*Rory Rightmyer
Moris Esmelis Campos-Chaves, native and citizen of El Salvador, arrived in the United States in January 2005.[1] Since then, he formed a family here, and is father to two U.S. citizen children.[2] He consistently pays his taxes and has no criminal record.[3] Shortly after arriving, U.S. Citizenship and Immigration Services (USCIS) served him a document informing him that he would need to attend a hearing to determine if he should be removed from the U.S.[4] This initial notice did not inform Mr. Campos-Chaves of the time or date of his hearing. That information arrived months later in a notice “changing” his hearing to a specific date and time. Mr. Campos-Chaves did not go to that hearing. Because of his absence, the immigration judge at that hearing ordered him removed “in absentia”—without his presence.[5] Now, more than a decade after entering the U.S., Mr. Campos-Chaves’ case is the centerpiece of a circuit split that raises questions of fairness when the government issues a defective notice to an immigrant.
This piece first introduces the legal framework providing notice to non-citizens[6] awaiting a hearing before outlining the arguments on either side of a circuit split straddling these two interpretations, and finally presents the rationale argued in a recently heard Supreme Court case that seeks to resolve this split.
I. Statutory Process
Title 8, Chapter 12 of the U.S. Code controls immigration processes.[7] This Chapter entitles non-citizens to a hearing prior to removal from the United States.[8] That hearing must be either in person or, with the consent of the parties, over video or telephone conference.[9] In addition, non-citizens must receive proper notice of this hearing.[10] Congress requires this “notice to appear” (NTA) to contain seven particular pieces of information, including the time and place where the hearing will be held.[11] Valid NTAs must present all seven items in a single document.[12] If the time or place is subsequently changed, the government must notify the recipient.[13]
However, our immigration system is severely backlogged.[14] Wait times for cases routinely exceed six months and can continue for years.[15] Because of this, many non-citizens first receive an NTA that lists the time to appear as “to be determined,” before receiving a second notice specifying the exact time and place.[16] This “notice-by-installment” schema has generated a fair amount of controversy[17] and courts have questioned the validity of an NTA with date and time set as “TBD” in nearly every circuit.[18]
Two Supreme Court cases have addressed this issue, and presented what should offer clear guidance for interpreting these statutes. The first, Pereira v. Sessions, decided that an NTA without a specific time or place was not valid under the relevant statute.[19] However, the Pereira court described its ruling as “narrow,” implying their logic only applies when determining timing for certain immigration procedures.[20] Three years later, Niz-Chavez v. Garland clarified that a valid NTA must contain not only a specific time and place for the hearing, but all of the relevant information within a single document.[21]
II. Circuit Split
In the years since, the circuit courts have tackled a new ambiguity originally touched on by Pereira but not yet fully resolved: whether a defective NTA, “changed” by a subsequent clarification, provides sufficient legal notice for an immigration judge to order removal of a non-citizen in absentia.
This question rests on semantic statutory interpretation and the definition of the word “change.”[22] The First,[23] Fourth,[24] Fifth,[25] and Ninth[26] circuits interpret Pereira and Niz-Chavez as laying out a statutory scheme that requires a non-defective NTA (one that includes all 7 required pieces of information in a single document) to be provided to the non-citizen before any in absentia removal order could be issued. Their argument is essentially that a date that has not been set cannot be “changed.” However, the Sixth[27] and Eleventh[28] circuits found that a subsequent notice of hearing can cure a defective NTA, “changing” a date of “to be determined” to a specific date.[29]
III. Possible Resolution
Singh v. Garland[30] and Campos-Chaves v. Garland[31] present particularly troublesome questions to immigration judges. In both cases, the government sent the non-citizen a defective NTA and a subsequent notice of hearing that “corrected” the defect. In both cases, an immigration judge ordered the immigrant removed in absentia after they failed to appear despite government notice setting the date and time of that hearing.[32]
The Supreme Court consolidated these two cases and heard oral argument for them on January 8th, 2024.[33] In their petition for cert, attorneys for Campos-Chavez argued that the disjunction in the circuit courts’ decisions creates fundamental unfairness, “if Mr. Campos-Chaves lived in California or Massachusetts, he could have reopened his removal proceedings and applied to stay in the United States . . . .”[34] The Supreme Court has the opportunity to resolve this issue, either by explicitly limiting the Pereira rule to its original context, or by expressly authorizing the “some assembly required”[35] form of notice accepted by the Sixth and Eleventh Circuits.
IV. Conclusion
While the respondent’s brief in Campos-Chaves highlights the meaning of the word “change,”[36] and Niz-Chavez includes an extensive discussion of the article, “a,”[37] the core of this ambiguity has less to say about the English language and more to say about balancing government efficiency against the importance of upholding principles of due process. Many similarly situated non-citizens await, defective NTAs in hand, unsure if they ever will, or already have, been sent a notice “changing” or setting the calendar for one of the most important court dates they will ever face. When the penalties for missing this date include removal from the U.S., separation from family, and a possible return to unsafe conditions, it may be better to incur a little bit of extra inefficiency to protect justice, fairness, and safety.[38]
*Rory Rightmyer is a second-year law student at the University of Baltimore School of Law, a Staff Editor for the University of Baltimore Law Review, and currently works as a student attorney at the University’s Immigrant Justice Clinic. Rory is a USAF veteran interested in exploring the complex legal issues surrounding the protection of human rights from individual, national, and global perspectives. The views expressed in this piece reflect their personal beliefs only.
[1] Brief for Petitioner at 15, Campos-Chaves v. Garland, No. 22-674 (U.S. Jan. 18, 2023), 2023 WL 361742, at *15.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] This article uses the term “non-citizen” to describe individuals whom the statutory language refers to as aliens. 8 U.S.C. § 1101(a)(3).
[7] 8 U.S.C. §§ 1101–1537.
[8] 8 U.S.C. § 1229a(a)(3).
[9] 8 U.S.C. § 1229a(b)(2).
[10] 8 U.S.C. § 1229(a).
[11] 8 U.S.C. § 1229(a)(1).
[12] Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021).
[13] 8 U.S.C. § 1229(a)(2). Notification of a change in venue or time for the hearing is commonly called a notice of hearing (NOH). Dragomirescu v. United States AG, 44 F.4th 1351, 1354.
[14] Muzaffar Chishti & Julia Gelatt, Mounting Backlogs Undermine U.S. Immigration System and Impede Biden Policy Changes, Migration Pol’y Inst. (Feb. 23, 2022), https://www.migrationpolicy.org/article/us-immigration-backlogs-mounting-undermine-biden.
[15] The Latest USCIS Processing Times – 2023, Boundless, https://www.boundless.com/immigration-resources/uscis-processing-times/ (last visited Oct. 23, 2023).
[16] See, e.g., Niz-Chavez,141 S. Ct. 1474.
[17] Id. at 1479.
[18] United States v. Mendoza-Sanchez, 963 F.3d 158 (1st Cir. 2020); United States v. Pszeniczny, 384 F. Supp. 3d 353 (2nd Cir. 2019); Guadalupe v. AG United States, 951 F.3d 161 (3rd Cir. 2020); Lazo-Gavidia v. Garland, 73 F.4th 244 (4th Cir. 2023); Aguilar-Reyes v. Garland, 2023 U.S. App. LEXIS 15892 (5th Cir. April 6, 2023); Aguilar v. Garland, 861 Fed. Appx. 45 (6th Cir. 2021); Alvarez-Espino v. Barr, 951 F.3d 868 (7th Cir. 2020); Apolinar v. Barr, 945 F.3d 1072 (8th Cir. 2019); Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020); Arias v. Barr, 821 Fed. Appx. 933 (10th Cir. 2020); Ajaj v. United States AG, 847 Fed. Appx. 759 (11th Cir. 2021).
[19] 138 S. Ct. 2105, 2110 (2018).
[20] Id. Specifically, Pereira was answering a question about whether a defective NTA “stopped the clock” for accrual of residency time when deciding whether removal would cause undue hardship. Id. at 2121.
[21] 141 S. Ct. 1474, 1481 (2021).
[22] Decisions tackling this case are full of paragraphs emphasizing the meaningful distinction between singular and plural terms, definite and indefinite articles, and conjunctive or disjunctive “ors.” See, e.g., id. at 1480 (“Admittedly, a lot here turns on a small word. In the view of some, too much.”).
[23] Laparra-Deleon v. Garland, 52 F.4th 514, 520 (1st Cir. 2022).
[24] Lazo-Gavidia v. Garland, 73 F.4th 244, 254 (4th Cir. 2023).
[25] Rodriguez v. Garland, 15 F.4th 351, 355 (5th Cir. 2022). But see Gudiel-Villatoro v. Garland, 40 F.4th 247, 249 (5th Cir. 2022) (stating that when the noncitizen failed to update their address with the government, no notice is required for an in absentia removal order).
[26] Singh v. Garland, 24 F.4th 1315, 1317 (9th Cir. 2022).
[27] Santos-Santos v. Barr, 917 F.3d 486, 487 (6th Cir. 2019).
[28] Dacostagomez-Aguilar v. United States AG, 40 F.4th 1312, 1314 (11th Cir. 2022).
[29] Many cases point to whether a noncitizen has provided an updated address to USCIS as a dispositive factor in deciding their outcomes. See, e.g.,Gudiel-Villatoro v. Garland, 40 F.4th 247, 249 (5th Cir. 2022). But see Lazo-Gavidia v. Garland, 73 F.4th 244 (4th Cir. 2023) (determining that a defective NTA, regardless of whether the noncitizen has updated their address with the government, does not provide adequate process to the respondent).
[30] Singh v. Garland, 24 F.4th 1315 (9th Cir. 2022).
[31] Campos-Chaves v. Garland, 43 F.4th 447 (5th Cir. 2022).
[32] Id. at 447–48; Singh, 24 F.4th 1315 at 1316–17.
[33] Campos-Chavez v. Garland, 2023 U.S. LEXIS 2801 (2023).
[34] Brief for Petitioner at 22, Campos-Chaves v. Garland, No. 22-674 (petition for cert. filed, Jan. 18, 2023).
[35] Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480 (2021).
[36] Brief for Respondent at 9, Campos-Chaves v. Garland, No. 22-674 (petition for cert. filed, Jan. 18, 2023).
[37] Niz-Chavez, 141 S. Ct. at 1480.
[38] The U.S. Supreme Court heard oral argument for Campos-Chaves on January 8th, 2024.
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