the -- that the statute does suggest that. I mean, the statute allows for, again, assuming you have perfect (a)(1) notice, you can have an (a)(2) notice and then you can have another (a)(2) notice and another (a)(2) notice, and all of these things are extremely difficult for any non-citizen to figure out, and the statute appears not to care about that. So why should the statute care about the difference between a "to be determined" and a certain date?
Easha Anand: So I think Congress assumed that the government would do its best to hold the hearing on the date in the NTA and only use the notice of change if it actually had to change the date. But you're right, in some cases, potentially, you know, a non-citizen who gets a TBD notice and a non-citizen who gets a notice with a date and time are similarly situated. But this Court's holding in Pereira and Niz-Chavez is, even if Congress's judgment was off on this, even if in many cases it doesn't make a difference, Congress has Official 1 determined that what makes a valid NTA is the inclusion of these seven pieces of information, one of which the government didn't include here. But --
Justice Kavanaugh: I think the government's broad argument is it's very odd when someone gets notice of the time and date of the hearing and skips it intentionally, flouting the system, thumbing your nose at the system, and then comes back when they're caught and says, oh, that removal in absentia was no good. Why? Oh, because I didn't have notice of the time and date of the hearing, when we know -- so I think that's the government's kind of overarching concern about reading the statute your way.
Easha Anand: Sure, Your Honor. So I think that the problem is you can't just look at this provision in isolation, right? So what Congress thought it was doing was it was giving the government all the cards. If you don't want -- if you don't want someone to skip the hearing, just put these seven pieces of information on the notice to appear, and then they can't skip the hearing. Official 1 There're other places in the scheme that allow for consideration of exactly the kind of fault analysis you're talking about. So, for instance, you know, if you get to reopen your hearing, you may be ineligible for various forms of discretionary removal under 1229a(b)(7) if you're that person who gets, you know, notice -- oral notice of the date and time of the hearing and just doesn't show up. As some of the Justices have alluded to, there may be some residual discretion embedded in the "may" in (b)(5) that gives the IJ some discretion. All we're talking about is the eligibility criteria to even be able to file a motion to reopen. And at that stage, Congress didn't ask about notice generally, notice of the time of the hearing. It asked about notice in accordance with these two provisions that prescribe a particular format for the information.
Chief Justice Roberts: Thank you, counsel. You said that Congress thought the government would do its best. I mean, as a practical matter, is it possible for the Official 1 government to be able to put in the orders a time that they'll stick to? I mean, is -- there's a reason they say, you know, TBA or TBD, right? And yet, you seem to think that we ought to analyze it as if the facts on the ground are not what they are, which may be right. I mean, if Congress doesn't like it, maybe they can change it. But it -- it seems to me, at -- at least in terms of practicalities, to say, well, they ought to put the time on when they issue the order, and if they don't, all these consequences are going to follow. The government makes the argument that, well, there are a lot -- they're just not able to do that. And if there's a reading of the statute that makes more sense or at least sense to deal with the situation on the ground, is that something we should consider?
Easha Anand: So I think the -- the short answer is no, but I also want to push back on the premise of the question. So no, again, Pereira and Niz-Chavez, the government gave you the same arguments, and this Court said --
Chief Justice Roberts: Yeah, but, you Official 1 know, Pereira and Niz-Chavez, of course, dealt with an entirely different question. So --
Easha Anand: Sure. So --
Chief Justice Roberts: -- push -- push back on the premise --
Easha Anand: On the premise of your question, following Pereira, as my friend on the other side has told you, the government has been able to, in the mine run of cases, put dates and times in these notices. And the immigration judges' brief tells us that there was until 2014 a scheduling system that as far as these former immigration judges understand, had the ability to schedule these date and time of the hearings. So that evidence that prior to 2014, there was a scheduling system, post-Pereira the government's been able to do it, strongly suggests that actually the government has had the ability to do this and has chosen not to, despite knowing, as this Court put it in Niz-Chavez, since 1996 that this was a requirement.
Chief Justice Roberts: Do you have any idea how often the -- when the government puts in an original time that that time sticks Official 1 or hasn't been extended later on or --
Easha Anand: So I -- I don't have those numbers, Your Honor. But I'll note that prior to 1996, Congress gave the government the option, right? It said you could put the -- the date and time in the order to show cause, which was the predecessor to the NTA, or somewhere else if you couldn't do it. And in 1996, Congress made the decision that it was no longer going to kind of excuse the government from putting the date and time in the initial document, and it did that with a full understanding, right, the government testified at that hearing, of the logistical problems of doing so.
Chief Justice Roberts: Thank you. Justice Thomas? Justice Alito?
Justice Alito: If the -- the date that the government puts in an NTA is sort of an aspirational date, but in a good percentage of those cases, they end up having to change the date, is that -- is that system better for non-citizens than a system that would tolerate the TBD in the initial NTA? Official
Easha Anand: So Congress made the determination it was better. And I think that's because of what I said to Justice Kagan; namely, the NTA is the document that's generally handed to the non-citizen. It's the one you know they got. And at the very least, if they have some date and time, they can come to immigration court and find out that their hearing was moved; whereas, if they have no information about when and where to show up, except for a document that's mailed that may or may not reach them, then they may never clarify when their hearing --
Justice Alito: Well, that doesn't really answer the question, because they may be handed a document, an NTA with an aspirational date, but if they are later sent a document with a change, mailed to the address that they provide, you know, they're in the same situation.
Easha Anand: So, Your Honor, I -- I think that's precisely the argument that was made in dissent in Niz-Chavez.
Justice Alito: Yeah, I know. I'm not asking you about -- I know -- I'm not asking you Official 1 about Pereira and Niz-Chavez. I'm not asking that they be overruled, even though -- (Laughter.)
Easha Anand: Right.
Justice Alito: I'm asking you about what might make some bit of sense. But, if you just want to say Pereira and Niz-Chavez, we can leave it at that.
Easha Anand: Well, maybe I'll just cite the majority in Niz-Chavez, which said that we think another result is more likely still, which is that the government will develop its computer systems and technology to put forward dates that are likely to stick.
Chief Justice Roberts: Justice Sotomayor?
Justice Sotomayor: I -- all dates are aspirational. (Laughter.)
Justice Sotomayor: But, in the mine run of cases, the first appearance, like the first appearance when you're arraigned, you don't accomplish much substantively. There's not decisions on whether you're going to be convicted or not at an arraignment generally, Official 1 unless you're going to plead guilty. But, even then, time is usually given for people to confer with counsel and do other things. I'm assuming that this time -- TBA, as you explained, is just the start of the process, correct? You show up on that day and -- and you either say I'm going to get an attorney or you say I need more time to prepare or something else happens, correct?
Easha Anand: I think that's exactly right, Your Honor, and so the reason you need that date is, for instance, to be able to get an attorney, right? It's clear then that --
Justice Sotomayor: So the point being that a system that continues with TBA does every -- all the damage you're saying. It doesn't tell people where they should go to find out if something has been changed or to direct -- figure out where to hire a lawyer, given that I know that many of these TBAs are in jurisdictions different than where the alien was served, correct?
Easha Anand: I think that's exactly right. Yes.
Justice Sotomayor: All right. So Official 1 there's a lot of things to do with a date that you can't do with a -- don't happen with a TBA.
Easha Anand: That's exactly right. And, again, Your Honor, Congress was replacing a prior system that did this kind of case-by-case did the non-citizen get enough analysis -- did -- did the non-citizen get enough notice analysis. And what it said is, rather than having that scheme where we're going to ask on a case-by-case basis, we're going to come up with a blanket rule that's much easier to administer. Yes, in some cases, it's going to be underinclusive. Some non-citizens are going to be genuinely confused notwithstanding this form. In some cases, it's going to be overinclusive. Some non-citizens had all the information they needed, but -- but the government didn't comply with the text of the statute. But Congress determined that a rule was better than the sort of fuzzy pre-1990 standard.
Justice Sotomayor: Thank you.
Chief Justice Roberts: Justice Kagan? Justice Gorsuch?
Justice Gorsuch: This morning, we heard some arguments from the government about Official 100 policy. I had thought as I read the briefs in this case, unlike Niz-Chavez and Pereira, that the government hadn't rested on policy arguments as a basis for ruling in its favor here. Am I mistaken?
Easha Anand: I think that because the plain text of the statute counsels in our favor, the government's strongest argument is about the consequences to the immigration system, which we don't deny.
Justice Gorsuch: Did -- did they make that in their brief?
Easha Anand: I -- I believe they mentioned the hundreds of thousands --
Justice Gorsuch: Hundreds of thousands. Okay.
Easha Anand: -- of immigration cases in their -- in their brief --
Justice Gorsuch: Okay. All right. Fair enough. Thank you.
Easha Anand: Yeah.
Justice Gorsuch: And -- and we're asked to weigh -- and this discussion seems to me summing up at least in part kind -- two -- two difficult circumstances. One, on the other Official 101 hand, a suggestion that it's harmless or might be absurd to require the government to fill in a TBD. Congress -- Congress may have thought dates were important, but, nah, they're not that important. And on the other hand, the potential that an alien might -- might be removed from the country in absentia without any notice of the charges against him, his right to an attorney, the facts of his case, based on a compliant notice of change which just says show up on a date certain and you don't know where it's coming from necessarily or who, and then clear and convincing evidence in whatever form that the government may supply in a non-adversarial proceeding, a inquisitorial proceeding before its own employee and immigration judge. How do we weigh those two consequential arguments?
Easha Anand: Sure, Your Honor. So I think the short answer is Congress has done that weighing for you, right, that the date and time is situated no differently from the other information listed in paragraph (1). But even if we were to do the Official 102 weighing, as Your Honor noted, the first -- the first sort of downside is entirely within the government's control. The government can just put a date and time on the notice to appear, as it acknowledged nearly 30 years ago the statute required it to do. On the other hand, the non-citizen has no control over whether they get adequate notice. And so, in the hypothetical you're talking about where they're never told of the charges against them, they're removed in absentia without an opportunity to present their case before the immigration judge, that's a pretty draconian sanction. And there's a reason why Congress wanted to be -- to -- in absentia removal orders in particular to be able to be reopened at any time if there's inadequate notice. It's because Congress thought that downside of someone being removed with inadequate notice was so -- was so draconian and so severe that it gave this remedy to non-citizens.
Justice Gorsuch: Thank you.
Chief Justice Roberts: Justice Kavanaugh? Official
Justice Kavanaugh: You say inadequate notice, but they had notice.
Easha Anand: That's right, Your Honor. Again, Congress replaced the kind of reasonable notice or notice of the hearing regime with notice in accordance with paragraphs (1) or (2), right? So Congress thought that rather than doing a kind of case-by-case determination, we're just going to ask that the government comply with these two paragraphs of the statute. And, again, it thought that it was making things easier on the government. Rather than doing this kind of case-by-case analysis, we'll just let the government follow these precise instructions, put these seven pieces of information on a piece of paper, and we won't ask further. So --
Justice Kavanaugh: Well, Congress was concerned, correct me if I'm wrong, about people not showing up for their removal hearings, right?
Easha Anand: That's exactly right. And so it thought that the kind of reasonable notice, the sort of predecessor regime, gave too much leeway to immigration judges to say, well, Official 104 this person was confused, this person got this document and not that document. And so what it wanted to do was make these in absentia removal orders easier to obtain by giving the government all the power. Government, comply with the statute and we'll give you your removal order, and the non-citizen can't be heard to complain that the notice to appear was confusing.
Justice Kavanaugh: Thank you.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: Why wouldn't a non-citizen show up if a non-citizen gets a notice that says here's the time and place of your removal proceeding and, if you don't show up, the consequence is removal?
Easha Anand: So, Your Honor, I think the non-citizen does have every incentive to show up, among other things, if they don't, ICE can come out and arrest them and bring them to the hearing and the government can get an in absentia removal order fairly straightforwardly. Even if they messed up the NTA the first time, all it takes is at that hearing, you know, they Official 105 say, oh, the NTA is defective, let me print it out again, fill in the date and time.
Justice Barrett: Well, no, I understand there's incentives. I'm just talking about, like, when we're looking at the statutory language, I mean, Justice Alito pointed out the -- the text of this provision, and I guess I'm just -- you know, we're talking about the system that Congress set up, and I guess Justice Kavanaugh just pointed out that the notice that's most pertinent one might say here because we can imagine, you know, things that don't really matter. The Chief Justice gave you the hypothetical of, well, well listen, maybe it said TBD, but now they know the notice and they know everything else. So let's just put aside whatever defect might have existed in the NTA. If the non-citizen knows the critical information, here's the date and here's the time, and if you don't show up, you will be removed, even if the non-citizen has some questions maybe that the NTA didn't answer, why would it be draconian for Congress to say that that person could then be removed in absentia if they didn't show up? Official
Easha Anand: So, Your Honor, Congress could have had that scheme, right, and, again, pre-1996 had a scheme for --
Justice Barrett: Okay. No. I -- I understand that. But why -- I'm -- I'm -- I'm -- your -- your -- I understand your argument -- let's say that I disagree with your argument about the NTA and let's say that I think that maybe the removal proceeding is the place where the non-citizen could register objections to the NTA that may well render the proceeding invalid. Why wouldn't it make sense? I mean, because you've made arguments about the coherence of the scene -- scene -- scheme and said it would be draconian. Why would it be, if the alien has that information, not show up? Why -- why -- what would be the incentive other than, as Justice Kavanaugh said, just saying like, well, you know, I'm just not going to show up?
Easha Anand: In Niz-Chavez, this Court said that the NTA is akin to the indictment in a criminal case.
Justice Barrett: Okay. Official
Easha Anand: Right? And in a criminal case, we don't say just show up or else we're going to incarcerate you.
Justice Barrett: What -- what would the incentive be? So you're -- you're saying there's no incentive, it's kind of a technicality.
Easha Anand: I don't think it's a technicality any more than the indictment in a criminal case is a technicality.
Justice Barrett: Okay. So your whole argument really does turn on our interpreting (a)(1) the way that you're arguing that it has to have all of the information or it's totally invalid, that -- your whole argument really hinges on that?
Easha Anand: I think that's right. And I think the practical reason for that is the non-citizen shows up to be prepared to defend against what, from whom, on what statutory basis. That can't possibly be the scheme Congress intended to have the non-citizen show up at a date and time on pain of in absentia removal without even knowing what they're going Official 108 to have to argue over or why the government thinks that they're removable.
Justice Barrett: Well, the non-citizen could show up and say, I have no idea what the government is intending to proceed against me, so please, you know, I -- I need to know. And at that point, the immigration judge, they may say the government has given completely inadequate notice and so can't proceed.
Easha Anand: Or the immigration judge -- the statute's constraint against that happening is not just the immigration judge's discretion. It's you've got to do something like in a criminal case to let the non-citizen know what they're going to be facing when they show up.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: Yeah, can I just go back to Justice Kagan's question about the difference between a non-citizen who gets a complete NTA, one who doesn't, both get the change order that says come June 15th. You know, I was sitting here trying to figure out whether or not those people really Official 109 are different. And I guess, if both show up on June 15th, they're not different for the purpose of this scheme because there's no removal in absentia. If they come, the -- they're actually having the hearing, right? So we're not talking about a situation because I've -- the removal in absentia provision, one of the requirements is that the person doesn't show up. So we're not in the world of removal. Am -- am I right about that?
Easha Anand: I think that's right, although we -- I think we would say that under paragraph (1), which says a notice to appear shall be given in every removal proceeding --
Justice Jackson: Yeah.
Easha Anand: -- the -- the TBD person who shows up can still register an objection and say --
Justice Jackson: Yes, yes, yes.
Easha Anand: Yeah.
Justice Jackson: But I'm just talking about with respect --
Easha Anand: Right. Yes.
Justice Jackson: -- to the order of removal -- Official
Easha Anand: Right. It will not be an in absentia --
Justice Jackson: It's not going to be under in absentia authority --
Easha Anand: That's right.
Justice Jackson: -- because the person is there and both of those people are there, so we don't have that difference.
Easha Anand: Yeah.
Justice Jackson: And then, if they -- if neither show up, then the removal order gets issued and the difference is in whether or not one can move to reopen, the one who got all of the information can't, and the one who didn't can. Is that right?
Easha Anand: I think that's right with the -- one caveat, which is that we don't think that an IJ should enter the removal order in the first place under (b)(5)(A).
Justice Jackson: Yes, understood.
Easha Anand: Yes.
Justice Jackson: But let's say they do.
Easha Anand: Right. Yes.
Justice Jackson: The government, you Official 111 know, convinces them to --
Easha Anand: Yep.
Justice Jackson: -- even though the -- the -- the one who got the defective notice is there, the government -- in both cases, the IJ issues the removal order and the difference then becomes that one can reopen, you would say --
Easha Anand: Exactly. Yes.
Justice Jackson: -- because they got all the information and the other one couldn't. All right. So my question, I guess, is, is there anything odd or strange about Congress trying to enforce or police its requirements of the government with respect to notice in that way? So the difference is one can move to reopen, one can't, and so why couldn't Congress say, you know what, we're going to allow the person who didn't get all the information to reopen because we want to make sure that the government puts all the information in their notices per the statute?
Easha Anand: I think that's exactly right. As Your Honor put the point earlier, the Official 112 government gets a huge procedural advantage, right? It gets to remove someone without them ever getting a hearing. And in order to get that procedural advantage, the government needs to put the information in the statute that the statute requires.
Justice Jackson: Right. So it's not really odd that we -- they would be treated differently for that purpose if we're thinking that's what the Congress cared about, right?
Easha Anand: I think that's exactly right. The government --
Justice Jackson: All right. And so then the second question that I have is about the government's concern about people not showing up, and Justice Kavanaugh makes this point and I -- I take that point and I think that's right, but I wonder whether or not Congress actually is solving for that problem in a different way than the government is suggesting here, right? I -- the way I read this statutory scheme, Congress is allowing people who don't show up and who have an order issued against them in absentia to actually move to rescind Official 113 that order under certain circumstances. So it's not as though they say -- that -- that we don't have a provision that allows the person who doesn't show up to do something. And the government here is saying: Well, what about all the gamesmanship of the person not showing up? I think Congress says, if you're going to remove -- excuse me -- if you're going to rescind, the burden is on you to show you never got the notice or that the notice was defective, you say, in this situation. The burden shifts to the person to get the order rescinded, and that's the way the Congress is solving for people gaming the system.
Easha Anand: I think that's exactly right. So it's not only the burden shifts to you. It's, remember, the government can fix all of this, right? The cards are in the government's hands. The government can, you know, issue a new NTA that day, and then you've got no remedy going forward. So it's a very risky -- you know, if you imagine the hypothetical non-citizen who says, oh, I caught the government with a TBD in Official 114 the notice to appear and I'm not going to show up, all the government has to do to fix that is, at the hearing where the non-citizen doesn't show up, they print out the NTA again, they fill out the date and time, send it to the non-citizen, and then they can get that in absentia removal order. So it's a -- it's a game that wouldn't get the non-citizen much benefit. And, as Your Honor noted, the question of (b)(5)(C)(ii) is about policing the government, right? The provisions in (b)(5)(C)(ii) are did the government turn square corners, did the government issue notice? We see that in the other part of (b)(5)(C)(ii), which is about non-citizens in government custody.
Justice Jackson: And there's a way to prevent the gamesmanship that we're worried about or that the government is worried about here because --
Easha Anand: I think that's exactly right.
Justice Jackson: -- because, if you actually did receive the notice, you're not going to be able to rescind. Official
Easha Anand: That's exactly right.
Justice Jackson: All right.
Easha Anand: The -- the cards are all in the government's hands.
Justice Jackson: Thank you.
Easha Anand: They can prevent any gamesmanship.
Chief Justice Roberts: Thank you, counsel. Rebuttal, Mr. McCloud? REBUTTAL ARGUMENT OF CHARLES L. McCLOUD ON BEHALF OF THE UNITED STATES
McCloud: Thank you, Mr. Chief Justice. I'd like to make one point about Pereira and then one point about the consequences of the other side's rule. As to Pereira, it is true that there are cases in this Court where the Court construes one statutory provision and that decision has the effect of resolving other statutory questions. Pereira is not that case. And it would be very strange to pre -- to treat Pereira as such a case when Pereira went out of its way to say that its holding was narrow and was confined to particular statutory provisions Official 116 that are not at issue in this case. So we don't think that Pereira resolves these cases, nor does Niz-Chavez. Finally, as to the consequences, the consequences here are not just the number of motions to rescind that might be filed. The larger problem is that the other side's interpretation of these provisions deprives them of any sort of rational force. There's no reason that Congress would have enacted the version of the provision that Ms. Anand just described, and I don't think you need to look any further than the facts of these cases to see that. In these cases, the non-citizens got every single piece of information that they were required to get not just under paragraph (2) but also under paragraph (1). They knew the charges, they knew the nature of the proceedings, and they knew that they had the right to counsel. And many of them had counsel. Mendez-Colín's case I think is a perfect example. In Mendez-Colín's case, by his own admission, the omission of time and place information in the paragraph (1) notice was Official 117 irrelevant, and it was rendered irrelevant over and over again by the provision of additional notice. So to say that a provision whose evident purpose is about creating a defense based on lack of notice applies to individuals who had notice of all of the information required under the statute, I think, is inconsistent with any rational understanding of what Congress was trying to achieve. Thank you.
Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:45 a.m., the case was submitted.)