Case: Campos-Chaves v. Garland

The plaintiff in this case is a native and citizen of El Salvador who arrived in the United States without inspection in January 2005. On January 27, 2005, the government served him with a document labeled "notice to appear." But that document did not provide the time and place at which the proceedings would be held, as the statute requires. Instead, it stated that the hearing would occur "on a date to be set at a time to be set." Five months later, the government sent Mr. Campos-Chaves a standalone hearing notice that, for the first time, identified the date and time of his hearing. Mr. Campos-Chaves did not appear at that hearing, and he was ordered removed in absentia. 

In September 2018, the plaintiff petitioned the immigration court to rescind his removal order and reopen his removal proceedings, arguing that he did not receive proper notice in accordance with applicable federal law and thus was entitled to rescission of his removal order. He also argued that his removal order should be canceled because his U.S.-citizen children would face extreme hardship if they were forced to accompany him to El Salvador. The immigration judge denied his motion and the Board of Immigration Appeals (BIA) affirmed, holding that the statutory notice requirements were satisfied even if a notice to appear lacks time-and-place information so long as it is followed by a subsequent hearing notice containing that information.

On March 31, 2020, the plaintiff then petitioned the U.S. Court of Appeals for the Fifth Circuit for review. In September 2021, while the petition was pending before the court, the Fifth Circuit decided another, related immigration case Rodriguez v. Garland. In that case, the court held that a single notice containing all relevant information was required in the context of in absentia removal. 15 F.4th 351, 355. Thereafter, the U.S. Attorney General filed an unopposed motion on May 18, 2022, seeking to remand this case back to the BIA for reconsideration. 

On August 3, 2022, a three-judge panel comprised of Judges Leslie H. Southwick, Andrew S. Oldham, and Cory T. Wilson denied both the plaintiff’s original petition for review as well as the government’s unopposed motion to remand. 43 F.4th 447. In their opinion, the judges distinguished this case from Rodriguez on the facts by noting, unlike in Rodriguez where the plaintiff received an undated notice to appear but did not receive a subsequent, dated notice, the plaintiff in this case received both the initial, undated notice as well as the subsequent, dated notice.

The plaintiff then filed a petition for a rehearing en banc on September 19, 2022. The three-judge panel denied the motion on December 1, 2022, noting that “no member of the panel or judge in regular active service requested that the court be polled on rehearing en banc.” 54 F.4th 314.

Following defeat in the Fifth Circuit, the plaintiff petitioned the U.S. Supreme Court for a writ of certiorari in January 2023. The Supreme Court granted certiorari on June 30, 2023. 143 S.Ct. 268. The Court consolidated this case with two similar Ninth Circuit cases–Garland v. Singh and Garland v. Mendez-Colín. Oral argument occurred on January 8, 2024.

The Supreme Court issued an opinion affirming the Fifth Circuit on June 14, 2024. 602 U.S. 447. The decision was 5-4, with Justice Samuel Alito writing for the majority. The court held that (1) the government's provision of either notice to appear or notice of the new time or place of removal proceedings defeats rescission of an in absentia removal order and (2) to be eligible for rescission, a noncitizen must demonstrate he did not receive notice for the hearing they missed and at which they were ordered removed.

Justice Ketanji Brown Jackson, writing for herself and Justices Sotomayor, Kagan, and Gorsuch, dissented, arguing that the majority opinion “defies the plain text and context of the statute, sidesteps our precedents [in Niz-Chavez v. Garland and Pereira v. Sessions], and upends the careful in absentia removal framework Congress has crafted.”