The government and the rule of law


Three years ago, in 2018, the Supreme Court, ruling 8 to 1 in Pereira v. Session, determined that immigration officials failed to properly inform an Oak Bluffs man of his deportation hearing with a date and time. He had resided illegally in the U.S. after receiving a visitor’s visa in 2000, and remained after its expiration six months later.

His first notice simply said the date and time were “to be determined,” but when several months later, he received a second notice with that information, it went to the wrong address. He never received it. This decision upheld the rule of law.

And on April 29, 2021, the court built on this decision. It has now ruled that all the information on a so-called “notice to appear” concerning a deportation of an immigrant overstaying a visa must appear in a single document. The reason why these cases are crucial is because for over a century, federal law has allowed the U.S. Attorney General to permit nonpermanent immigrants of good character to remain if they have had a continuous presence in the country for at least 10 years. The clock stops, however, if the government serves them a notice to appear. This is known as the stop-time rule.

Undocumented immigrants residing in the U.S. must show that their removal would cause an exceptional and extremely unusual hardship to close relatives who are U.S. citizens or lawful permanent residents, and that they have not been convicted of even a low-level crime like driving while intoxicated. Otherwise, the law could trigger the stop-time. 

Both cases require the justices to interpret a statute, in this case the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. In other words, it was not a constitutional decision, but one based solely on how to read a law.

In Pereira, the court looked narrowly at whether a notice to appear must include a time and date of the hearing. The government officials claimed that the backlog of cases only allowed them to figure out the schedule at a future date, but they wanted to put people on notice that a hearing was upcoming. Writing for the court, Justice Sonia Sotomayor said, “If the government serves a noncitizen with a document that is labeled ‘notice to appear,’ but the document fails to specify either the time or place of the removal proceedings, does it trigger the stop-time rule? The answer is as obvious as it seems: No.”

In the recent case, Agusto Niz-Chavez received several notices to appear because the government now claimed, according to Justice Neil M. Gorsuch, a conservative jurist, writing for the majority, “supplying so much information in a single form is too taxing. It needs more flexibility, allowing its officials to provide information in separate mailings (as many as they wish) over time (as long as they find convenient).” This, he said, was unacceptable for one simple reason. The law spells out that a person must be informed of a hearing on a notice to appear, not several notices to appear.

In Niz-Chavez v. Garland, Gorsuch read the law in its plain language, literal form. He rejected out of hand the government’s argument that a notice would be too cumbersome if it had to contain all the information a person needed. These include the nature of the proceedings against the alien, the legal authority for the proceedings, the charges against the alien, the fact that the alien may be represented by counsel, the time and place at which the proceedings will be held, and the consequences of failing to appear.

But several notices do not trigger the stop-time rule, because “a lot here turns on a small word,” namely “a,” as in “a notice to appear.” In Pereira, the court used an analogy, repeated by Gorsuch, to show how silly “a notice” might be transformed into “several notices”: “Someone who agrees to buy ‘a car’ would hardly expect to receive the chassis today, wheels next week, and an engine to follow.” Gorsuch highlighted this analogy in his ruling.

Perhaps one of the most interesting aspects of this case is the lineup of justices who joined him. We are so used to the court dividing into its “conservative” and “liberal” wings, but not here: the conservative Gorsuch was joined by conservatives Clarence Thomas and Amy Coney Barrett and liberals Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.

In his dissent, Justice Brett M. Kavanaugh, joined by John Roberts Jr. and Samuel Alito, noted the government merely sent two notices to Niz-Chavez. But Gorsuch responded curtly that “words are how the law constrains power.” And if people “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.” Another great victory for the rule of law.


Jack Fruchtman, who lives in Aquinnah, taught constitutional law and politics for more than 40 years.


  1. I love Mr. Fructman’s incite! Thank you for your very interesting periodic reports.

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