Have Immigration Courts Lost Jurisdiction?

August 16, 2021

IRLI, attorneys’ group show recent Supreme Court decision means no such thing

WASHINGTON—The Immigration Reform Law Institute (IRLI) and Attorneys United for a Secure America (AUSA), a project of IRLI, have both submitted friend-of-the-court briefs to the Board of Immigration Appeals, the nation’s immigration appellate court, in a case that threatens to strip the jurisdiction of immigration courts across the land in many cases.

In the case, the Board sought briefing on whether a recent Supreme Court decision means that, when aliens receive notices to appear in immigration court that contain statutorily-required information such as the time and place of removal proceedings not in one document, but in a succession of documents, the immigration court lacks jurisdiction to hear the case. The Supreme Court, interpreting a statute, had held that the information must all be in one document for purposes of the “stop-time” rule—that is, in order to stop an alien’s accrual of a period of lawful presence that would make him eligible to seek cancellation of removal.

In its brief, IRLI shows that this Supreme Court decision is limited to the context of the “stop-time” rule. First, though courts have a duty to assess their jurisdiction even if the parties do not raise the issue, the Supreme Court never even mentioned jurisdiction in its ruling—an indication that it did not believe it lacked jurisdiction to hear the case. Second, the statute the Supreme Court had based its ruling on is separate from the statute that grants immigration courts jurisdiction, and the latter statute has no requirement of a single document. Third, every appellate circuit court to consider this issue had found that jurisdiction remained despite the lack of a single document.

For its part, AUSA shows in its brief that the Supreme Court decision concerning the “stop-time” rule does not operate retroactively, and so, at the very least, does not surprise the government by stripping jurisdiction from immigration courts in cases where a notice to appear was issued before the Supreme Court issued that decision.

“There is seemingly no limit to activist, anti-borders attorneys’ efforts to gut our immigration system in the courts,” said Dale L. Wilcox, executive director and general counsel of IRLI. “In this latest attempt, they are trying to twist a Supreme Court ruling on a narrow, technical issue into a wholesale removal of jurisdiction in our immigration courts. We hope the Board sees the legal baselessness of the activists’ arguments here, and rules accordingly.”

The case is Amicus Invitation No. 21–20–07 Notice to Appear (BIA).