Argument analysis: Justices skeptical of government’s reading of immigrant-removal provisions

Pereira v. Sessions, which was argued yesterday morning, implicates two questions, one narrow and one broad. The narrow question is a basic one of statutory interpretation. Under the Immigration and Nationality Act, ten years of continuous physical presence, along with certain other factors, must be accrued before immigrants lacking two or more years of lawful residence, and otherwise removable, can qualify for a discretionary form of relief from removal known as “cancellation of removal.” The statute states that when the government issues a “notice to appear” for removal proceedings, the NTA stops the accrual of an immigrant’s ten years of “continuous physical presence.” The statutory question at issue is whether the NTA must comply with all of the requirements of a cross-referenced statutory provision in order to stop the clock on continuous physical presence. The broader question implicates Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., which requires courts to defer to reasonable agency interpretations of ambiguous statutes.

David Zimmer argued on behalf of the petitioner, Wescley Pereira. Zimmer asserted that when, in referring to the NTA, the cancellation provision of the Immigration and Nationality Act cross-references Section 1229(a), the statute “defines a Notice to Appear as a notice that provides specific information, including the time and place at which the proceeding will be held.” Because the NTA that the government served on Pereira lacked that information, Zimmer contended that it was not an NTA within the meaning of the cancellation provision and did not stop the clock on Pereira’s accrual of continuous physical presence. When pressed by Justices Elena Kagan and Ruth Bader Ginsburg on this point throughout the argument, Zimmer insisted that all of the statutorily-detailed components of the NTA in Section 1229(a)(1) needed to be in the NTA, although he noted that, as a practical matter, the elements that are most likely to be at issue are the time and date of the hearing and the grounds of removal charged by the government. Justice Samuel Alito asked whether the statute was “so clear that it wouldn’t be necessary for us to go beyond step one of Chevron.” Zimmer responded that “when Congress states that the document ‘in this section referred to as’ a Notice to Appear is written notice that specifies that information, that means that if … written notice does not specify that information, it has not” served as an NTA. Additionally, as Zimmer later remarked, “[I]t’s hard to see that it could be a Notice to Appear when it didn’t actually tell Mr. Pereira when to appear and when to do anything.”

Justice Sonia Sotomayor pressed Zimmer further, asking whether the statute might not be ambiguous because it refers to an NTA “under section 1229(a)” rather than, for example, “notice in accordance with” Section 1229(a)(1). Zimmer resisted the notion that this phrasing generated ambiguity, arguing that the meaning is clear because the NTA is a defined term and the definition is provided in Section 1229(a).  He also maintained that, even if the Supreme Court were to find ambiguity, deference to the Board of Immigration Appeals’ interpretation of the provision was not required in this case.

Alito, Chief Justice John Roberts and Justice Neil Gorsuch seemed puzzled as to why it matters whether the date of the hearing is provided. Why is a blank NTA not effective for stopping the clock but a completed NTA with a later-amended hearing date is? As Zimmer noted, “[T]he government’s interpretation [not requiring the inclusion of the listed elements of Section 1229(a) to stop the continuous-physical-presence clock] would allow the government to end time, to trigger the stop time rule, long before it really has the intent of going forward [with removal proceedings].” He maintained that Pereira’s interpretation avoids this problem.

Frederick Liu represented the government. Right out of the gate, his argument was greeted with skepticism not only by Sotomayor, but also by Gorsuch, who seemed troubled by the many ways the agency was defining an NTA without any accompanying support in the text of the statute. “How is it that under [one of the Board’s precedential cases, Ordaz], a Notice to Appear isn’t a Notice to Appear … if it’s not filed, as Justice Sotomayor points out? An extra-statutory requirement that … I don’t see in the … language of the statute. Maybe you can tell me where to find it?” Liu could not.

Gorsuch continued, “[W]hat is the definition of a Notice to Appear? It doesn’t have to have a date. It doesn’t have to have a time. Does it have to have the charges? Does it have to have the facts? I mean, at what point does the emperor have no clothes? At what point?” Liu argued that the NTA would need to contain the basis of removability, but not necessarily the time of the hearing. Gorsuch pushed back, noting that there is no statutory basis for this distinction. Liu outlined the components of Section 1229(a)(1) that would, in his view, fulfill the “essential function of a charging document,” pointing out that the date and time of the hearing were not on that list, to which Gorsuch parried, “Doesn’t Congress get to decide what’s the essential function of a charging document?” Kagan then took the baton and pursued a similar line of questioning, seemingly undeterred by Liu’s efforts to argue that subsequently enacted legislation revealed congressional intent consistent with his interpretation.

In an exchange with Liu that was at times testy, Justice Stephen Breyer also expressed skepticism over the government’s argument. After hearing Liu explain why the statute did not require unambiguously information regarding the time and date of the hearing (but did require other elements), Breyer said, “that seems odd, but assume you’re right. We then get to step 2 of Chevron, and step 2 says that the agency decision has to be reasonable. So I look for the reason. What’s the reason …?” Breyer took issue with the government’s argument that providing the hearing date and time in the NTA would be too administratively difficult. (Indeed, there was a good deal of discussion throughout the argument as to whether the inclusion of the date and time of the hearing on the NTA is administratively feasible.)

Breyer asked for the reasons why the government had stopped trying to include hearing dates in the NTA. Liu gave three: The former system was not allocating workload fairly among judges, was not capable of prioritizing cases and was reliant on a limited-access system. Breyer was “rather dubious” about the persuasiveness of the first reason, and asked “where [the other two] reasons appear,” because he was otherwise “incapable of evaluating them.” “In what document,” he asked, “shall I read the reasons that the BIA or whatever these organizations were, why did they change the old system …?” Liu could point to “no document.” Breyer later returned to this point to say that he did not intend to be “mean,” but wanted to get at the problem of “how much of a reason does an agency have to give” before the Supreme Court defers. Breyer referenced the 1935 case Panama Refining Co. v. Ryan, in which, in Breyer’s telling, the agency’s unpublished reasons for its interpretation were “discovered … in somebody’s desk at the Interior Deparment.” Liu said that past precedent suggested that there was sufficient information in the record here to justify deference to the agency’s interpretation of this statute, although again he cited no evidence to explain the agency’s changes in practice. During this exchange, Ginsburg pointed to a brief from a former immigration judge concluding that inclusion of the hearing date was feasible.

Near the end of the argument, Roberts threw Liu a lifeline by returning to the point that there was not much practical difference between having an NTA with no hearing date and one with a hearing date that is amended a few times. Roberts suggested that the former might be actually be better than the latter in terms of signaling to the immigrant the intent of the government.

When asked by Justice Anthony Kennedy how many NTAs omit the date and time of the hearing, Liu noted that “almost 100 percent” do. Near the end of his argument, Liu stressed that the better reading of the statute is to treat the cross-reference to Section 1229(a) as simply “identifying the type of document” that stops the clock. The required content of the document should be determined functionally, he suggested, rather than with reference to the text of the statute in Section 1229(a)(1).

Five justices seem skeptical of that claim.  It is never possible to predict the outcome of any case with certainty. But one could come away from this argument thinking that Gorsuch’s reluctance to defer excessively to administrative agencies on questions of statutory interpretation could possibly combine forces with the liberal justices’ more general concerns about the government’s arguments to generate another 5-4 win for a noncitizen petitioner this term.