Justice Neil Gorsuch: ‘It turns out the federal government finds some of its forms frustrating too.’
The Supreme Court this morning ruled in favor of an illegal immigrant challenging his deportation, which the government has been trying and failing to do for eight of the 16 years that he has been in the country. The Court divided along an unusual line: Justice Neil Gorsuch’s majority opinion in Niz-Chavez v. Garland was joined by Clarence Thomas and Amy Coney Barrett, as well as by the Court’s three liberals; Justice Brett Kavanaugh’s dissent, siding with the government, was joined by Chief Justice John Roberts and Justice Samuel Alito. Broadly speaking, that division is characteristic of the more libertarian strain in the thinking of Justices Gorsuch, Thomas, and Barrett, and the more typically deferential-to-government approach of Kavanaugh, Roberts, and Alito. (It is also the first time Gorsuch has authored a decision with the name of Attorney General Merrick Garland in the caption).
The issue in the case was how strictly to hold the government to a legal requirement of notice for purposes of a time deadline. Gorsuch was unsympathetic, and his opinion reads like the episode of Seinfeld where Kramer finally turns the tables on the cable company for wasting his time:
Anyone who has applied for a passport, filed for Social Security benefits, or sought a license understands the government’s affinity for forms. Make a mistake or skip a page? Go back and try again, sometimes with a penalty for the trouble. But it turns out the federal government finds some of its forms frustrating too…[W]hen interpreting this or any statute, we do not aim for “literal” interpretations, but neither do we seek to indulge efforts to endow the Executive Branch with maximum bureaucratic flexibility…At one level, today’s dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. In this case, the law’s terms ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.
The specific question in Niz-Chavez comes from a provision of the sprawling Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Illegal aliens who were ordered removed can petition for discretionary amnesty if they meet certain requirements, including having been in the country for ten years. But could an immigrant stay ten years just by dragging out the deportation proceedings? In order to avoid that, Congress in 1996 added a rule that the ten-year residency period is only counted until the date “when the alien is served a notice to appear” in the deportation proceeding. The Court was asked to decide: does “a notice to appear” mean a single document that tells the alien about the deportation case and says where, when, and what to appear at? Or can the government send a series of forms that include that information in various places, and cut off the ten-year period without ever sending a single notice that says it all in one place? The question took on added importance after a 2018 decision rejecting the government’s claim that a “notice to appear” does not need to include the time and place of the hearing.
Justice Gorsuch concluded that “a notice” means one notice, not a series of them, as might have been arguable if the statute simply said that the government had to provide “notice”:
Everyone admits language doesn’t always work this way….[S]omeone who agrees to buy “a car” would hardly expect to receive the chassis today, wheels next week, and an engine to follow…Sometimes Congress’s statutes stray a good way from ordinary English. Sometimes, too, Congress chooses to endow seemingly familiar words with specialized definitions. But until and unless someone points to evidence suggesting otherwise, affected individuals and courts alike are entitled to assume statutory terms bear their ordinary meaning…
Critics of Gorsuch will notice that today’s many references to ordinary meaning and usage of language are in some tension with the wooden literalism of his Bostock opinion. His reading of the language also reflects a practical understanding of how notice works, as well as the Court’s longstanding tendency to enforce certain types of time limits (for example, the filing of a notice of an appeal) rigidly:
As written,…the statute allows the government to invoke the stop-time rule only if it furnishes the alien with a single complaint document explaining what it intends to do and when. We are no more entitled to denigrate this modest statutory promise as some empty formality than we might dismiss as pointless the rules and statutes governing the contents of civil complaints or criminal indictments. Just consider the alternative. On the government’s account, it would be free to send a person who is not from this country—someone who may be unfamiliar with English and the habits of American bureaucracies—a series of letters. These might trail in over the course of weeks, months, maybe years, each containing a new morsel of vital information. All of which the individual alien would have to save and compile in order to prepare for a removal hearing. And as soon as the last letter arrives, the alien’s ability to accrue time toward the residency requirement would be suspended indefinitely.
Justice Kavanaugh’s dissent argued that this was a ridiculous outcome: Niz-Chavez received all of the relevant information (the nature of the proceeding, and its time and place) in two documents rather than one, and had been in the country (illegally) for eight years when he received the second document. In his view, the Court’s decision could mean that notice was insufficient to stop the clock even if it arrived on the same day in two envelopes. (Kavanaugh also elaborated on more granular objections to the Court concluding that the phrase “a notice to appear” was not modified by a discussion elsewhere in the statute of the term “written notice.”) Kavanaugh is undoubtedly right that this is an unjust outcome for the government in this case and potentially other cases. More broadly, the immigration system can be absurdly slow-moving and inefficient in removing illegal immigrants from the country. But rules are rules, and it is heartening to see that the Court recognizes that the federal bureaucracy has to play by them, too.