The literalness rule in Niz-Chavez promises more surprises.

Sunday, November 14th, 2021
By: Jonathan MontagJ.D.

 

There’s so much activity around “stop-time,” you’d think it affected a lot of people. Well, it does and it doesn’t. I’ve written about it before, like here  and here.

To refresh, for certain types of relief from removal, Cancellation for Certain Permanent Residents and Cancellation of Removal for Certain Nonpermanent Residents, there are time of residence and physical presence requirements. The stop-time rules are found at 8 USC § 1229b(d):

(1) Termination of continuous period. For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) except in the case of an alien who applies for cancellation of removal under subsection (b)(2), when the alien is served a notice to appear under section 1229(a) of this title, or (B) when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States under section 1182(a)(2) of this title or removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest.

(2) Treatment of certain breaks in presence. An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.

There has been lots of litigation about stop-time rules. In Barton v. Barr,  decided April 23, 2020, the Supreme court discussed 8 USC § 1229b(d)(1)(B), which I wrote about here.

At the time I wrote about Barton, I referred to 1229b(d)(1)(B) as the complicated part of the stop time statute and 1229b(d)(1)(A) (time stops “when the alien is served a notice to appear”) as the easy part. However, in recent years the Supreme Court has made decisions twice about Part A, in Pereira v. Sessions  in 2018 and Niz Chavez v. Garland on April 29, 2021. The issue in both cases is whether time stops if the alien is served with an incomplete notice to appear (the charging document informing an alien why the government is trying to remove him and the time and place they have to appear in immigration court). In Pereira the government served a Notice to Appear that lacked the time and place of the hearing. The Supreme Court held that the incomplete document did not stop time. In Niz Chavez the government served a Notice to Appear that lacked the time and place of the hearing and later sent a notice with the time and place of the hearing. The government argued that sending the notice of the time and place of the hearing made the Notice to Appear complete and at that point time stopped. Justice Gorsuch called it “ the government’s notice-by-
installment theory” in his decision. The Supreme Court nixed that theory, holding that when 1229b(d)(1)(A) discusses “a notice to appear,” it is discussing a singular document.

The Supreme Court held that the plain meaning of the stop-time statute cannot be re-interpreted, only a solitary, complete Notice to Appear stops time. As Justice Gorsuch put it in Niz Chavez:

At one level, today’s dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. In this case, the law’s terms ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him
with a single and reasonably comprehensive statement of the nature of the proceedings against him. 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.

In the realm of stop time, interpretations of the text of the statute, after two Supreme Court decisions (both, incidentally overturning two different non-literal circuit courts) are hyper-literal. Justice Gorsuch’s literal reading was not the only way to look at the case; three justices dissented. In the dissent, Justice Kavanaugh wrote, “I find the Court’s conclusion rather perplexing as a matter of statutory interpretation and common sense. I therefore respectfully dissent.” As for applying the literal meaning, Justice Kavanaugh wrote, “Ordinary meaning and literal meaning are two different things. And judges interpreting statutes should follow ordinary meaning, not literal meaning.”

So how will stop time evolve in this literal environment. Less than two weeks ago, the Ninth Circuit looked at stop time in Quebrado Cantor v. Garland.  In Quebrado Cantor, the non-citizen entered the United States in 2006. He was served with an incomplete notice to appear in 2011. In 2014, eight years after his entry in 2006, he received a final order of removal. Based on the law at the time, he was ineligible for Cancellation of Removal because the faulty Notice to Appear stopped time for him after five years in the United States (2011 – 2006 = 5). After Pereira, he filed a motion to reopen with the Board of Immigration Appeals arguing that his faulty notice to appear did not stop time, so he should be allowed to apply for Cancellation of Removal. The Board denied the motion, holding that while the faulty Notice to Appear did not stop time, the final order of removal stopped time. The Board acknowledged that 1229b(d)(1) stopped time for two reasons: (A) service of a notice to appear and (B) committing certain crimes. As for a third reason to stop time, the government discussed the basis thusly:

While the “stop-time rule” instructs that the period of continuous physical presence ends with the service of the notice to appear or the commission of certain crimes, it does not indicate that those are the only reasons the period of continuous physical presence may be deemed to end.

The Quebrado Cantor court disagreed, putting it thusly:

The stop-time rule operates as an exception to this otherwise unambiguous command, cutting short a nonpermanent resident’s period of physical presence in two specifically enumerated circumstances. § 1229b(d)(1). When Congress provides exceptions in a statute, it does not follow that courts [or, by implication, agencies] have authority to create others. The proper inference . . . is that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth.

With the entrenchment of the literal stop-time interpretation – one word is only one document and two reasons to stop time means only two reasons to stop time – other bases for stopping time should be considered wrongly decided and reversed.

Another basis to stop time was articulated by the Board of Immigration Appeals in 2002 in Matter of Romales-Alcaide. In that case, a non-citizen entered the United States in1984. In January 1993 and April 1994, he departed the United States under threat of deportation. On each occasion, the respondent remained in Mexico for a day or 2 and then unlawfully returned to the United States. The Board of Immigration Appeals decided that these departures, amounting to at most, four days, interrupted physical presence and stopped time. It said this notwithstanding the stop-time statute which states at 1229b(d)(2) that, “An alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.”

Addressing the literal meaning of the statute the Board wrote, “We reject his contention that the special rule set forth in section 240A(d)(2) [8 U.S.C. § 1229b(d)(2)] of the Act is the exclusive measure of what constitutes a break in continuous physical presence. We hold that a departure that is compelled under threat of the institution of deportation or removal proceedings is a break in physical presence for purposes of section 240A(b)(1)(A) of the Act.”

The Ninth Circuit agreed in Vasquez-Lopez v. Ashcroft, writing of the Board’s decision, “… the court (sic) concluded, § 1229b(d)(2) ‘does not purport to be the exclusive rule respecting all departures. Rather, as its caption announces, it addresses the treatment of “certain breaks” in presence, strongly implying that there can be breaks’ other than those which exceed the 90- or 180-day statutory limits.”

People knew in 2002 that Matter of Romales-Alcaide was a load of casuistry. In dissent, Board member Lory Rosenberg compared it to H.C. Andersen’s, The Emperor’s New Clothes, with everyone deluded that there was some compelling legal argument there.

It took a child to point out that the emperor had no clothes. It took the Supreme Court to point out that 1229b(d)(1) means exactly what it says. Will it take the Supreme Court to do the same with 1229b(d)(2) or will the teaching of the supreme Court compel immigration judges to reject Matter of Romales-Alcaide based on an intervening change in law? Whenever, at some point we should expect the Ugly Duckling dissent in Matter of Romales-Alcaide to transform into the beautiful swan of the law, as H.C. Andersen might have described it. Posted November 14, 2021.


 

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