Campos-Chaves v. Garland:  In absentia removal orders cannot be rescinded if noncitizen received any notice to appear

By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender

Noncitizens must show they did not receive notice of their removal hearing either initially or of the changed date in order to rescind an in absentia removal order, the U.S. Supreme Court held June 14 in Campos-Chaves v. Garland.

The Immigration and Nationality Act requires that when the Government seeks to remove a noncitizen, it must notify them of the time and place of their removal hearing.

Title 8 U.S.C. Sec. 1229(a) sets forth two types of notice – an initial notice to appear (NTA) under paragraph (1), and “in the case of any change or postponement in the time and place” of the hearing, a subsequent notice of hearing under paragraph (2).

When a noncitizen fails to appear at the removal hearing after notice, they “shall be ordered removed in absentia.”

That removal can be rescinded, however, if the noncitizen can show they “did not receive notice in accordance with paragraph (1) or (2).”

Moris Esmelis Campos-Chavez was a citizen of El Salvador.  The Government sought to remove him and sent him – under paragraph (1) -- an initial NTA to appear at a date and time “to be set.”  Later, the Government followed that up – under paragraph (2) -- with a letter stating the exact date and time.

Campos-Chavez failed to appear.  The Immigration Judge ordered that he be removed in absentia.

Years later, Campos-Chavez moved to reopen his removal proceedings on grounds that he never received a proper NTA under paragraph (1).

The Immigration Judge and Board of Immigration Appeals denied relief.  They ruled that even though the first NTA was defective, the subsequent notice satisfied the statute.

The Fifth Circuit affirmed. 

The Supreme Court granted cert. to resolve a circuit split.

Holding

In a 5-4 opinion by Justice Alito, the Court held that a noncitizen must show he did not receive notice under either paragraph (1) or (2) in order to rescind removal.

Because Campos-Chavez received proper notice under paragraph (2), he could not rescind his removal.

“As always, we start with the text”, the Court said.  

In order to be eligible for rescission of removal, the statute states the noncitizen must show he “did not receive notice in accordance with paragraph (1) or (2)”.

“The word ‘or’ is almost always disjunctive” and “generally used to indicate an ‘alternative’”, the Court said.  “So here, [the statute’s] ordinary meaning is that either a paragraph (1) notice or a paragraph (2) notice can count as ‘notice in accordance with paragraph (1) or (2)’”.

The statute “does not require both paragraph (1) and (2) notice before an alien can be removed”, the Court said. “It requires only one.”

“Our conclusion that a single notice defeats recission … does not end the analysis, however”, the Court continued.  “We still must determine which notice the alien must show was lacking in order to have his in absentia removal order rescinded.”

“We hold that … ‘notice in accordance with paragraph (1) or (2)’ refers to the notice for the hearing the alien missed, and at which he was ordered removed”, the Court said.

“The only way to make sense of [the statute’s] reference to a single notice is for that notice to be the one that matters:  the one that informed the alien of the time and date of the hearing the alien missed, and at which he was ordered removed”, the Court said.

“The alien’s failure to appear is excused by his failure to receive a paragraph (1) or (2) notice only if that notice would have informed the alien of the relevant hearing”, the Court said.

The initial “paragraph (1)” notice that Campos-Chavez received was defective, the Court said, because it did not notify him of a specific date or time of his hearing.

However, the subsequent “paragraph (2)” notice that he received properly informed him of the date and time, and consequences of failure to appear.

The Court emphasized that its decision “does not mean that the Government is free of its obligation to provide an NTA.”

“That document has an important place within the statutory scheme because it contains information that aliens may need to present their case, including the conduct for which they are charged and the provision of law they allegedly violated”, the Court said.

“Although an alien who receives only paragraph (2) notice must still attend the hearing or face in absentia removal, he can raise issues regarding incomplete notice at that time”, the Court said.  “That gives the immigration judge a chance to reschedule the hearing to cure any prejudice from the missing information.”

“But [the statute] does not allow aliens to seek rescission of removal orders in perpetuity based on arguments they could have raised in a hearing that they chose to skip”, the Court concluded.

Dissent

Justice Jackson, joined by Justices Sotomayor, Kagan and Gorsuch, dissented.

She noted the Government had persistently sent defective notices to noncitizens “for years”, and that the Court had previously held that the Government failed to comply with the statute in two prior cases.  

“Today’s cases arise because the Government persisted with its practice of issuing facially defective NTAs in the wake of our two prior pronouncements”, Jackson said.

“But, apparently, the third time is the charm, for the majority now blesses the Government’s abject noncompliance with the statute’s unequivocal command.”

The Court’s holding “defies the plain text and context of the statute, sidesteps our precedents, and upends the careful in absentia removal framework Congress has crafted”, Jackson said.