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.