Niz-Chavez v. Garland ( 2021 )

(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NIZ-CHAVEZ v. GARLAND, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 19–863. Argued November 9, 2020—Decided April 29, 2021
Nonpermanent resident aliens ordered removed from the United States
under federal immigration law may be eligible for discretionary relief
if, among other things, they can establish their continuous presence in
the country for at least 10 years. 8 U. S. C. §1229b(b)(1). But the so-
called stop-time rule included in the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA) provides that the pe-
riod of continuous presence “shall be deemed to end . . . when the alien
is served a notice to appear” in a removal proceeding under §1229a.
§1229b(d)(1). The term “notice to appear” is defined as “written notice
. . . specifying” certain information, such as the charges against the al-
ien and the time and place at which the removal proceedings will be
held. §1229(a)(1). A notice that omits any of this statutorily required
information does not trigger the stop-time rule. See Pereira v. Ses-
sions, 585 U. S. ___. Here, the government ordered the removal of pe-
titioner Agusto Niz-Chavez and sent him a document containing the
charges against him. Two months later, it sent a second document,
providing Mr. Niz-Chavez with the time and place of his hearing. The
government contends that because the two documents collectively
specified all statutorily required information for “a notice to appear,”
Mr. Niz-Chavez’s continuous presence in the country stopped when he
was served with the second document.
Held: A notice to appear sufficient to trigger the IIRIRA’s stop-time rule
is a single document containing all the information about an individ-
ual’s removal hearing specified in §1229(a)(1). Pp. 4–12.
(a) Section 1229b(d)(1) states that the stop-time rule is triggered by
serving “a notice,” and §1229(a)(1) explains that “written notice” is “re-
ferred to as a ‘notice to appear.’ ” Congress’s decision to use the indef-
inite article “a” suggests it envisioned “a” single notice provided at a
2 NIZ-CHAVEZ v. GARLAND
Syllabus
discrete time rather than a series of notices that collectively provide
the required information. While the indefinite article “a” can some-
times be read to permit multiple installments (such as “a manuscript”
delivered over months), that is not true for words like “notice” that can
refer to either a countable object (“a notice”) or a noncountable abstrac-
tion (“sufficient notice”). The inclusion of an indefinite article suggests
Congress used “notice” in its countable sense. More broadly, Congress
has used indefinite articles to describe other case-initiating plead-
ings—such as an indictment, an information, or a civil complaint, see,
e.g., Fed. Rules Crim. Proc. 7(a), (c)(1), (e); Fed. Rule Civ. Proc. 3—and
none suggest those documents might be delivered by installment. Nor
does the Dictionary Act aid the government, as that provision merely
tells readers of the U. S. Code to assume “words importing the singular
include and apply to several persons, parties, or things.” 1 U. S. C. §1.
That provision means only that terms describing a single thing (“a no-
tice”) can apply to more than one of that thing (“ten notices”). While it
certainly allows the government to send multiple notices to appear to
multiple people, it does not mean a notice to appear can consist of mul-
tiple documents. Pp. 4–9.
(b) The IIRIRA’s structure and history support requiring the govern-
ment to issue a single notice containing all the required information.
Two related provisions, §§1229(e)(1) and 1229a(b)(7), both use a defi-
nite article with a singular noun (“the notice”) when referring to the
government’s charging document—a combination that again suggests
a discrete document. Another provision, §1229(a)(2)(A), requires “a
written notice” when the government wishes to change an alien’s hear-
ing date. The government does not argue that this provision contem-
plates providing “the new time or place of the proceedings” and the
“consequences . . . of failing . . . to attend such proceedings” in separate
documents. Yet the government fails to explain why “a notice to ap-
pear” should operate differently. Finally, the predecessor to today’s
“notice to appear” required the government to specify the place and
time for the alien’s hearing “in the order to show cause or otherwise.”
§1252(a)(2)(A). The phrase “or otherwise” has since disappeared, fur-
ther suggesting that the required details must be included upfront to
invoke the stop-time rule. Indeed, that is how the government itself
initially read the statute. The year after Congress adopted IIRIRA, in
the preamble to a proposed rule implementing these provisions, the
government acknowledged that “the language of the amended Act in-
dicat[es] that the time and place of the hearing must be on the Notice
to Appear.” 62 Fed. Reg. 449 (1997). Pp. 9–13.
(c) The government claims that not knowing hearing officers’ avail-
ability when it initiates removal proceedings makes it difficult to pro-
Cite as: 593 U. S. ____ (2021) 3
Syllabus
duce compliant notices. It also claims that it makes little sense to re-
quire time and place information in a notice to appear when that in-
formation may be later changed. Besides, the government stresses, its
own administrative regulations have always authorized its current
practice. But on the government’s account, it would be free to send a
person who is not from this country—someone who may be unfamiliar
with English and the habits of American bureaucracies—a series of
letters over the course of weeks, months, maybe years, each containing
a new morsel of vital information. Congress could reasonably have
wished to foreclose that possibility. And ultimately, pleas of adminis-
trative inconvenience never “justify departing from the statute’s clear
text.” Pereira, 585 U. S., at ___. The modest threshold Congress pro-
vided to invoke the stop-time rule is clear from the text and must be
complied with here. Pp. 13–16.
789 Fed. Appx. 523, reversed.
GORSUCH, J., delivered the opinion of the Court, in which THOMAS,
BREYER, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined. KAVANAUGH, J.,
filed a dissenting opinion, in which ROBERTS, C. J., and ALITO, J., joined.
Cite as: 593 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–863
_________________
AGUSTO NIZ-CHAVEZ, PETITIONER v. MERRICK B.
GARLAND, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[April 29, 2021]
JUSTICE GORSUCH delivered the opinion of the Court.
Anyone who has applied for a passport, filed for Social
Security benefits, or sought a license understands the gov-
ernment’s affinity for forms. Make a mistake or skip a
page? Go back and try again, sometimes with a penalty for
the trouble. But it turns out the federal government finds
some of its forms frustrating too. The Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
110 Stat. 3009–546, requires the government to serve “a no-
tice to appear” on individuals it wishes to remove from this
country. At first blush, a notice to appear might seem to be
just that—a single document containing all the information
an individual needs to know about his removal hearing.
But, the government says, supplying so much information
in a single form is too taxing. It needs more flexibility, al-
lowing its officials to provide information in separate mail-
ings (as many as they wish) over time (as long as they
find convenient). The question for us is whether the law
Congress adopted tolerates the government’s preferred
practice.
2 NIZ-CHAVEZ v. GARLAND
Opinion of the Court
I
For more than a century, Congress has afforded the At-
torney General (or other executive officials) discretion to al-
low otherwise removable aliens to remain in the country.
An alien seeking to establish his eligibility for that kind of
discretionary relief, however, must demonstrate a number
of things. A nonpermanent resident, for example, must
show that his removal would cause an “exceptional and ex-
tremely unusual hardship” to close relatives who are U. S.
citizens or lawful permanent residents; that he is of good
moral character; that he has not been convicted of certain
crimes; and that he has been continuously present in the
country for at least 10 years. 8 U. S. C. §1229b(b)(1).
The last item on this list lies at the crux of this case. Orig-
inally, an alien continued to accrue time toward the pres-
ence requirement during the pendency of his removal pro-
ceedings. With time, though, some came to question this
practice, arguing that it gave immigrants an undue incen-
tive to delay things. See, e.g., In re Cisneros-
Gonzales, 23 I. & N. Dec. 668, 670–671 (BIA 2004). In
IIRIRA, Congress responded to these concerns with a new
“stop-time” rule. Under the statute’s terms, “any period of
continuous . . . presence in the United States shall be
deemed to end . . . when the alien is served a notice to ap-
pear.” §1229b(d)(1).
All of which invites the question: What qualifies as a no-
tice to appear sufficient to trigger the stop-time rule?
IIRIRA defines a notice to appear as “written notice . . .
specifying” several things. §1229(a)(1). These include the
nature of the proceedings against the alien, the legal au-
thority for the proceedings, the charges against the alien,
the fact that the alien may be represented by counsel, the
time and place at which the proceedings will be held, and
the consequences of failing to appear. See ibid.
This seemingly simple rule has generated outsized con-
troversy. Initially, the dispute focused on the government’s
Cite as: 593 U. S. ____ (2021) 3
Opinion of the Court
practice of issuing documents labeled notices to appear that
failed to include the time and place for the alien’s removal
hearing. The government argued these documents were
sufficient to trigger the stop-time rule. It insisted that pro-
ceeding this way served an important governmental inter-
est too: If it waited to issue notices until the calendars of
its hearing officers became clear, aliens would accrue too
much time toward the presence requirement. Ultimately,
however, this Court rejected the government’s practice in
Pereira v. Sessions, 585 U. S. ___ (2018). We explained that,
in IIRIRA, Congress took pains to describe exactly what the
government had to include in a notice to appear, and that
the time and place of the hearing were among them. Id., at
___. The government was not free to short-circuit the stop-
time rule by sending notices to appear that omitted statu-
torily required information. Id., at ___.
Today’s case represents the next chapter in the same
story. Perhaps the government could have responded to Pe-
reira by issuing notices to appear with all the information
§1229(a)(1) requires—and then amending the time or place
information if circumstances required it. After all, in the
very next statutory subsection, §1229(a)(2), Congress ex-
pressly contemplated that possibility. But, at least in cases
like ours, it seems the government has chosen instead to
continue down the same old path. Here, the government
sent Mr. Niz-Chavez one document containing the charges
against him. Then, two months later, it sent a second doc-
ument with the time and place of his hearing. In light of
Pereira, the government now concedes the first document
isn’t enough to trigger the stop-time rule. Still, the govern-
ment submits, the second document does the trick. On its
view, a “notice to appear” is complete and the stop-time rule
kicks in whenever it finishes delivering all the statutorily
prescribed information. The government says it needs this
kind of flexibility to send information piecemeal. It even
4 NIZ-CHAVEZ v. GARLAND
Opinion of the Court
suggests it should be allowed to spread the statutorily man-
dated information over as many documents and as much
time as it wishes.
Some circuits have accepted the government’s notice-by-
installment theory. Others, however, have held that the
government must issue a single and comprehensive notice
before it can trigger the stop-time rule. We agreed to hear
this case, Niz-Chavez v. Barr, 789 Fed. Appx. 523 (CA6
2019), to resolve the conflict, 590 U. S. ___ (2020).
II
When called on to resolve a dispute over a statute’s mean-
ing, this Court normally seeks to afford the law’s terms
their ordinary meaning at the time Congress adopted them.
See, e.g., Wisconsin Central Ltd. v. United States, 585 U. S.
___, ___ (2018). The people who come before us are entitled,
as well, to have independent judges exhaust “all the textual
and structural clues” bearing on that meaning. Id., at ___
(slip op., at 8). When exhausting those clues enables us to
resolve the interpretive question put to us, our “sole func-
tion” is to apply the law as we find it, Lamie v. United States
Trustee, 540 U. S. 526, 534 (2004) (internal quotation
marks omitted), not defer to some conflicting reading the
government might advance.
A
In this case, our interpretive task begins with two statu-
tory provisions we have already touched on. The first,
§1229b(d)(1), states that the stop-time rule is triggered
“when the alien is served a notice to appear under section
1229(a).” In turn, §1229(a)(1) explains that “written notice
(in this section referred to as a ‘notice to appear’) shall be
given . . . to the alien . . . specifying” the time and place of
his hearing and all the other items we noted above. Almost
immediately, these provisions pose the government with a
problem. To trigger the stop-time rule, the government
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Opinion of the Court
must serve “a” notice containing all the information Con-
gress has specified. To an ordinary reader—both in 1996
and today—“a” notice would seem to suggest just that: “a”
single document containing the required information, not a
mishmash of pieces with some assembly required.
Nor is the government’s response (echoed by the dissent)
entirely satisfying. The government submits that
§1229(a)(1) defines the term “notice to appear” as “written
notice”—and then says it’s obvious “written notice” can
come by means of one document or many. See post, at 6–7
(opinion of KAVANAUGH, J.). But this argument doesn’t
quite track. Section 1229(a)(1) says that “written notice” is
“referred to as a ‘notice to appear.’ ” The singular article “a”
thus falls outside the defined term (“notice to appear”) and
modifies the entire definition. So even if we were to do ex-
actly as the government suggests and substitute “written
notice” for “notice to appear,” the law would still stubbornly
require “a” written notice containing all the required infor-
mation.
Admittedly, a lot here turns on a small word. In the view
of some, too much. The dissent urges us to overlook the fact
Congress placed the singular article “a” outside the defined
term in §1229(a)(1). On its view, we should read the statute
as if the article came inside the defined term. Post, at 7–8.
But that’s not how the law is written, and the dissent never
explains what authority might allow us to undertake the
statutory rearranging it advocates.1 Nor does any of this
——————
1 The closest the dissent comes is when it alludes to United States Nat.
Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439(1993). But that “unusual” case turned on the “scrivener’s error” doc-
trine, id., at 462, which applies only in exceptional circumstances to ob-
vious technical drafting errors. See, e.g., Lamie v. United States Trustee,
540 U. S. 526, 538 (2004); A. Scalia & B. Garner, Reading Law 237–238
(2012). Nobody (the dissent included) contends the conditions required
for that doctrine’s application exist here.
6 NIZ-CHAVEZ v. GARLAND
Opinion of the Court
help when it comes to §1229b(d)(1), the provision that actu-
ally creates the stop-time rule, for that statute separately
speaks of “a” notice to appear. Not once but twice it seems
Congress contemplated “a” single document.
Perhaps recognizing this much, the government and dis-
sent pivot and focus their efforts in a different direction.
Now, they remind us that “[t]he indefinite article ‘a’ is often
used to refer to something that may be provided in more
than one installment.” Brief in Opposition 10; see also post,
at 10–11. The government observes, for example, that a
writer can publish “a” story serially, or an author may de-
liver “a” manuscript chapter by chapter. Brief in Opposi-
tion 10. The dissent offers its own illustrations, highlight-
ing that “a job application” and “a contract” also can be
prepared in parts. Post, at 10. So even if IIRIRA speaks
repeatedly of “a” notice to appear, the government and dis-
sent contend, it remains possible that Congress meant to
allow that notice to come over time and in pieces.
The trouble with this response is that everyone admits
language doesn’t always work this way. To build on an il-
lustration we used in Pereira, someone who agrees to buy
“a car” would hardly expect to receive the chassis today,
wheels next week, and an engine to follow. 585 U. S., at ___
(slip op., at 14); see post, at 10. At best, then, all of the
competing examples the government and dissent supply do
no more than demonstrate context matters. And here at
least, it turns out that context does little to alter first im-
pressions.
Start with customary usage. Normally, indefinite arti-
cles (like “a” or “an”) precede countable nouns. The exam-
ples above illustrate the point: While you might say “she
wrote a manuscript” or “he sent three job applications,” no
one would say “she wrote manuscript” or “he sent job appli-
cation.” See The Chicago Manual of Style §5.7, p. 227 (17th
ed. 2017); see also R. Huddleston & G. Pullum, The Cam-
bridge Grammar of the English Language §3.1, p. 334
Cite as: 593 U. S. ____ (2021) 7
Opinion of the Court
(2002). By contrast, noncountable nouns—including ab-
stractions like “cowardice” or “fun”—“almost never take in-
definite articles.” The Chicago Manual of Style §5.7, at 227;
see also Huddleston, supra, §3.1, at 334. After all, few
would speak of “a cowardice” or “three funs.”
These customs matter because the key term before us (no-
tice) can refer to either a countable object (“a notice,” “three
notices”) or a noncountable abstraction (“sufficient notice,”
“proper notice”). Congress’s decision to use the indefinite
article “a” thus supplies some evidence that it used the term
in the first of these senses—as a discrete, countable thing.
All of which suggests that the government must issue a sin-
gle statutorily compliant document to trigger the stop-time
rule. If IIRIRA had meant to endow the government with
the flexibility it supposes, we would have expected the law
to use “notice” in its noncountable sense. A statute like that
would have said the stop-time rule applies after the govern-
ment provides “notice” (or perhaps “sufficient notice”) of the
mandated information—indicating an indifference about
whether notice should come all at once or by installment.
Of course this is just a clue. Sometimes Congress’s stat-
utes stray a good way from ordinary English. Sometimes,
too, Congress chooses to endow seemingly familiar words
with specialized definitions. But until and unless someone
points to evidence suggesting otherwise, affected individu-
als and courts alike are entitled to assume statutory terms
bear their ordinary meaning. And when it comes to discern-
ing the ordinary meaning of words, there are perhaps few
better places to start than the rules governing their usage.
Nor is this the only contextual clue before us. A notice to
appear serves as the basis for commencing a grave legal
proceeding. As the government has acknowledged, it is
“like an indictment in a criminal case [or] a complaint in a
civil case.” Tr. of Oral Arg. in Pereira v. Sessions, O. T.
2017, No. 17–459, p. 39. The rules Congress has adopted to
describe those other case-initiating pleadings often use the
8 NIZ-CHAVEZ v. GARLAND
Opinion of the Court
indefinite article to refer to a single document—an indict-
ment, an information, or a civil complaint. See, e.g., Fed.
Rules Crim. Proc. 7(a), (c)(1), (e); Fed. Rule Civ. Proc. 3. In
each case, the aim is to supply an affected party with a sin-
gle document highlighting certain salient features of the
proceedings against him. No one contends those documents
may be shattered into bits, so that the government might,
for example, charge a defendant in “an indictment” issued
piece by piece over months or years. And it is unclear why
we should suppose Congress meant for this case-initiating
document to be different.2
The government resists this conclusion by invoking the
Dictionary Act. When reading the U. S. Code, that Act tells
us to assume “words importing the singular include and
apply to several persons, parties, or things,” unless statu-
tory context indicates otherwise. 1 U. S. C. §1. But this
instruction has no application here. The Dictionary Act
does not transform every use of the singular “a” into the
plural “several.” Instead, it tells us only that a statute us-
ing the singular “a” can apply to multiple persons, parties,
or things. So the Act allows the government to send multi-
ple notices to appear to multiple people, but it does not
mean a notice to appear can consist of multiple documents.
Think of the problem this way: Suppose a statute made
it a crime to vandalize “a” bank. Under the Dictionary Act,
someone who vandalizes five banks could not avoid prose-
cution on the ground that he vandalized more than one.
Now take a hypothetical closer to this case—a person who
——————
2 The question is not, as the dissent seems to think, whether certain
other charging documents do or do not require “calendaring” infor-
mation. Post, at 11. Instead, our point is that each case-initiating docu-
ment must contain the catalogue of information Congress has said the
defendant or respondent is entitled to receive in that document—and no
one thinks this information may be provided by installment. Nor does
anyone dispute that Congress has said this case-initiating document
must include (among other things) “[t]he time and place at which the
proceedings will be held.” 8 U. S. C. §1229(a)(1)(G)(i).
Cite as: 593 U. S. ____ (2021) 9
Opinion of the Court
vandalizes some constituent part of a not-yet-completed
bank (say, a stack of blocks on a construction site). Did he
vandalize “a” bank? Answering that question depends on
whether Congress defined “bank” to include its constituent
parts, not on what the Dictionary Act says about the word
“a.”
B
To the extent any doubt remains about the meaning of
the two specific statutes before us, we believe a wider look
at IIRIRA’s statutory structure and history enough to re-
solve it.
Take 8 U. S. C. §1229(e)(1). That nearby provision sets
forth special rules the government must follow when it
seizes an alien at a sensitive location like a domestic vio-
lence shelter. In circumstances like these, Congress has in-
structed, “the Notice to Appear shall include a statement
that” the government has complied with certain special re-
quirements. Ibid. (emphasis added). Here again we en-
counter an article coupled with a singular noun (“the No-
tice”), a combination that once more seems to suggest a
discrete document. Nor would the rest of §1229(e)(1)’s
terms make much sense on the government’s account. If a
notice to appear were a collection of information rather
than a single written instrument, Congress would have had
no need to insist on “includ[ing]” a particular statement in
“the Notice to Appear.” Ibid. More simply, it could have
required the government to provide the information, full
stop.
Once more, too, the government’s response is less than
satisfying. It suggests that the “Notice to Appear” dis-
cussed in §1229(e)(1) isn’t the same “notice to appear” de-
scribed in §1229(a)(1). No, the government says, by using
capital letters in §1229(e)(1) Congress sought to prescribe
only what must be included in a Department of Homeland
Security form entitled “Notice to Appear.” But that much
10 NIZ-CHAVEZ v. GARLAND
Opinion of the Court
is hard to see. Section 1229(e)(1)’s discussion about what
must be included in a notice to appear resides just a couple
doors down from the provisions at issue before us, and it
seems pretty clearly to modify those provisions in certain
special circumstances. Meanwhile, the Department of
Homeland Security form exists only by regulation and the
department can change that regulation any time. Maybe,
too, there is another explanation for the capital letters.
Maybe they simply reflect how clear it was by the time Con-
gress added §1229(e)(1) in 2006—a decade after IIRIRA’s
adoption—that a notice to appear is a specific document in
which the government can (and must) “include” the re-
quired certification.3
Next comes §1229a(b)(7). It states that an alien who fails
to appear for his removal proceedings is typically ineligible
for relief if, “at the time of the notice described in paragraph
(1) or (2) of section 1229(a),” the government supplies oral
as well as written notice of the time and place of the re-
moval proceedings and the consequences of failing to ap-
pear. §1229a(b)(7). Again, the law seems to speak of the
charging document as a discrete thing, using a definite ar-
ticle with a singular noun (“the notice”). And by speaking
of “the notice” being served at a particular “time” the stat-
ute seems to equate service with a discrete moment, not an
ongoing endeavor. To be sure, one could reply (as the gov-
ernment and dissent do) that “the time of the notice” refers
to the moment when the final installment arrives. See post,
at 13–14. But if that’s what Congress meant, this was
——————
3 Even the dissent declines to endorse the government’s interpretation
of §1229(e)(1). Instead, it merely repeats the anodyne point that singular
articles are sometimes used “with a thing delivered in constituent in-
stallments.” Post, at 14. But that observation cuts little ice in this con-
text for reasons we’ve already explored in Part II–A, supra. The dissent
also fails to explain why Congress would have gone to the trouble of in-
sisting in §1229(e)(1) that “the Notice to Appear” contain additional in-
formation if it really meant only to require the government to provide
that information whenever and however it pleases.
Cite as: 593 U. S. ____ (2021) 11
Opinion of the Court
surely an awkward way of saying so.
Section 1229(a)(2) adds to the government’s growing list
of problems. That provision applies when officials wish to
change the alien’s hearing date. It requires the government
to serve “a written notice” specifying “the new time or place
of the proceedings” and the “consequences . . . of failing . . .
to attend such proceedings.” §1229(a)(2)(A) (emphasis
added). The government does not argue this statute con-
templates multiple documents. And if that’s the case—if
§1229(a)(2) anticipates a single document—it’s not exactly
obvious why the phrase “a notice to appear” found next door
in §1229(a)(1) should operate differently.4
Finally, there is the statute’s history and the govern-
ment’s initial response to it. Before IIRIRA, the govern-
ment began removal proceedings by issuing an “order to
show cause”—the predecessor of today’s “notice to appear.”
Back then, the law expressly authorized the government to
specify the place and time for an alien’s hearing “in the or-
der to show cause or otherwise.” §1252b(a)(2)(A) (1994 ed.)
(emphasis added). IIRIRA changed all that. It changed the
name of the charging document—and it changed the rules
governing the document’s contents. Now time and place in-
formation must be included in a notice to appear, not “or
otherwise.” Nor was the alteration an insensible one. Re-
call that IIRIRA also created the stop-time rule and pegged
it to the service of a notice to appear. A rational Congress
easily could have thought that measuring an alien’s period
of residence against the service date of a discrete document
——————
4 The dissent seeks to raise the cudgel on the government’s behalf, ar-
guing that §1229(a)(2) does permit multiple documents. Post, at 14-15.
But on the dissent’s reading, the statute would authorize the government
to (1) hand an alien one document with a new time for his hearing, (2)
follow up at its leisure with a second document containing the new hear-
ing date, and (3) add a third document later still explaining the conse-
quences of failing to appear. To state the theory may be enough to ex-
plain why the government declines to press it.
12 NIZ-CHAVEZ v. GARLAND
Opinion of the Court
was preferable to trying to measure it against a constella-
tion of moving pieces.
Notably, too, the year after Congress adopted IIRIRA the
government proposed a rule to create “the Notice to Appear,
Form I–862, replacing the Order to Show Cause, Form I–
221.” See 62 Fed. Reg. 449 (1997). In the preamble to its
proposed rule, the government expressly acknowledged
that “the language of the amended Act indicat[es] that the
time and place of the hearing must be on the Notice to Ap-
pear.” Ibid. (emphasis added). We don’t mention this, as
the dissent supposes, in support of some argument that
“post-enactment regulatory history” should overcome “the
otherwise-best interpretation of the statute.” Post, at 16.
Rather, we mention it only to observe that even the party
now urging otherwise once read the statute just as we do.
To the extent that dissent accuses us of being “literalists,”
it seems the literalists once infiltrated the Executive
Branch too. Post, at 10.5
Perhaps, though, what’s really going on here has nothing
to do with labels like that. Perhaps there’s a simpler expla-
nation. Perhaps when Congress adopted IIRIRA everyone
understood that it required a single fully compliant docu-
ment to trigger the stop-time rule. Perhaps the government
has resisted the law’s demands only because they leave its
officials with less flexibility than they once had. Regard-
less, when interpreting this or any statute, we do not aim
for “literal” interpretations, but neither do we seek to in-
dulge efforts to endow the Executive Branch with maxi-
mum bureaucratic flexibility. We simply seek the law’s or-
dinary meaning. Today, a long parade of textual and
contextual clues persuade us of this statute’s ordinary
——————
5 It makes no difference either that the Executive Branch tempered its
candor by promising later in its proposed rule to provide a single notice
only “where practicable.” Post, at 16. That the government let slip (at
least once) that it understood the plain import of IIRIRA’s revisions re-
mains telling.
Cite as: 593 U. S. ____ (2021) 13
Opinion of the Court
meaning. If, in the process of discerning that meaning, we
happen to consult grammar and dictionary definitions—
along with statutory structure and history—we do so be-
cause the rules that govern language often inform how or-
dinary people understand the rules that govern them.
III
Ultimately, the government is forced to abandon any pre-
tense of interpreting the statute’s terms and retreat to pol-
icy arguments and pleas for deference. The government ad-
mits that producing compliant notices has proved taxing
over time. It may not know the availability of hearing of-
ficers’ schedules at the time it would prefer to initiate pro-
ceedings against aliens. Nor, the government contends,
does it make sense to include time and place information in
a notice to appear when the statute allows it to amend the
time and place by serving a supplemental notice. Beyond
all that, the government stresses, its own (current) regula-
tions authorize its practice. The dissent expands on all
these points at length. Post, at 17–21. But as this Court
has long made plain, pleas of administrative inconvenience
and self-serving regulations never “justify departing from
the statute’s clear text.” Pereira, 585 U. S., at ___ (slip op.,
at 18).
Besides, even viewed in isolation the government’s policy
arguments are hardly unassailable. If the government
finds filling out forms a chore, it has good company. The
world is awash in forms, and rarely do agencies afford indi-
viduals the same latitude in completing them that the gov-
ernment seeks for itself today. Take this example: Asylum
applicants must use a 12-page form and comply with 14
single-spaced pages of instructions. Failure to do so
properly risks having an application returned, losing any
chance of relief, or even criminal penalties. DHS, I–589,
Application for Asylum and for Withholding of Removal:
Instructions, pp. 5, 14; DHS, I–589 Form. Nor is it obvious
14 NIZ-CHAVEZ v. GARLAND
Opinion of the Court
the government faces an insurmountable chore here. As we
have seen, once the government serves a compliant notice
to appear, IIRIRA permits it to send a supplemental notice
amending the time and place of an alien’s hearing if logis-
tics require a change. See 8 U. S. C. §1229(a)(2).
To be sure, the government seeks to leverage this statu-
tory feature to its further advantage. Because it may issue
a supplemental notice changing the time and place of the
alien’s hearing, the government reasons, requiring an ini-
tial and fully compliant notice serves no meaningful pur-
pose. But that much does not follow. True, the government
can change the time and place if it must. As written,
though, the statute allows the government to invoke the
stop-time rule only if it furnishes the alien with a single
compliant document explaining what it intends to do and
when. We are no more entitled to denigrate this modest
statutory promise as some empty formality than we might
dismiss as pointless the rules and statutes governing the
contents of civil complaints or criminal indictments.
Just consider the alternative. On the government’s ac-
count, it would be free to send a person who is not from this
country—someone who may be unfamiliar with English
and the habits of American bureaucracies—a series of let-
ters. These might trail in over the course of weeks, months,
maybe years, each containing a new morsel of vital infor-
mation. All of which the individual alien would have to save
and compile in order to prepare for a removal hearing. And
as soon as the last letter arrives, the alien’s ability to accrue
time toward the residency requirement would be suspended
indefinitely. Nor is this a wild hypothetical. At oral argu-
ment the government contended “[t]here’s nothing that tex-
tually limits us” from proceeding in just this fashion. Tr. of
Oral Arg. 47.
The dissent’s policy arguments stretch even further than
the government’s. It suggests that the best way to help al-
iens is to rule against the alien before us. Post, at 4–5, 17–
Cite as: 593 U. S. ____ (2021) 15
Opinion of the Court
21. Unsurprisingly, however, neither Mr. Niz-Chavez nor
any of the immigration policy advocates who have filed ami-
cus briefs in this Court share that assessment. And how
does the dissent arrive at its judgment anyway? It specu-
lates the government might respond to our decision by dis-
advantaging aliens in one of two ways. First, it might am-
bush aliens with last-minute notices. See post, at 19.
Alternatively, it might issue compliant notices that trigger
the stop-time rule as early as possible, only to amend the
time-and-place information shortly before the hearing date.
Ibid. But the dissent’s preferred construction does nothing
to foreclose either of these possibilities. And even the dis-
sent seems to think another outcome is more likely yet: It
says the government may continue serving notices without
time and place information in the first instance, only to trig-
ger the stop-time rule later by providing fully compliant no-
tices with time and place information once a hearing date
is available. Post, at 18. Nor does the dissent question that
this result would help—and certainly not hurt—most al-
iens.
In the end, though, all this speculation is beside the point.
The dissent tries to predict how the government will react
to a ruling that requires it to follow the law and then pro-
ceeds to assess the resulting “costs” and “benefits.” Post, at
17, 20–21. But that kind of raw consequentialist calcula-
tion plays no role in our decision. Instead, when it comes to
the policy arguments championed by the parties and the
dissent alike, our points are simple: As usual, there are (at
least) two sides to the policy questions before us; a rational
Congress could reach the policy judgment the statutory text
suggests it did; and no amount of policy-talk can overcome
a plain statutory command. Our only job today is to give
the law’s terms their ordinary meaning and, in that small
way, ensure the federal government does not exceed its
statutory license. Interpreting the phrase “a notice to ap-
16 NIZ-CHAVEZ v. GARLAND
Opinion of the Court
pear” to require a single notice—rather than 2 or 20 docu-
ments—does just that.
*
At one level, today’s dispute may seem semantic, focused
on a single word, a small one at that. But words are how
the law constrains power. In this case, the law’s terms en-
sure that, when the federal government seeks a procedural
advantage against an individual, it will at least supply him
with a single and reasonably comprehensive statement of
the nature of the proceedings against him. If men must
turn square corners when they deal with the government,
it cannot be too much to expect the government to turn
square corners when it deals with them.
The judgment of the Court of Appeals for the Sixth Cir-
cuit is
Reversed.
Cite as: 593 U. S. ____ (2021) 1
KAVANAUGH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 19–863
_________________
AGUSTO NIZ-CHAVEZ, PETITIONER v. MERRICK B.
GARLAND, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[April 29, 2021]
JUSTICE KAVANAUGH, with whom THE CHIEF JUSTICE
and JUSTICE ALITO join, dissenting.
Agusto Niz-Chavez is a native and citizen of Guatemala.
In 2005, Niz-Chavez unlawfully entered the United States
through the southern border and eventually settled in De-
troit. In 2013, the Government initiated removal proceed-
ings against Niz-Chavez. After the removal hearings, an
Immigration Judge ordered Niz-Chavez to either voluntar-
ily depart from the United States within 30 days or else be
removed to Guatemala.
The Court today casts aside the Immigration Judge’s or-
der and allows Niz-Chavez to go back to immigration court
to seek cancellation of removal. Why? The Court says that
Niz-Chavez did not receive proper notice of his removal pro-
ceedings because he received notice in two documents ra-
ther than one. The Court so holds even though Niz-Chavez
(i) received all the statutorily required information about
his removal proceedings, including the time and place of the
removal hearing; (ii) was not prejudiced in any way by re-
ceiving notice in two documents rather than one; and (iii) in
fact appeared with counsel at his scheduled removal hear-
ing.
The Court’s decision contravenes Congress’s detailed re-
quirements for a noncitizen to obtain cancellation of re-
moval. When the Government seeks to remove a noncitizen
2 NIZ-CHAVEZ v. GARLAND
KAVANAUGH, J., dissenting
such as Niz-Chavez who is unlawfully in the country, it be-
gins the process by sending the noncitizen a notice to ap-
pear for removal proceedings. 8 U. S. C. §1229(a)(1). In the
subsequent removal proceedings before an immigration
judge, the noncitizen may contest the grounds for removal
and may also ask the immigration judge to grant various
forms of relief, including discretionary cancellation of re-
moval. §§1229b(a), (b)(1).
A noncitizen’s eligibility for cancellation of removal de-
pends in part on when the noncitizen received notice of the
removal proceeding. To be eligible, a noncitizen who is a
nonpermanent resident must have been continuously pre-
sent in the United States for at least 10 years.
§1229b(b)(1)(A). The 10-year clock stops, however, when
the noncitizen is served “a notice to appear” for the removal
proceeding. §1229b(d)(1).
Because service of a notice to appear stops the 10-year
clock and may make the noncitizen ineligible for cancella-
tion of removal, noncitizens who want to apply for cancella-
tion of removal (and courts) must know what constitutes a
notice to appear. Federal immigration law answers that
question. The relevant statute defines a notice to appear as
“written notice,” which must be served in person or by mail
and which provides certain required information, such as
the alleged grounds for removal and the time and place of
the removal hearing. §1229(a)(1); see Pereira v. Sessions,
585 U. S. ___, ___–___ (2018) (slip op., at 13–14)
(§1229(a)(1) provides the definition of a notice to appear for
purposes of the 10-year clock).
In this case, the United States commenced removal pro-
ceedings against Niz-Chavez in 2013—eight years after he
entered the United States. The Government served two
documents on Niz-Chavez. In March 2013, Niz-Chavez re-
ceived the first document, which notified him that he was
being charged as removable because he was unlawfully in
the country. It explained that he would have to appear for
Cite as: 593 U. S. ____ (2021) 3
KAVANAUGH, J., dissenting
a removal hearing at the immigration court in Detroit at a
time to be set in the future. Two months later, he received
the second document, which notified him that the removal
hearing would occur at the immigration court in Detroit on
June 25, 2013, at 8:30 a.m. The two documents together
included all the statutorily required information. See
§1229(a)(1). Niz-Chavez appeared with counsel at the
scheduled hearing on June 25, 2013.
At the hearing, Niz-Chavez conceded that he was remov-
able because he was unlawfully in the country. Moreover,
Niz-Chavez did not request cancellation of removal or sug-
gest that he was eligible for cancellation of removal, pre-
sumably because he received the notice to appear long be-
fore he had accrued 10 years of continuous presence in the
United States. After further hearings, an Immigration
Judge found Niz-Chavez removable as charged and ordered
Niz-Chavez to either voluntarily depart from the United
States within 30 days or else be removed to Guatemala.
Niz-Chavez now argues that he in fact should be eligible
for cancellation of removal. He emphasizes that the contin-
uous-presence clock stops upon service of “a notice to ap-
pear.” §1229b(d)(1). That language, according to Niz-
Chavez, means that, to stop the 10-year clock, the Govern-
ment must provide all the required information in one doc-
ument, rather than two. The Government responds that the
statute includes no such requirement and that the Govern-
ment may serve a notice to appear in two documents, with
the time and place of the hearing coming in the second doc-
ument and the 10-year clock stopping then.
The Court today agrees with Niz-Chavez that, in order to
stop the 10-year clock, the Government must provide writ-
ten notice in one document, not two. I find the Court’s con-
clusion rather perplexing as a matter of statutory interpre-
tation and common sense. I therefore respectfully dissent.
4 NIZ-CHAVEZ v. GARLAND
KAVANAUGH, J., dissenting
I
A
This is not the Court’s first case involving a notice to ap-
pear for removal proceedings. In Pereira v. Sessions, the
Court held that a notice that does not provide the time and
place of the hearing does not stop the 10-year continuous-
presence clock. 585 U. S. ___, ___ (2018) (slip op., at 2). Be-
fore Pereira, the Government (in some Circuits) could send
two documents as it did in this case and stop the clock when
it served the first, incomplete document. See id., at ___–
___, and n. 4 (slip op., at 7–8, and n. 4). In the wake of Pe-
reira, however, service of the first document no longer stops
the clock. The clock does not stop until the Government
also provides the time and place of the hearing.
In Pereira, the Court did not address the distinct question
whether the Government may serve a notice to appear in
two documents instead of one, with the time and place of
the hearing coming in the second document and the clock
then stopping upon service of the second document. We
must decide that question here.
After Pereira, why would the Government still provide
notice in two documents instead of one comprehensive doc-
ument? Simple. When the Government wants to inform
the noncitizen that it is initiating removal proceedings, the
Government may not yet know exactly when the hearing
will occur. So the Government sometimes will first inform
the noncitizen of the charges, and only later provide the ex-
act time and place of the hearing.
After Pereira, the Government gains no advantage by
providing notice in two documents, because the 10-year con-
tinuous-presence clock does not stop until the noncitizen
has also been served the statutorily required time and place
information. See id., at ___ (slip op., at 2). If anyone gains
an advantage from two-document notice after Pereira, it is
noncitizens. They can learn of the removal proceedings and
begin preparing a defense even before they receive notice of
Cite as: 593 U. S. ____ (2021) 5
KAVANAUGH, J., dissenting
the time and place of the hearing. So receiving notice in
two documents can benefit noncitizens.
Even though receiving notice in two documents would
benefit noncitizens as a group by giving them more time to
prepare for hearings, Niz-Chavez understandably seeks to
advance his own interests in not having the 10-year clock
stopped in his individual case. Niz-Chavez says that to stop
the 10-year clock, the Government must provide a single
document with all the statutorily required information, be-
cause the statute requires “a notice to appear.”
B
The Court agrees with Niz-Chavez, resting its conclusion
almost entirely on the word “a” in the statutory phrase “a
notice to appear.” As the Court notes, Congress provided
that the 10-year continuous-presence clock stops when the
noncitizen is served “a notice to appear” for removal pro-
ceedings. 8 U. S. C. §1229b(d)(1).1 The Court says that the
article “a” means that the 10-year continuous-presence
clock stops only if the Government serves a single document
with all the required information to initiate the removal
proceedings, not two documents with all the required infor-
mation. In my respectful view, the Court’s textual interpre-
tation contains two independent flaws, either of which suf-
fices to defeat the Court’s conclusion.
First, the Court’s analysis disregards the statutory defi-
nition of a notice to appear.
When a statute defines a term, we ordinarily follow the
statutory definition. Digital Realty Trust, Inc. v. Somers,
583 U. S. ___, ___ (2018) (slip op., at 9); Burgess v. United
States, 553 U. S. 124, 129–130 (2008). Here, the statute de-
fines a notice to appear in a somewhat oddly worded way.
——————
1 As relevant here, the statute provides: “For purposes of this section,
any period of continuous residence or continuous physical presence in the
United States shall be deemed to end . . . when the alien is served a notice
to appear under section 1229(a) of this title.” §1229b(d)(1).
6 NIZ-CHAVEZ v. GARLAND
KAVANAUGH, J., dissenting
The definition is located in the statutory provision that
specifies how the Government must initiate removal pro-
ceedings. That provision states: “written notice (in this sec-
tion referred to as a ‘notice to appear’) shall be given in per-
son to the alien (or, if personal service is not practicable,
through service by mail to the alien or to the alien’s counsel
of record, if any) specifying” 10 categories of information
relevant to the removal proceedings. §1229(a)(1) (emphasis
added); see also Pereira, 585 U. S., at ___–___ (slip op., at
13–14) (§1229(a)(1) provides the definition of a notice to ap-
pear for purposes of the 10-year clock).2
In other words, the statute provides that the 10-year con-
——————
2 Section 1229(a)(1) provides: “In removal proceedings under section
1229a of this title, written notice (in this section referred to as a ‘notice
to appear’) shall be given in person to the alien (or, if personal service is
not practicable, through service by mail to the alien or to the alien’s coun-
sel of record, if any) specifying the following:
“(A) The nature of the proceedings against the alien.
“(B) The legal authority under which the proceedings are conducted.
“(C) The acts or conduct alleged to be in violation of law.
“(D) The charges against the alien and the statutory provisions alleged
to have been violated.
“(E) The alien may be represented by counsel and the alien will be pro-
vided (i) a period of time to secure counsel under subsection (b)(1) and
(ii) a current list of counsel prepared under subsection (b)(2).
“(F)(i) The requirement that the alien must immediately provide (or
have provided) the Attorney General with a written record of an address
and telephone number (if any) at which the alien may be contacted re-
specting proceedings under section 1229a of this title.
“(ii) The requirement that the alien must provide the Attorney General
immediately with a written record of any change of the alien’s address or
telephone number.
“(iii) The consequences under section 1229a(b)(5) of this title of failure
to provide address and telephone information pursuant to this subpara-
graph.
“(G)(i) The time and place at which the proceedings will be held.
“(ii) The consequences under section 1229a(b)(5) of this title of the fail-
ure, except under exceptional circumstances, to appear at such proceed-
ings.”
Cite as: 593 U. S. ____ (2021) 7
KAVANAUGH, J., dissenting
tinuous-presence clock stops upon service of “a notice to ap-
pear,” and then goes on to define a notice to appear as “writ-
ten notice.” The statute nowhere says that written notice
must be provided in a single document. Rather, the statute
lists three essential requirements for the Government to
notify a noncitizen of removal proceedings: (i) the notice
must be “written notice”; (ii) it must be “given in person,” if
practicable, or else by mail; and (iii) the notice must include
the required information, such as the grounds for removal
and the time and place of the hearing. §1229(a)(1). Nothing
more. But the Court today nonetheless imposes a fourth,
atextual single-document requirement for the notice to stop
the 10-year clock.
If Congress actually wanted to require a single document
to stop the 10-year clock, Congress easily could have (and
surely would have) said so. After all, the statute supplies
comprehensive and detailed instructions about how the
Government must serve a notice to appear and what infor-
mation must be included. But the statute never says that
all the required information must appear in a single docu-
ment.
Notice delivered in two installments can readily satisfy
all the requirements of a notice to appear. Consider the no-
tice served on Niz-Chavez in this case. It was written no-
tice. It was properly served. It contained all the statutorily
required information, including the time and place of the
hearing. The statute contemplates nothing more of a notice
to appear.
Instead of applying that clear statutory definition of a no-
tice to appear as written notice, the Court dismisses the def-
inition’s relevance on a novel basis not raised by Niz-
Chavez, not advanced by any amicus brief, and not adopted
by any lower courts—the placement of a quotation mark.
The Court reasons that the quotation marks in the statu-
tory definition appear around only the words “notice to ap-
8 NIZ-CHAVEZ v. GARLAND
KAVANAUGH, J., dissenting
pear,” rather than around “a notice to appear.” On that ba-
sis, the Court insists that the phrase “written notice” de-
fines only the three words “notice to appear”—without the
“a.” And substituting “written notice” for “notice to appear”
in the statutory provision addressing the 10-year clock
would still require “a” written notice, which the Court in-
terprets to mean a single document.
According to the Court, Congress thus imposed a single-
document requirement for stopping the 10-year clock not by
actually saying that a single document is required, but ra-
ther by placing quotation marks around the words a “notice
to appear” rather than “a notice to appear” in the statutory
definition. There is a good reason that Niz-Chavez did not
raise this argument, that no amicus brief advanced this ar-
gument, and that no court has adopted it. The Court’s the-
ory is mistaken and implausible. If Congress wanted to re-
quire a single document in order to stop the 10-year clock,
it is hard to imagine a more obscure way of doing so. Alt-
hough “the meaning of a statute will typically heed the com-
mands of its punctuation,” “a purported plain-meaning
analysis based only on punctuation is necessarily incom-
plete and runs the risk of distorting a statute’s true mean-
ing.” United States Nat. Bank of Ore. v. Independent Ins.
Agents of America, Inc., 508 U. S. 439, 454 (1993). The
Court has declined to rely on “the deployment of quotation
marks” when “all of the other evidence from the statute
points the other way.” Id., at 455.
So it is here. The Court’s quotation-mark theory contra-
venes the statutory text and structure. The text and struc-
ture make clear that the notice that initiates removal pro-
ceedings is the same notice that stops the 10-year clock. See
§§1229(a)(1), 1229b(d)(1). But the Court’s interpretation
treats them as different by imposing different requirements
for a notice that stops the 10-year clock and for a notice that
initiates removal proceedings. To reiterate, to initiate re-
moval proceedings, the Government must provide the
Cite as: 593 U. S. ____ (2021) 9
KAVANAUGH, J., dissenting
noncitizen with “written notice.” The Court does not dis-
pute (and cannot dispute) that the Government can initiate
removal proceedings by providing written notice in more
than one document, so long as the notice encompasses all
the statutorily required information. Nonetheless, for that
written notice to also stop the 10-year clock, the Court says
that the written notice must be provided in a single docu-
ment rather than two documents because the 10-year clock
provision requires “a notice to appear.” Stated otherwise,
under the Court’s novel theory, the Government may use
two documents to initiate removal proceedings, but the
Government must use a single document if it also wants to
stop the continuous-presence clock—even though Congress
explicitly linked the notice that stops the clock to the notice
that initiates removal proceedings. Put simply, the Court’s
argument based on the placement of a quotation mark con-
travenes the straightforward statutory structure and
makes little sense.
The Court’s novel interpretation also creates another in-
consistency. Section 1229a(b)(5) explains that a noncitizen
who fails to attend a removal hearing may be removed in
absentia if he had previously been provided with “written
notice” under §1229(a)(1). Under the Court’s interpreta-
tion, it is hard to see why such notice would need to be pro-
vided in a single document—there are no dangling uses of
“a” to latch onto in that provision. It makes no sense that
two-document notice could justify removal in absentia but
could not stop the continuous-presence clock.
In sum, the Court’s theory for disregarding the statutory
definition is both novel and unpersuasive. The Court’s quo-
tation-mark argument fails because it distorts the “stat-
ute’s true meaning.” United States Nat. Bank of Ore., 508
U. S., at 454. When the statutory definition of a notice to
appear as “written notice” is correctly applied, instead of
sidestepped, it readily resolves what should have been a
very simple statutory case.
10 NIZ-CHAVEZ v. GARLAND
KAVANAUGH, J., dissenting
Second, even if there were no definition in this statute
and we therefore had to focus solely on the term “a notice to
appear” in isolation, the Court’s interpretation of that
phrase would still fail.
Ordinary meaning and literal meaning are two different
things. And judges interpreting statutes should follow or-
dinary meaning, not literal meaning. See, e.g., McBoyle v.
United States, 283 U. S. 25, 26 (1931) (in ordinary speech,
“vehicle” does not cover an aircraft, even though “etymolog-
ically it is possible to use the word” that way); see also A.
Scalia, A Matter of Interpretation 24 (1997) (a “good textu-
alist is not a literalist”). The Court here, however, relies
heavily on literal meaning: The Court interprets the word
“a” in the phrase “a notice to appear” to literally require the
Government to serve one (and only one) document. In the
Court’s words, “a notice” requires “ ‘a’ single document con-
taining the required information.” Ante, at 5.
As a matter of ordinary parlance, however, the word “a”
is not a one-size-fits-all word. As relevant here, the word
“a” is sometimes used to modify a single thing that must be
delivered in one package, but it is sometimes used to modify
a single thing that can be delivered in multiple install-
ments, rather than in one installment. Context is critical
to determine the proper meaning of “a” in a particular
phrase. Consider some examples. A car dealership that
promises to ship “a car” to a customer has not fulfilled its
obligation if it sends the customer one car part at a time.
By contrast, it is common to submit “a job application” by
sending a resume first and then references as they are
available. When the final reference arrives, the applicant
has submitted “a job application.” Similarly, an author
might submit chapters of a novel to an editor one at a time,
as they are ready. Upon submission of the final chapter,
the author undoubtedly has submitted “a manuscript.” “A
contract” likewise can be “established by multiple docu-
ments.” Secretary of U. S. Air Force v. Commemorative Air
Cite as: 593 U. S. ____ (2021) 11
KAVANAUGH, J., dissenting
Force, 585 F. 3d 895, 901 (CA6 2009). The list goes on.
As those examples demonstrate, and as the Court
acknowledges, the article “a” can be perfectly consistent
with delivery in installments. And in this case, the better
reading of the article “a” is that it does not require delivery
in only one installment. A notice to appear for a removal
hearing is more like a job application, a manuscript, and a
contract than it is like a car. A notice to appear conveys
information, like a job application, a manuscript, and a con-
tract. And unlike a car, a notice to appear is easy for the
recipient to assemble from its constituent installments.
The Court prefers a different analogy. To buttress its in-
terpretation, the Court analogizes the notice to appear to
legal documents that initiate criminal cases, like indict-
ments. The Court reasons that “an indictment” tradition-
ally provides all the required information in a single docu-
ment, so “a notice to appear” must do so as well. Ante, at
7–8.
But that analogy is misplaced. An indictment generally
provides charging information. By contrast, a notice to ap-
pear provides charging information and logistical calendar-
ing information that is not always knowable at the time of
charging. As the Court said in Pereira, a notice to appear
is more than just a charging document because it serves
“another equally integral function: telling a noncitizen
when and where to appear.” See 585 U. S., at ___, n. 7 (slip
op., at 13, n. 7). In other words, a notice to appear is akin
to a charging document plus a calendaring document. It is
therefore easy to understand why a notice to appear might
require two installments while an indictment requires only
one. The analogy to an indictment actually cuts strongly
against the Court’s interpretation.
In addition, interpreting “a notice to appear” to allow de-
livery in two documents makes much more sense in context
here because it allows the Government to alert the nonciti-
zen of the charges well before a time and place have been
12 NIZ-CHAVEZ v. GARLAND
KAVANAUGH, J., dissenting
set for the hearing. That affords the noncitizen more time
to prepare a defense. And a noncitizen suffers no prejudice
from receiving notice in two documents rather than one, as
Niz-Chavez’s case amply demonstrates. In short, a noncit-
izen gains something and loses nothing meaningful from re-
ceiving all the information in two documents. (The same
cannot be said for receiving a car in two installments, for
example.)
The Court’s interpretation, by contrast, spawns a litany
of absurdities. For example, under the Court’s interpreta-
tion, the 10-year clock does not stop if the noncitizen re-
ceives the two separate documents on the same day but in
different envelopes. But the clock does stop if the noncitizen
receives the two documents in one envelope. What sense
does that make? Moreover, if a noncitizen receives a first
document without a time and place and a second document
with only the time and place, that does not stop the clock
under the Court’s rule. But if a noncitizen receives a first
document with all the information including the time and
place and then a second document with all the information
and a new time and place, that first document does stop the
clock under the Court’s rule. What sense does that make?
Indeed, the Court deems Niz-Chavez to have never re-
ceived proper notice of the hearing even though he received
all the statutorily required information and actually ap-
peared with counsel at the hearing. Again, what sense does
that make?
The Court blames those absurdities on Congress and says
that Congress would have chosen to omit the article “a” if it
wanted to allow two documents. The Court’s apparent the-
ory is that Congress deliberately employed the word “a” to
obliquely impose an additional procedural obligation on the
Government when the Government initiates removal pro-
ceedings against a noncitizen and wants to stop the 10-year
clock. That theory is no more plausible than the Court’s
Cite as: 593 U. S. ____ (2021) 13
KAVANAUGH, J., dissenting
first theory that Congress used the placement of a quota-
tion mark to impose a new procedural obligation. Once
again, if Congress wanted to require the Government to
send a notice to appear in one document rather than two
documents in order to stop the 10-year clock, Congress eas-
ily could have said so, and undoubtedly would have said so.
But it did not. The bottom line is that this new single-doc-
ument requirement comes from this Court, not Congress.
The Court’s attempt to deflect blame is unpersuasive.
In sum, the Court’s interpretation of the statutory text is
wrong for two independent reasons, either of which suffices
to defeat the Court’s conclusion. First, the statutory defini-
tion of a notice to appear as “written notice” establishes that
“a notice to appear” can be delivered in two installments.
Second, even if there were no statutory definition, the best
reading of “a notice to appear” in this context is that the
notice can be provided in two installments.
C
The Court seeks to support its textual analysis with ad-
ditional arguments based on structure, statutory history,
and post-enactment regulatory history. Those arguments
do not help.
First, start with structure. The Court says that three
other statutory provisions—§§1229(e)(1), 1229a(b)(7), and
1229(a)(2)—imply that a notice to appear is a single docu-
ment. Ante, at 9–11. But none of the three provisions ac-
tually requires the Government to serve a notice to appear
in a single document. Moreover, the language in all three
provisions is consistent with a two-document notice to ap-
pear.
The first provision, §1229(e)(1), addresses the Govern-
ment’s notice obligations when it seizes a noncitizen at a
domestic violence shelter or other location as a precursor to
removal proceedings. In those cases, §1229(e)(1) says that
“the Notice to Appear shall include” a statement that the
14 NIZ-CHAVEZ v. GARLAND
KAVANAUGH, J., dissenting
Government has complied with certain protections for
noncitizens. The Court says that the phrase “the Notice”
implies a single document because it pairs an article with a
singular noun. Ante, at 9–10. But the reference in
§1229(e)(1) to “the Notice to Appear” does not require or
even contemplate a single document. Like the article “a,”
the article “the” can be used with a thing delivered in con-
stituent installments—consider “the job application,” “the
manuscript,” or “the contract.” Section 1229(e)(1) simply
requires the Government to include the necessary state-
ment of compliance in one of the documents constituting the
notice to appear.
The second provision, §1229a(b)(7), concerns noncitizens
who fail to appear at removal proceedings and are ordered
removed in absentia. Section 1229a(b)(7) says that a
noncitizen in that situation is ineligible for certain kinds of
relief from removal for 10 years if the noncitizen was pro-
vided oral notice “at the time of ” the written notice to ap-
pear. §1229a(b)(7). The Court argues that the provision’s
reference to “the time of ” the written notice implies that the
written notice is necessarily delivered at one particular mo-
ment, and therefore in one single document. Ante, at 10–
11. On the contrary, the reference in §1229a(b)(7) to “the
time of ” the written notice is entirely consistent with two-
document notice. Notice qualifies as “a notice to appear”
only when it includes the time and place of the removal
hearing. Pereira, 585 U. S., at ___, ___ (slip op., at 2, 9). So
when the Government uses two documents to serve a notice
to appear, “the time of ” the written notice is the time when
the noncitizen is served the second installment that pro-
vides the time and place of the hearing.
The third provision, §1229(a)(2), supplies a procedure for
changing the time or place of a removal hearing. It requires
the Government to give a noncitizen “a written notice” of
the new time and place. The Court concludes that the ref-
erence to “a written notice” requires a single document, and
Cite as: 593 U. S. ____ (2021) 15
KAVANAUGH, J., dissenting
so “a notice to appear” must as well. Ante, at 11. As a prac-
tical matter, the Government may need only one document
to change the time or place of the hearing. But the word “a”
in the phrase “a written notice” does not require the Gov-
ernment to use a single document, just as the word “a” in
the phrase “a notice to appear” does not. Section 1229(a)(2),
like the other two provisions, is entirely consistent with the
Government’s reading of the statute.
Second, the Court also invokes statutory history to sup-
port its interpretation. But the statutory history does not
advance the Court’s argument. Before 1996, the immigra-
tion statute required the Government to serve an “order to
show cause” rather than a notice to appear. 8 U. S. C.
§1252b(a)(1) (1994 ed.). Back then, the statute allowed the
Government to notify a noncitizen of the time and place of
the removal hearing either “in the order to show cause or
otherwise.” §1252b(a)(2)(A) (1994 ed.). The pre-1996 stat-
ute similarly defined an order to show cause as “written no-
tice”—a broad term that does not require one document.
§1252b(a)(1) (1994 ed.). In 1996, Congress made some sig-
nificant changes. Congress replaced suspension of deporta-
tion with cancellation of removal. Illegal Immigration Re-
form and Immigrant Responsibility Act, §§304(a), 308(b)(7),
110 Stat. 3009–587, 3009–615 (codified at 8 U. S. C.
§1229b). Congress extended the continuous-presence re-
quirement to 10 years for nonpermanent residents. 110
Stat. 3009–594 (codified at §1229b(b)(1)(A)). Congress also
changed the order to show cause to a notice to appear, and
required the Government to provide the time and place in-
formation in that notice to appear. 110 Stat. 3009–588 (cod-
ified at §1229(a)(1)(G)(i)). And Congress also provided for
the first time that service of the notice to appear would stop
the continuous-presence clock. 110 Stat. 3009–595 (codified
at §1229b(d)(1)).
But amid all those changes, Congress never required that
a notice to appear include all the required information in a
16 NIZ-CHAVEZ v. GARLAND
KAVANAUGH, J., dissenting
single document. The Court nonetheless speculates that a
“rational Congress easily could have thought” it sensible to
peg the end of the continuous-presence clock to a single doc-
ument. Ante, at 11. Maybe so. But a rational Congress
also could have declined to impose a single-document re-
quirement. What matters is that the actual Congress de-
clined to impose a single-document requirement in 1996,
just as it had declined to do before 1996.
Third, the Court turns to post-enactment regulatory his-
tory. According to the Court, language in the preamble to
a 1997 notice of proposed rulemaking issued jointly by the
Immigration and Naturalization Service and the Executive
Office for Immigration Review suggests that those agencies
once believed that a single document was required. Ante,
at 12; see 62 Fed. Reg. 449. Even assuming that this exec-
utive agency interpretation (found in a preamble to a notice
of proposed rulemaking) could alter the otherwise-best in-
terpretation of the statute, the proposed rule that follows
the preamble undercuts the Court’s characterization of the
agencies’ 1997 position. The 1997 proposed rule stated that
the Government would include the time and place of the re-
moval hearing in the initial charging document “where
practicable.” Id., at 457 (emphasis added). And the pro-
posed rule gave alternative instructions for when time and
place information “is not contained” in the initial document.
Ibid. That formulation does not reflect a single-document
interpretation of the statute. So post-enactment regulatory
history does not help the Court any more than statutory
history; indeed, the post-enactment regulatory history ap-
pears in significant tension with the Court’s reading.
In the end, the Court’s arguments based on structure and
history all fail to answer a very simple question: If Congress
wanted all the information to be included in one document
in order to stop the 10-year clock, why did Congress not say
that all the information must be included in one document?
Cite as: 593 U. S. ____ (2021) 17
KAVANAUGH, J., dissenting
II
The Court concludes its opinion by suggesting that its de-
cision will rein in the Federal Government and produce pol-
icy benefits for noncitizens. But the Court’s decision will
not meaningfully benefit noncitizens going forward, and it
will ultimately benefit few if any noncitizens who have al-
ready been notified of their removal proceedings. Mean-
while, the Court’s decision will impose significant costs on
the immigration system, which of course means more back-
log for other noncitizens involved in other immigration
cases.
To be clear, demonstrating that the Court is wrong to pre-
dict policy benefits from its decision is not ignoring a “stat-
utory command” in favor of policy views. Ante, at 15. Ra-
ther, the point here is that the Court’s opinion both errs as
a matter of statutory interpretation and will not meaning-
fully help noncitizens, contrary to the Court’s prediction.
Start with the supposed policy benefit that the Court
identifies: The Court suggests that its decision will help
noncitizens by stopping the Government from sending nu-
merous documents (more than two) to noncitizens over a
period of months or even years, perhaps in an effort to con-
fuse them. But the Court does not point to any examples of
the Government actually serving a notice to appear in more
than two documents, or over a period of years. After all,
why would the Government do so, absent a need to resched-
ule a hearing? It would make no sense. Under the statute
as interpreted in Pereira, the Government cannot stop the
continuous-presence clock until it provides the time and
place of the removal hearing. And the immigration court
cannot commence the removal hearing until the Govern-
ment does so. So wasting years and sending multiple doc-
uments to serve a notice to appear would only work to the
Government’s disadvantage because it would delay the
hearing. The supposed “benefit” of the Court’s decision,
18 NIZ-CHAVEZ v. GARLAND
KAVANAUGH, J., dissenting
then, is simply to prevent the Government from doing some-
thing that it has no incentive to do in the first place. The
Court’s opinion cures a problem of its own imagination.
In fact, the Court’s decision will not alter the delivery of
notice in any meaningful way. Going forward, when the
Government wants to initiate the process of removing a
noncitizen before it knows with certainty the time and place
of the noncitizen’s initial removal hearing, the Government
can comply with today’s decision in one of three ways. None
of the three alternatives provides meaningful benefits for
noncitizens as compared to the Government’s current prac-
tice of sometimes using two documents, and two of the op-
tions are worse for noncitizens.
The first way that the Government can comply with to-
day’s decision is simply to do what it did in Niz-Chavez’s
case, with one minor change. The Government can still
send an initial document that informs the noncitizen of all
relevant information except the time and place of the hear-
ing, and then a second document that supplies the time and
place of the hearing. All that the Government needs to do
to comply with today’s decision and still stop the 10-year
clock is to repeat all the information from the first docu-
ment in the second document, or alternatively to provide a
copy of the first document when it serves the second. De-
livered together, the two attachments will form a single,
complete notice to appear even under the Court’s strained
interpretation, and therefore will stop the 10-year clock.
(Counsel for Niz-Chavez forthrightly conceded all of this at
oral argument. Tr. of Oral Arg. 24.) The Court insists that
this change in practice will still help noncitizens, but it fails
to explain how. The first document sent to Niz-Chavez in
this case informed him that he was required to carry the
document with him at all times. Especially in light of that
obligation, it is hard to see any meaningful benefit in the
Government’s resending the same initial document to a
noncitizen once the hearing has been scheduled.
Cite as: 593 U. S. ____ (2021) 19
KAVANAUGH, J., dissenting
But even if that first possible method of complying with
today’s decision would benefit noncitizens in some minimal
way, it is not clear that the Government will actually choose
that option. Instead, the Government can comply with to-
day’s decision in other ways that will leave noncitizens
worse off. As a second option, for example, the Government
may stop sending the first document at all and just wait
until it can provide all the information in one comprehen-
sive document—necessarily closer to the date of the hear-
ing. That would indisputably comply with today’s decision
but would disadvantage noncitizens by affording them less
time to prepare for removal hearings.
The third possible option is no better for noncitizens.
When the Government is ready to initiate removal proceed-
ings but does not know the time and place of a hearing, it
could comply with the Court’s decision by sending a docu-
ment with a placeholder time and place of the hearing and
then later serve a second document with the actual time
and place of the hearing. As counsel for Niz-Chavez con-
ceded at oral argument, doing so would comply with the
statute and allow the Government to stop the continuous-
presence clock upon service of the initial document rather
than the second document. Id., at 15. That option would
give noncitizens less time to accrue continuous presence
than when the Government includes the time and place
only in the second document. Moreover, that approach—
sending the noncitizen two different times or places—is a
recipe for confusion.
In short, the Court’s conclusion today will not necessarily
help noncitizens or constrain the Government going for-
ward.3
——————
3 The Court says that the immigration policy advocates who filed ami-
cus briefs in support of Niz-Chavez disagree with that assessment of the
consequences of today’s decision. But those briefs are especially con-
cerned with the Government stopping the clock with a notice that has a
20 NIZ-CHAVEZ v. GARLAND
KAVANAUGH, J., dissenting
But looking backwards, will the Court’s decision at least
supply a benefit to some noncitizens such as Niz-Chavez
who previously received a notice to appear in two docu-
ments? To begin with, any noncitizen who becomes eligible
for cancellation of removal notwithstanding the nonciti-
zen’s receipt of all the required information in writing be-
fore 10 years of continuous presence would receive a wind-
fall based on the thinnest of technicalities. Consider Niz-
Chavez himself. He received all the required information
before the 10-year clock had run, he showed up at the hear-
ing with counsel, and he suffered zero prejudice from receiv-
ing notice in two documents rather than one.
But in any event, that eligibility windfall is unlikely to
translate to any real-world benefit for many noncitizens in
Niz-Chavez’s position. To be sure, today’s decision means
that some noncitizens in Niz-Chavez’s position will now be-
come eligible for cancellation of removal. But that does not
mean that those noncitizens will actually receive cancella-
tion of removal as a result of today’s decision. Cancellation
of removal is discretionary. §§1229b(a), (b)(1). In other
words, today’s decision means only that immigration judges
have discretion to grant cancellation of removal for some
noncitizens who received notice in two documents.
And there is another apparent catch. Subject to a few
exceptions not relevant here, the number of noncitizens
who may receive cancellation of removal is capped by stat-
ute at only 4,000 per year. §1229b(e)(1). Those 4,000 spots
are “coveted and scarce”—so scarce, in fact, that in recent
years, “according to the Executive Office for Immigration
——————
placeholder date and then sending a later document with the actual date.
See, e.g., Brief for American Immigration Lawyers Association et al. as
Amici Curiae 15–19; Brief for Thirty-Three Former Immigration Judges
and Members of the Board of Immigration Appeals as Amici Curiae 18–
23. Yet as counsel for Niz-Chavez forthrightly conceded at oral argu-
ment, the approach adopted by the Court today will still allow that prac-
tice going forward. See Tr. of Oral Arg. 15.
Cite as: 593 U. S. ____ (2021) 21
KAVANAUGH, J., dissenting
Review, 3,500 cancellation of removal slots have been filled
on the first day” of the year. Matter of Castillo-Perez, 27
I. & N. Dec. 664, 669 (Atty. Gen. 2019). “The other 500 slots
are set aside to be granted to detained aliens throughout
the year.” Ibid. Perhaps a small handful of the noncitizens
who receive an eligibility windfall as a result of today’s de-
cision will ultimately also receive cancellation of removal.
But that is far from clear.
Meanwhile, the Court’s decision will impose substantial
costs and burdens on the immigration system, as the Gov-
ernment has detailed. Tr. of Oral Arg. 52–54. Because to-
day’s decision means that many more people who have been
in removal proceedings may be eligible for cancellation of
removal, presumably many more people will apply. And
processing all of those extra applications for cancellation of
removal will impose costs on the immigration system and
create backlogs and delays for other noncitizens trying to
get their day in court. More than 1.2 million cases are cur-
rently inching their way through the immigration courts.
Dept. of Justice, Executive Office for Immigration Review
Adjudication Statistics, Pending Cases, New Cases, and To-
tal Completions (Jan. 7, 2021). If even a small portion of
the noncitizens with pending removal cases become eligible
for cancellation of removal solely because of today’s deci-
sion, and then apply for cancellation of removal, the immi-
gration courts will need to expend substantial resources to
timely consider those applications for relief, even though
many of them are likely to be denied.
In sum, the Court’s statutory conclusion in this case will
not necessarily help noncitizens. The Court’s statutory in-
terpretation is not likely to create meaningful benefits for
many noncitizens going forward, and it is not likely to cre-
ate benefits for many noncitizens looking backwards. And
it will impose serious administrative burdens on an immi-
gration system that is already overburdened, thereby
harming other noncitizens.
22 NIZ-CHAVEZ v. GARLAND
KAVANAUGH, J., dissenting
* * *
As a matter of policy, one may reasonably debate the cir-
cumstances under which a noncitizen who is unlawfully in
the country should be removed and should be eligible for
cancellation of removal. But those policy choices are for the
political branches. Our job is to follow the law passed by
Congress and signed by the President.
The statute here requires the Government to serve the
noncitizen with written notice of the charges and other re-
quired information, including the time and place of the
hearing. In this case, Niz-Chavez received written notice of
the charges and all the required information, including the
time and place of his hearing. Niz-Chavez appeared with
counsel at his hearing in Detroit on June 25, 2013. Because
he received written notice to appear before he had accumu-
lated 10 years of continuous physical presence, he is not el-
igible for cancellation of removal. I respectfully dissent.