By Emma Winger | Immigration Impact
The Supreme Court made an about-face on June 14, holding that immigration judges may order noncitizens deported if they do not appear for their immigration hearings even if the government never provided them with a Notice to Appear (NTA) with the date and time of their immigration hearing.
Under Campos-Chaves v. Garland, so long as the government provides a second notice with a hearing date and time – sometimes months or years after the initial faulty NTA – a person can be ordered deported “in absentia.”
Under immigration law, a noncitizen can be ordered deported if they do not show up to their immigration hearing, but only if they received proper notice. And if a noncitizen is ordered deported in absentia, they can move to rescind that order if they can show they did not receive such notice.
At the heart of this case is Mr. Campos-Chaves. He moved to rescind his in absentia removal order because the Department of Homeland Security (DHS) never gave him a valid NTA with notice of the date and time of his hearing. But the Supreme Court concluded that because DHS later gave him a “Notice of change in time or place of proceedings,” he could not reopen his deportation order.
Related: I Was Deported from America: How Can I Return?
With this decision, the Court backtracked from two recent decisions that had emphasized the importance of a complete NTA in immigration proceedings.
In Pereira and then Niz-Chavez, the Supreme Court explained that an NTA – the document that must be filed in immigration court in order to start removal proceedings – must include a wide range of information in a single document, including the removal charges, the facts to support those charges, notice of the right to be represented by an attorney, and the time and place of removal proceedings.
In contrast, a notice of a change in a hearing time or place does not include all of this essential information.
But in Campos-Chaves, the Supreme Court said that a person can be ordered deported in absentia based only on the notice of change of hearing, even if they never received a valid and complete NTA. In other words, when the government breaks its own rules, it can still deport people.
In ruling this way, the Court disagreed with the U.S. Courts of Appeals for the First, Third, Fourth and Ninth Circuits.
This case isn’t just about a technicality. When DHS fails to provide noncitizens with a complete NTA that has information about where and when their removal proceedings will take place, the government makes it harder for those noncitizens to navigate the system. It also, of course, makes it likely that they will not appear for their removal proceedings at all. Newly arrived migrants, many of whom do not speak English and are unfamiliar with the U.S. legal system, are less likely to understand their obligation to update their address with immigration court if they don’t know what court is responsible for their case. This is especially confusing for people who are also attending check-ins with Immigration and Customs Enforcement (ICE) and may not realize their separate obligations in immigration court.
A two-step notice process – faulty NTA and a later hearing notice – is much more likely to lead people to miss a court date.
Yet the Supreme Court just endorsed this two-step process.
It is critical to protect the due process rights of noncitizens in removal proceedings because the stakes are so high. By allowing the government to cut corners when giving notice to people facing deportation, the Campos-Chavez decision undermines those rights.