Illegal Alien Seeks to Stay on Hyper-Technicality

October 5, 2020

IRLI urges Supreme Court to put substance over form

WASHINGTON—On Friday, the Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief in the Supreme Court urging it to disallow an alien’s bid to stop his deportation on the ground that he received inadequate notice of his removal proceeding. The alien received notice, and attended the proceeding, but complains that his notice to appear was effectuated with two separate documents, rather than just one document.

According to federal statute, the Attorney General may withhold the removal of some aliens who have established a period of continuous presence in the United States. Such continuous presence ceases to accrue when the alien receives a notice to appear at a removal proceeding that contains statutorily required information, such as the time and place of the proceeding. In this case, the initial notice to appear did not state the time and place of the alien’s proceeding; that information was provided two months later in a notice of hearing. At that point, IRLI argues in its brief, the statutorily-required information was given, the notice to appear was perfected, and the alien’s period of continuous presence was stopped before it would have made him eligible for withholding of removal.

“A few circuit courts of appeal have gone hyper-technical on this notice question,” said Dale L. Wilcox, executive director and general counsel of IRLI. “In doing so, they elevate form over substance and in effect argue that when an alien is notified twice of his hearing, that is less notice than if he were notified just once. In truth, the statute is about what information the alien must receive, not how many documents may be used to convey it. We hope the Supreme Court resolves this circuit split by agreeing with the circuits that have shown common sense on this issue, and refused to give a pointless boondoggle to illegal aliens.”

 The case Niz-Chavez v. Barr, No. 19-863 (Supreme Court).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]