The Immigration and Nationality Act’s Lost Appellate Rights Warnings

As part of our efforts to amplify the AILA Law Journal, Christopher Boom shared some insights from his recent article published in the Spring 2023 edition of the AILA Law Journal, “Taking the “Consequences Under Section 240(b)(5)” to Failing to Appear at Removal Proceedings Seriously
The Immigration and Nationality Act’s Lost Appellate Rights Warnings” in which he aimed to show that the government has failed to comply with the INA requirements to state the consequences of failing to appear at removal proceedings. AILA members, access your free digital copy of the Law Journal to read more!

Five years ago, the Supreme Court issued a groundbreaking immigration decision in Pereira v. Sessions. For over two decades, the government took the position that the Immigration and Nationality Act (INA) does not require it to put the time and place of noncitizens’ hearings in the initial notices the government gives to inform them they have been placed in removal proceedings. And at the time the Court decided Pereira, all but one of the circuits to have considered this issue agreed with the government. Yet all but one of the justices to hear Pereira disagreed: its position was incompatible with the very words of the INA. The government had been misapplying the law this entire time.

Later, the Supreme Court again rejected the government’s take on the INA’s notice requirements in Niz-Chavez v. Garland. Whereas the government now argued that it could meet the requirements for an initial notice through multiple documents, the Court concluded that this is inconsistent with what the INA says too. In particular, the Court pointed out that this conflicts with the fact that the INA says that those requirements must be met through “a” notice. Though acknowledging that this is just “a single word” – indeed, “a small one at that” – Niz-Chavez reminded its readers: “words are how the law constrains power” (emphasis added).

Immigration attorneys have since made use of the reasoning in these cases to develop important, new strategies for defending their clients in other contexts. However, the reach of these strategies is limited, as many noncitizens do receive initial notices containing the time and place of their hearings. Pereira and Niz-Chavez themselves cannot help those noncitizens.

Nonetheless, my article in the Spring 2023 edition of the AILA Law Journal picks up where Pereira and Niz-Chavez leave off by aiming to show that the government has similarly failed to comply with the counterpart to the INA’s time-and-place requirement, which requires notices to state the “consequences under section 240(b)(5)” of failing to appear at removal proceedings. Whereas the forms the government has used to implement the INA’s current notice provisions have perhaps sufficed to warn noncitizens of the risk imposed by § 240(b)(5)(A) that a removal order will be entered against them if they fail to appear, they have never warned noncitizens of the risk that § 240(b)(5)(C) and (D) would also strip them of rights of appeal they would enjoy if they had been ordered removed after appearing for their hearings. But the INA does not say that only warnings of the consequences under § 240(b)(5)(A) are required, it expressly requires warnings of the consequences under § 240(b)(5) in general. And that Congress intended to require notices to warn noncitizens that they risk losing their appellate rights by failing to appear is confirmed by the ordinary rules of statutory interpretation as well as the history and stated purposes of the INA’s notice and failure to appear provisions.

As we know, for many noncitizens the risks of deportation can be dire, including harm to themselves or their family, or separation from loved ones. Appeals can be difficult, but they offer hope when all hope seems lost. Taking away appellate rights from noncitizens for not going to their hearings without warning them of this possibility first is not just unfair, it also goes against the will of the American people as expressed by their elected representatives in Congress. Read more in my full article, available on AILA.org.