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Supreme Court Erases Loophole That Kept Foreigners Inside The U.S. Illegally

“[The law] does not allow aliens to seek remission of removal orders in perpetuity based on arguments they could have raised in a hearing that they chose to skip”


In a 5-4 ruling Friday, the Supreme Court erased a loophole that allowed foreigners to avoid deportation proceedings by citing a paperwork technicality.

The case centered on three illegal immigrants: Moris Esmelis Campos-Chaves, an El Salvador native who entered the country illegally in 2005 through Texas; Varinder Singh, a man from India who illegally entered the U.S. in 2016 by “climbing over a fence” in California; and Mexico-native Raul Daniel Mendez-Colín, who illegally entered the U.S. in 2001 in Arizona.

The trio argued that their deportation notices did not meet the criteria for a proper notice as prescribed by the law.

Title 8 USC § 1229 (a) describes two types of notices. The first is a general initial notice to appear that shall include, among other specificities, a “time and place” for the proceeding. The second notice regards a “change or postponement in the time and place of such proceedings.” The Supreme Court previously ruled in 2021 that “this information must be provided in a single document in order to satisfy [the law].”

If an alien does not appear at his removal proceeding, the government has the authority to remove him. If the alien, however, can prove he did not receive the notice, he can seek to have the removal order rescinded.

The Supreme Court was technically hearing three separate cases, as one case stemmed from the 5th U.S. Circuit Court of Appeals that ruled in favor of the government while the other two, from the 9th Circuit, ruled in favor of the illegal immigrants.

The trio were ordered to be deported after they failed to appear at their deportation hearings. But the three illegal immigrants argued that the notices they received were improper since they initially lacked a specific date and time.

Campos-Chaves was served a notice to appear three days after he illegally entered the country. The notice to appear indicated the location of the hearing but said a “date” would be provided at a later time. Months later, Campos-Chaves received a notice that the hearing had been set for September 20, 2005, the Court wrote. Campos-Chaves did not show and a judge ordered him removed in absentia. Campos-Chaves filed a motion to reopen his removal proceedings in 2018, arguing he didn’t receive a proper notice to appear.

Singh was served with a notice to appear “several weeks” after illegally crossing that stated the date and time was “[to be determined].” The government sent a follow up notice five days later specifying the date and time, and two years later the court sent another notice that rescheduled his hearing for November 26, 2018. Singh did not appear, but since the government “did not have his file” they sent an additional notice to him for the newly rescheduled hearing date of December 12, 2018. Singh failed to appear yet again and was ordered removed in absentia. Singh argued he did not receive a proper notice to appear and therefore his removal order should be tossed.

Mendez-Colín was served with a notice to appear the day after he illegally entered the country that provided the location of the hearing but noted the time and date would be specified at a later point. The court sent Mendez-Colín a notice of the hearing that included a specified time and date, to which Mendez-Colín appeared. Mendez-Colín or his attorney attended subsequent hearings but was ordered removed, the Court explained. Mendez-Colín indicated he would apply to cancel the removal proceedings with a judge sending a notice to his attorney for another hearing. Days before that hearing, Mendez-Colín’s attorney filed a motion to withdraw as counsel citing lack of contact between him and his client. The attorney still showed up to the hearing, however, where a judge determined that Mendez-Colín “abandoned any and all claim(s) for relief from removal” and ordered him removed in absentia. Mendez-Colín now argues his absentia order was the result of a “defective [notice to appear].”

The Court therefore set out to answer whether an alien “can seek remission of an in absentia removal order indefinitely whenever the Government fails to provide a single-document [notice to appear].”

The court notes the “Government concedes” that in all three cases the initial notices to appear failed to provide a specific time and date. Therefore, the Court said, each alien had to then prove to the Court they “did not receive notice in accordance with [the law].”

But the Supreme Court ruled that while the government “failed to provide a single-document [notice to appear]” it “eventually provided each alien with a notice specifying the time and place of the removal hearing.”

Therefore, the Supreme Court rules, satisfying either type of notice described by Title 8 USC § 1229 satisfies the basis for ordering removal in absentia and therefore the three illegal immigrants are ineligible to have their absentia removal orders rescinded.

“Today’s decision does not mean that the government is free of its obligation to provide an [notice to appear]. But [the law] does not allow aliens to seek remission of removal orders in perpetuity based on arguments they could have raised in a hearing that they chose to skip,” Alito wrote for the majority.

Judge Ketanji Brown Jackson, dissenting alongside Justices Sonia Sotomayor, Elena Kagan and Neil Gorsuch, argued the majority was shifting the burden onto “noncitizens” who are “perhaps unfamiliar with this country and its laws” and “tasking them with the responsibility of addressing the government’s mistakes.”

Surely the burden is always on the government when dealing with the rights of citizens. But to claim that noncitizens — in this case people who knowingly broke the law and entered the country illegally — deserve the same right as an American to absolve themselves of the burden of proof is ludicrous.

Millions of illegal immigrants have flooded our border and overwhelmed not only Border Patrol, but the court system. The idea that these “noncitizens” should be allowed to stay in the country if the overwhelmed court system fails to provide a single document notifying them of their hearing is insanity.

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