What the right to proper notice means for deportation cases

The Supreme Court ruling in April in Niz-Chavez v. Garland is starting to trickle down to the lower courts. Immigrants whose first court appearance notice did not include a date, time, and location now have grounds for dismissal in their deportation cases.

Charles Krupa/AP
Lucio Perez poses at the front steps of his home, where he has lived with his family since March, on July 8, 2021, in Springfield, Massachusetts. Mr. Perez can now challenge his deportation case since his notice did not include the date or time of his hearing.

Just a few short months ago, Lucio Perez moved out of the western Massachusetts church he’d lived in for more than three years to avoid deportation.

Immigration authorities in March granted the Guatemalan national a temporary stay in his deportation while he argued to have his immigration case reconsidered.

Now, Mr. Perez is looking to a recent Supreme Court ruling to help him clear that final hurdle and officially be allowed to remain in the country he’s called home for more than two decades.

“At this point, I’m feeling very positive that everything is on the right track,” he said recently from his home in Springfield, Massachusetts. “I don’t have that fear of deportation anymore. I feel safer now.”

Mr. Perez is among scores of immigrants hoping to get their deportation cancelled because they didn’t receive proper notice of the court proceedings.

In April, the Supreme Court ruled in Niz-Chavez v. Garland that the federal government must provide all required information to immigrants facing deportation in a single notice.

The U.S. Immigration and Customs Enforcement (ICE) for years has been notifying immigrations about their deportation cases in roughly two parts: an initial notice to appear in court and follow up notices providing the date, time, and location of the proceedings.

But Justice Neil Gorsuch, in his majority opinion, criticized the piecemeal approach as exceeding federal law.

The issue, he argued, hinged on the shortest of words: a 1996 immigration law calls for the government to issue “a” notice to appear, implying Congress intended those facing deportation to receive a single document.

“At one level, today’s dispute may seem semantic, focused on a single word, a small one at that,” said Mr. Gorsuch, a conservative judge appointed by former Republican President Donald Trump. “But words are how the law constrains power.”

Immigration lawyers and advocates, who have long complained about the deportation notification process, say the ruling has implications for scores of immigration cases.

“It’s a bombshell,” said Jeremy McKinney, a North Carolina attorney who is president-elect of the American Immigration Lawyers’ Association. “It’s the second time in less than three years that the court has had to remind the government that a notice to appear actually has to notify a person when and where to appear.”

The high court, he noted, made a similar ruling on deportation notices in Pereira v. Sessions, but that 2018 decision was somewhat narrower in scope.

Immigration activists argue ICE’s current notice process causes too many immigrants to miss their court hearings, as months can pass between the initial and follow-up notices. Some, they say, don’t even find out until years later that they had a deportation hearing and were ordered removed from the country by a judge.

It could be months before the true impact of the Niz-Chavez decision is felt, but Mr. McKinney and other immigration experts say it’s sure to add more cases to an already overburdened immigration court system.

At minimum, the decision gives new life to cases in which immigrants weren’t properly notified, never showed up for their deportation cases, and were ultimately ordered to leave the country, he said.

It also likely benefits anyone issued a deportation notice without the necessary specifics going forward. Indeed in places like Cleveland, Ohio, and Arlington, Virginia, immigration court judges are already granting requests to terminate deportation proceedings if an immigrant was issued a notice that lacks a place or date and time for the initial hearing, according to immigration lawyers.

Matt Benson, a Cincinnati-based attorney, estimated his firm alone has filed more than two dozen such motions, with the vast majority being granted by judges.

“The court is being flooded with these motions,” he said. “This is now a major tool to avoid a removal order against a client.”

ICE, which had argued in the Supreme Court case that its notification process was sufficient, said Friday it’s been providing the required information on a single notice since January 2019.

It also referred to a June memo in which it said ICE lawyers will “exercise their prosecutorial discretion” in deciding whether to challenge immigrants who seek to reopen their immigration cases in light of the Niz-Chavez ruling.

In the meantime, Agusto Niz-Chavez, the Guatemalan national at the center of the Supreme Court case, says he’s waiting for his case to be remanded to the immigration court in Detroit.

Mr. Niz-Chavez says he’s anxious for it to be resolved. His wife was deported to Guatemala last year and he’s been raising their three children in Detroit while trying to balance work at a local pallet factory.

“My priority right now is to stay by my kids,” he said by Zoom recently. “If I’m able to obtain lawful permanent residency in the future, I would be interested in trying to find a lawful path for my wife to return to the United States.”

In Massachusetts, Mr. Perez is hoping for a similar outcome in court.

The father of four, who entered the country illegally in 1999 at the age of 17, was served with a notice to appear in immigration court back in 2011, but it didn’t have the date and time of his hearing, according to Glenn Formica, Mr. Perez’s lawyer.

“This is everything Lucio needs to get a second chance in his case,” he said.

For now, Mr. Perez is easing back into the life he put on hold for the last three years while he lived in the First Congregational Church in Amherst with support from the Pioneer Valley Workers Center and the hundreds of volunteer supporters the group helped coordinate.

The longtime landscaper hopes to open a store selling Guatemalan clothes and food if he’s granted permanent status.

“I felt like a bird in a cage before,” Mr. Perez said. “Now, I’m out of the cage and back in my life. I can leave the house, go to the store, go to work. I’m really grateful for that.”

This story was reported by The Associated Press.

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