Will Supreme Court Let Removal Hearing No-Shows Stay?

September 15, 2023

IRLI shows Court Congress precluded that result

WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a brief in the Supreme Court on a technical issue with big implications: do tens of thousands of removal orders have to be rescinded because the aliens subject to them received notice of their hearings in the “wrong” document?

This issue comes up because immigration officials often do not provide the time and place of an alien’s removal hearing when they give the alien a notice to appear, usually because the hearing has not been scheduled yet. Later, they issue the alien another document containing the time and place information. In an earlier case, the Supreme Court held that, in order to make an alien cease accruing “continuous physical presence” (enough of which can make an alien eligible to apply for cancellation of removal), a notice to appear must contain time and place information in a single document, and not be split into two documents with only the later one bearing this information.

In its brief, IRLI shows that this earlier case does not mean that, when aliens have been notified of the time and place of their hearings in a second document called a notice of hearing, and then do not show up for their hearings, the immigration court cannot order them removed in absentia. In fact, a statute gives the court the authority to do just that, and this statute specifically provides that notice can be given to an alien in either a notice to appear or a notice of hearing.

“Even when the law is so clear, activist immigration attorneys will still try to gum up our removal system by giving officials impossible procedural obstacles,” said Dale L. Wilcox, executive director and general counsel of IRLI. “We hope the Court sees through their flimsy arguments here, recognizes that ‘or’ means ‘or,’ and applies the in absentia removal statute just as Congress wrote and intended it.”

The case is Campos-Chaves v. Garland, Nos. 22-674, 22-884 (Supreme Court).