Supreme Court Rules That Technical Flaws in Paperwork Can't Stop a Perfectly Good Deportation Order

AP Photo/Eric Gay

By a 5-4 decision, the US Supreme Court decided that if an illegal immigrant doesn't show up for an immigration hearing, they can be deported without further bureaucratic rigamarole. I know, I know, that should be self-evident, but this is where we are with enforcing our immigration laws. The decision is Campos-Chaves vs. Garland, one of three cases bundled together to decide what level of notice an illegal immigrant must have of an immigration court proceeding before the court's decision is valid. Campos-Chaves comes from the Fifth Circuit; the other two cases, Garland vs. Singh and Garland vs. Mendez-Colin, come from the Ninth Circuit. Alito wrote the decision and was joined in his defense of reading comprehension by Roberts, Thomas, Kavanaugh, and Barrett. Gorsuch joined the liberal wing in arguing that reading doesn't matter.

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Moris Campos-Chaves is an illegal immigrant from El Salvador who entered the US in 2005. He was arrested by Border Patrol agents and given a notice to appear for a deportation hearing. The NTA gave the address for the hearing but did not contain a date or time because Border Patrol agents can't schedule immigration court hearings. (Full text of decision.)

The Government followed up a few months later, sending Campos-Chaves a notice of hear ing that set the hearing date to be September 20, 2005, at 9 a.m. 

Campos-Chaves never appeared.  The Immigration Judge noted his absence and the lack of any explanation for it. Upon finding that “clear, convincing, and unequivocal” evidence established Campos-Chaves’s removability, the Immigration Judge ordered him removed in absentia.  App. to Pet. for Cert. in No. 22–674, p. 16a. 

Thirteen years later, Campos-Chaves filed a motion to re open his removal proceedings on the theory that he never received a proper NTA. He relied on our decision in Pereira v. Sessions, 585 U. S. 198 (2018), in which we held that “[a] putative notice to appear that fails to designate the specific time or place” of the removal proceedings “is not a ‘notice to appear under section 1229(a).’”  

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The other two cases are factually the same. While the Fifth Circuit ruled for the government, the Ninth Circuit held that the deportation proceedings were fatally flawed. The Supreme Court disagreed.

Today’s 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 provisions of law they allegedly violated.  See §§1229(a)(1)(A)–(E).  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. That gives the immigration judge a chance to reschedule the hearing to cure any prejudice from the missing information. But §1229a(b)(5)(C)(ii) does not allow aliens to seek rescission of removal orders in perpetu ity based on arguments they could have raised in a hearing that they chose to skip. 

While this is a welcome victory for sanity, the proof of the pudding is in the eating. This decision is utterly meaningless unless it results in illegal aliens being deported.

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