Supreme Court delivers migrants a win on stop-time rule

The U.S. Supreme Court gave migrants a bit of breathing room when it announced this week that federal immigration law requires notice of removal proceedings to come in a single document. The court’s decision in Niz-Chavez v. Garland, No. 19-863 (U.S. April 29, 2021), brought together Justices Barrett, Breyer, Kagan, Sotomayor, and Thomas under an opinion written by Justice Gorsuch.

At its most technical, the case focused on the “stop-time rule,” a provision of immigration law that stops the time that some migrants can count toward eligibility for cancellation of removal. Migrants who not lawful permanent residents can request cancellation of removal if they can show that they have ten years of continuous presence in the United States, among other requirements. The stop-time rule stops the clock on accumulation of that ten-year period upon a migrant’s receipt of a “notice to appear,” the document that formally starts removal proceedings in immigration court.

A separate provision of the Immigration and Nationality Act identifies required contents of a notice to appear, including the date and time of the next court date as well as the consequences of failure to appear. The government argued that the list of required contents can be given to the migrant in multiple documents over any span of time. In practice, this often meant that migrants received one document listing everything except the date, time, and location of their next court date. Later the government would mail a second document with that information, though that might be months or years later to an address where the migrant no longer lived. Niz-Chavez argued that all the required information must be included in a single document to constitute a notice to appear.

In its decision, the six-justice majority largely agreed. Congress, Justice Gorsuch wrote, adopted language “which suggests that the government must issue a single statutorily compliant document to trigger the stop-time rule.” The fact that doing this is a pain is no excuse. “If the government finds filling out forms a chore, it has good company,” Gorsuch noted. The end result is that non-lawful permanent residents will accumulate time towards the continuous presence requirement until DHS can inform them, in a single document, of the time and place of their next court date.

This is certainly a win for migrants. Given the existing backlog facing the nation’s immigration courts, today’s decision means that some migrants will add months or years toward the continuous presence requirement allowing them to ask an immigration judge for cancellation of removal. But getting before an immigration judge is no guarantee of victory. After that, it will be up to the judge to decide whether the migrant meets cancellation’s other requirements and whether the migrant merits receiving this form of relief from removal.

Today’s decision isn’t entirely surprising. In 2018, the court concluded that Congress had clearly defined what constitutes a notice to appear and DHS couldn’t avoid it. But true to form, instead of just complying with the statutory requirements, DHS refused to do that repeatedly, leading to many situations like the one that finally wound up before the Supreme Court. It would be reasonable to assume that now, twice chastened, the government will just do as Congress demands. Then again, I’ve watched DHS for too long to rest on assumptions.