by Michael C. Dorf
To qualify for discretionary adjustment of status to be able to remain in the U.S., a federal statute states that deportable non-citizens must show, among other things, that they have "been physically present in the United States for a continuous period of not less than 10 years." The same statute says that the clock stops running once the non-citizen receives "a notice to appear" containing various items of information. Because Augusto Niz-Chavez received some of that information in one mailing and the rest in another, he argued that receipt of neither mailing constituted a notice that sufficed to stop the clock, and thus he satisfied the 10-year continuous presence requirement. That argument is ridiculous.
Nonetheless, six justices bought it. Yesterday, Justice Gorsuch--joined by Justices Thomas, Breyer, Sotomayor, Kagan, and Barrett--wrote an opinion for the Court in Niz-Chavez v. Garland holding that a notice to appear means a single notice containing the relevant information, even if, as was true for Niz-Chavez, his receipt of the notice via two mailings rather than one did not prejudice him in any way.
One can imagine the shape a defense of such an odd ruling might take: Sometimes strict compliance with a rule might be unnecessary in a particular case but important over the long run. Notice requirements might function that way. For example, one might justify strict enforcement of a rule requiring personal service of process, even when a particular defendant received actual notice by mail, on the ground that the mail is not as reliable overall as personal service.
Yet that kind of justification is unavailable in Niz-Chavez. As Justice Kavanaugh (joined by Chief Justice Roberts and Justice Alito) argues persuasively in dissent, the practice at issue of providing notice in two installments--first a notice of the fact that the government is initiating removal proceedings followed later by a notice of exactly when the proceedings will occur--benefits recipients of notice. Under a 2018 SCOTUS ruling, the first notice does not stop the clock, so it does not prejudice recipients, but it does give them extra time to prepare for the removal proceeding. Accordingly, the ruling for Niz-Chavez rests on what is a technicality in all cases; the decision does not announce a rule that serves some broader purpose in other cases despite failing to serve such a purpose in this particular case.
So what is going on? Here I'll offer some hypotheses that lead to the conclusion that Niz-Chavez is at best foolish and arguably a wolf in sheep's clothing.