As a young lawyer, a mentor instructed me that you never should make light of a client's case because, while the matter might seem trivial to you, it is something of great importance to the client. And that importance is especially justified with respect to the few cases deemed important enough to be heard by the Supreme Court of the United States. This is not to say, though, that however significant the outcome might be, some Supreme Court cases provide a few smiles along the way. Niz-Chavez v. Garland is such a case.
Mr. Niz-Chavez, a Guatemalan citizen, entered the United States unlawfully in 2005, and ultimately came to reside in Detroit. Eight years later, in 2013, the government initiated removal proceedings against Niz-Chavez and, following an Immigration Court hearing, he was ordered to depart the United States voluntarily or otherwise. A nonpermanent resident alien ordered removed from the United States might obtain discretionary relief if he can establish continuous presence in the country for at least 10 years.
However, under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the period of continuous presence “shall be deemed to end . . . when the alien is served a notice to appear” in a removal proceeding under 8 U. S. C. §1229(a)(1).
The word “a” turns out to be the operative descriptor in the Court's judgment, given the fact that Niz-Chavez did not receive a single document containing all relevant information; he got two, spaced by a couple of months.
In a decision that is a “Wordie’s” delight, the Court's majority, citing a variety of interpretive sources, including The Chicago Manual of Style and The Dictionary Act, held that Congress’s decision to use the indefinite article “a” means it envisioned “a” single notice. The word-precise majority, which likened the operative notice to a criminal indictment, a single document that contains all relevant charging information, was led by Justice Gorsuch, who was joined by Justices Thomas, Breyer, Sotomayor, Kagan, and Barrett—an odd lot defying various stereotypes about how the Justices ally themselves.
The dissenters, in an opinion by Justice Kavanaugh, who was joined by the Chief Justice and Justice Alito, took a no-harm, no-foul approach (as was made clear in the recent argument in the case of the cursing cheerleader, Kavanaugh is a dedicated girls' basketball coach), arguing that Niz-Chavez ultimately had all of the information to which he was entitled, albeit that it came in two envelopes, not one.
Once again, text, or at least one letter, proves decisive for a literal court.
By attorney Stuart Gerson of Epstein Becker Green, former Acting Attorney General of the United States and Assistant Attorney General for the Civil Division of the Department of Justice: stuart-m-gerson/
This article has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company.
