Friday, April 30, 2021

Petty Sticklerism That Fortuitously Benefits An Undocumented Immigrant is Still Petty Sticklerism

 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.

The votes of Justices Breyer, Sotomayor, and Kagan are easy enough to understand. Undocumented immigrants have so few opportunities to prevail in the U.S. courts that the Democratic appointees may have seized on what is admittedly a technicality in order to mitigate an otherwise unduly harsh system. We might think of the these justices as applying something like an immigration-specific rule of lenity: construe statutory language that is at all unclear in favor of the undocumented immigrant potentially subject to the severe sanction of deportation.

What about Justices Gorsuch, Thomas, and Barrett? Let's mostly set aside Justice Barrett, given how new she is to the Supreme Court. Although Justices Gorsuch and Thomas are both very conservative ideologically, each is also a jurisprudential conservative whose methodological druthers sometimes take them wherever they lead. For example, Justice Thomas followed his jurisprudential views about federalism to dissent from the Court's decision upholding federal power over medical marijuana in Gonzales v. Raich. He has also questioned the Court's dormant Commerce Clause doctrine on originalist and textualist grounds, even though that doctrine aligns with his presumably free-market druthers. Likewise, Justice Gorsuch has voted for criminal defendants in Fourth Amendment cases. Most notably, he authored the Court's highly textualist opinion last Term in Bostock v. Clayton County, finding that the prohibition on sex discrimination in Title VII covers discrimination based on sexual orientation and gender identity.

I want to be clear that I appreciate the occasional liberal results for which Justices Thomas and Gorsuch (and apparently Barrett) vote based on subordinating their ideological preferences to their view of the law. But I also want to note a caveat and a warning. The caveat is that the occasional liberal results are only very occasional. Justice Gorsuch's and Justice Barrett's ideological druthers are quite conservative; Justice Thomas's are downright reactionary. In the vast majority of the contested cases that reach the Supreme Court--in which, pretty much by definition, the formal legal materials do not uniquely decide the result--they will vote conservative.

So much for the caveat. Now the warning: the occasional liberal vote by a conservative provides leeway for a great many more conservative votes. Bostock could be exhibit A here. When, as is very likely to occur shortly in Fulton v. City of Philadelphia, all three of Justices Thomas, Gorsuch, and Barrett subordinate the city's anti-discrimination policy to a broad conception of religious freedom, Justice Gorsuch will be able to say--with some accuracy--that he's not doing so out of any hostility to LGBTQ+ individuals, given his Bosock opinion. But that fact won't change the bottom line.

Indeed, we can see inklings of this phenomenon in Niz-Chavez itself. Early in his opinion, Justice Gorsuch seems to decry government bureaucrats who insist on petty enforcement of rules. He writes: "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." Later, in his conclusion, Justice Gorsuch returns to this theme: "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."

To what end does Justice Gorsuch make these observations? In Niz-Chavez itself, his point is that, given the government's petty sticklerism, turnabout is fair play. But while one can detect an undertone of disdain for sticklerism, Justice Gorsuch is making a point only about even-handedness: sticklerism, he says, should go both ways. Justice Gorsuch observes but does not condemn sticklerism when it works substantial unfairness to individuals. One can therefore expect that the next time litigants come to the Court complaining about how the government has invoked a technicality that costs them their property, liberty, or even their lives, Justices Thomas, Gorsuch, and Barrett will be likewise willing to enforce the technicality in the name of the rule of law.

In other words, for every Niz-Chavez in which an individual benefits from a technicality, we can expect three or more cases like Bowles v. Russell, authored by Justice Thomas. In that case, the petitioner filed his notice of appeal one day before the deadline he was given by the district judge. It turned out that the judge had miscalculated the allowable time, making the petition technically two days late. Too bad, said Justice Thomas for the majority, which was unmoved by the dissent of Justice Souter, who wrote: "It is intolerable for the judicial system to treat people this way . . . ." 

Perhaps it's tolerable for the judicial system to treat the government the same way, but in the long run more harm than good will likely come from the approach of Niz-Chavez.


kotodama said...

Thanks for this insightful posting Prof. D. Immigration admittedly isn't my usual thing, so I hadn't been following this case at all, but after digesting this post and skimming the decision, I wanted to offer a few impressions.

(1) Without endorsing all its aspects per se, I fully agree the O'Kav dissent has the far better of it. (It doesn't go to the merits of course, but as someone on VC pointed out recently, Gorsuch's smarmy, faux-humble writing style is also just intolerable.) The weird thing for me is, the majority opinion doesn't even seem all that pedantic or hyper-literalist. For example, the main thing addressed in the statute is just "written notice". (The name of the subsection is likewise simply "notice to appear") If you take that literally, it doesn't specify either singular or plural. Next, in the parenthetical, it says a notice to appear just "refer[s]" back to written notice. Again, taken literally, a simple method of referring back to something doesn't also modify that thing's meaning, so written notice remains as before—capable of being either singular or plural. Finally—and it's almost too obvious to mention—"a" does not literally mean one. The *literal* word for one is, well, "one"! Lawyers are even known to be paranoid sometimes and put "(1)" after that just to be extra sure. So, again, I'm not sure why the opinion would necessarily described as ultra-formalist or literal. And I felt the same way about Bostock too—even though I was of course agreed with and was happy about that result. [NB: I didn't make this comment (1) by design, but it's a nice coincidence anyway. :)]

(2) Related to (1), I'm not sure if Gorsuch was really "subordinating [his] ideological preferences" here. Maybe it's not true, but I believe one of those preferences is undermining and subverting executive agencies pretty much wherever possible. You can see where a similar phenomenon occurred in SAS Institute. The irony there is that he took a *non*-literal approach; he argued that "any" doesn't literally mean what it says—it means "all" instead. So I'd submit that Gorsuch is more concerned about getting the result he wants than what approach he uses to get it.

(3) Did anyone else reading this case get bad vibes of the supposedly hyper-formalist and literal argument that—mercifully—didn't carry the day in King v. Burwell?

(4) Related to (2), I likewise agree that it's a troubling opinion in the sense that later it could unexpectedly turn up to cause a lot of problems. But I find the buy-in from the 3 liberals not so understandable. As Bart's dissent even points out, the benefits for immigrants are just vanishingly small. While admittedly the likelihood may not be great, Congress could also step in to "fix" the statute, without also creating bad precedent in the process. And we all know there's basically no chance of Gorsuch and his camp reciprocating when the shoe's on the other foot. So the cost/benefit analysis just doesn't make that much sense to me.

Joe said...

I appreciate the warning and it might be helpful for the average person who wonders about Gorsuch and Thomas joining such an opinion.

As to how little benefit immigrants obtain, I will leave that to others. Just to toss it out there though. There is the rough "well Alito dissented" rule there. Plus, fwiw, I saw an immigrant lawyer at another blog deem the opinion a positive development.

I'm wary of Gorsuch general approach even when he rules in positive ways. Somewhat ironically given how his fans probably overlap with may of his critics, his style at time is a bit like Kennedy -- Gorsuch repeatedly favors some idealistic rhetorical flourishes and "this is really easy" sentiments.

His method is supposed to avoid Kennedy's alleged arbitrary approach (which Prof. Segall appreciates as honestly stating its values). But, in practice, that is somewhat dubious. The Roberts Court, from various things I have read, is apparently a "textualist Court." But, as Prof. Victoria Nourse (who should be on the Seventh Circuit, but I digress) noted in a recent Segall Podcast, there are limits to text.

Text is only so clear and interpretation will involve other things. Trying to determine what "a" means eventually will lead to contextual concerns. Yes, on average, in hard cases, how Gorsuch does it leaves something to be desired.

But, judicial nomination will lead to some wins/losses. Good thing his confirmation wasn't somehow tainted structurally!

Joe said...

ETA: I guess you can say Alito was a sly fox and knew the majority would be counterproductive long term.

Alito is a recent separate opinion also correctly noted textual canons are flexible. Even if we rely on textualism, it is only so restraining.

Thus, other factors come in, and Prof. Dorf's discussion is a good riff on something to consider. Even if the opinion is correct, often these things tend to be a mixed bag.

As I said after the election in 2016, we will have a lot of triage -- even victories are limited.

kotodama said...

No question there are at least some benefits for immigrants from this. If nothing else Niz-Chavez himself got an assist. The only surprise would be if immigrant advocacy groups *didn't* applaud the outcome. I don't begrudge them that at all of course. And if this decision ends up causing trouble down the road, it may not even be in an immigration case, so I don't fault them for being indifferent to that either.

People bagged on Kennedy both substantively and stylistically. And much of that was quite well deserved. But at least he was capable at times of showing a bit of thoughtfulness. I haven't really seen that from Gorsuch so far.

As I said, Alito's not doing it out of cleverness, he's just more reflexively anti-immigrant than anything else. I think he's the most results-oriented Justice around these days. And he's too shortsighted to ever consider whether a decision now ends up helping or actually hurting the long term cause.

kotodama said...

After more thought, I want to dial back (4)'s critique of the 3 liberals a bit. (We need a catchy name for them too. BSK? SoBreGan? KaBreyOr? SteLenIa? I'm open to better ideas!)

I still maintain the immediate benefits are marginal, and meaningful reciprocity is unlikely to be forthcoming later. But I should have given BSK more of the benefit of the doubt that they have a plan to avoid possible negative repercussions of the precedent down the road. In that case, the costs might well be zero or close to it. So on balance, it may indeed be worthwhile to just score the available W by signing on.

annonymous said...

Good day friends, I want to introduce a man that's richly blessed by his ancestors with the power to settle dispute in a relationship and other life problems, I was introduced to him by a close friend who also benefited from his service, with the help of Dr Ajayi my friend told me he became a successful business man, I was having issues in my marriage and want my wife back home because I miss her dearly after 3 months of separation so I employed the help of Dr Ajayi and sincerely Dr Ajayi astonished me with a wonderful job, because as I'm typing this my wife is back home and we are having a wonderful love life, you can also seek the help of Dr Ajayi by contacting him on Viber / Whatsapp : +2347084887094 or and i'm certain he will help you in your relationship or marriage.