John G. Roberts, Jr.: We'll hear argument next in Case 17-459, Pereira versus Sessions. Mr. Zimmer.
David J. Zimmer: Thank you, Mr. Chief Justice, and may it please the Court: The stop-time rule at issue in this case specifies exactly what the government must do in order to end an immigrant's period of continuous presence. The government must serve a notice to appear under Section 1229(a), and as the name notice to appear suggests, the government cannot serve a notice to appear without telling an immigrant when and where to appear. Specifically, Section 1229(a) defines a notice to appear as notice that provides specific information, including the time and place at which proceedings will be held. Notice that lacks that required information and does not tell an immigrant when and where to appear is not a notice to appear under Section 1229(a) and does not trigger the stop-time rule.
Elena Kagan: Mr. Zimmer, you just said defines the notice of appear. Why do you think that those 10 requirements of what have to be in a notice to appear define a notice to appear? You could imagine a case where somebody says, well, look, Requirement 7 isn't in the notice. That was a mistake. So it's a flawed notice to appear, but it's still a notice to appear. It doesn't become not a notice to appear because there's a flaw in it.
David J. Zimmer: Well, right. So the answer to that, Justice Kagan, is -- is the way that the statute is written. And because Section 1229(a) doesn't just -- doesn't just state what a notice to appear shall contain, it does define what a notice to appear is because of the language Congress used. And it's specifically the phrase in this section referred to as a notice to appear. And that is definitional language. It is definitional -- sorry, definitional language that Congress uses routinely throughout the U.S. Code to give substantive meaning to specific terms. And we give a number of examples of this on page 4 of the reply brief, including one particularly clear example where Congress actually referred to this language as definitional. And so, unlike a provision that just states what -- if -- if -- unlike a provision that just stated what a notice to appear shall contain, this provision states that the document in this section referred to as a notice to appear is written notice that specifies the required information.
Ruth Bader Ginsburg: And if any one on the list, any one is left out, then it's not a notice to appear?
David J. Zimmer: Well, yes, that's right, Justice Ginsburg. But I think it's important to recognize that most of the information on that list will not vary from case to case. It's -- it's standard information that's simply on the notice to appear form. And so what we're really talking about in this case are really only two types of information. It's the charges, the factual and legal charges against the immigrant, and the time and place of the hearing. And so those are really the two pieces of information that are really required that -- that there's any chance would ever be omitted, and it's entirely reasonable that Congress insisted that those two pieces of information be included in a notice in order to stop the time, because those are the two pieces of information that show that the government is serious, is -- is -- is committed to going forward with an actual removal proceeding. And, indeed, the -- the fact that those two pieces of information are required is supported by the only reason that's identified in the legislative history for which Congress actually enacted this rule. Prior to 1996, there was no stop-time rule and immigrants continued to accrue permanent residence -- or, permanent presence all the way up until the point that they were actually removed from the country.
Samuel A. Alito, Jr.: Do you think that your interpretation is so clear that it wouldn't be necessary for us to get beyond step one of Chevron?
David J. Zimmer: Yes, I --
Samuel A. Alito, Jr.: Why is that so?
David J. Zimmer: So it's -- it's so because of the definitional language in Section 1229(a).
Samuel A. Alito, Jr.: But I -- I don't see definitional language in there. Where -- where's the definitional language?
David J. Zimmer: It's -- Justice Alito, it's the "in this section referred to as" language. And that is language that, again, is used throughout the U.S. Code in order to define terms. When -- when Congress states that the document "in this section referred to as" a notice to appear is written notice that specifies that information, that means that if the government serves written notice that does not specify that information, it has not served a notice to appear. And, again, this is not a unique provision. That language appears throughout the U.S. Code and is used to -- to do exactly what it does in Section 1229(a), to define terms to have a specific substantive meaning. And, again --
Sonia Sotomayor: What do you do with the government's position that using the word "under" in the notice to appear definitional section is different than what was done in other provisions -- parts of this that said "in accordance with" or "required under"?
David J. Zimmer: Right.
Sonia Sotomayor: So there is a difference of usage. So why should we give it this -- "under" the same meaning?
David J. Zimmer: Sure. So two responses --
Sonia Sotomayor: Doesn't that in -- in and of itself create an ambiguity?
David J. Zimmer: So -- so two responses to that, Justice Sotomayor. The first is that the government's argument -- even the government admits that Congress was not consistent in how it identified all the information required by Section 12 -- by the notice to appear definition because, as your question suggested, Congress at one time uses "notice in accordance with" and one time "required under." So there's no -- there's no real dispute that -- that Congress was not consistent in this way. But the other important difference is that in those provisions -- those provisions also referred to the notice required under Section 1229(a)(2), and there's no defined term in 1229(a)(2). And that's really the key difference, because the stop-time rule is only referring to the notice to appear. And notice to appear is a defined term. It's a term that's defined to mean the notice of the specific information listed in Section 1229(a)(1), and because it's a defined term, there is no additional language needed to convey -- to convey the --
Sonia Sotomayor: If I -- if we were to disagree with you that there -- and -- and say there's ambiguity, where does that leave your argument? Do you lose?
David J. Zimmer: Well, no, Your Honor. I mean --
Sonia Sotomayor: Because of Chevron and deference to the government?
David J. Zimmer: Right. Well, no. I mean, as we explained in the brief, we also believe that the -- you know, we also argue and -- and believe that BIA's interpretation is unreasonable under Chevron's second step. But -- but certainly as to the first step, the fact that Section 1229(a) does use the defined phrase -- the defined term notice to appear and that the stop-time rule specifically is triggered only on service of a notice to appear under Section 1229(a), invoking that document, that that does unambiguously require that the government actually serve the document that is identified in Section 1229(a).
Ruth Bader Ginsburg: How -- how does the -- the logistical problem -- at least if I understand it correctly. So there's this notice to appear, but at the time, the department doesn't know when the immigration court is going to be able to slot this case in. So it doesn't have the -- it wants to stop the clock on accumulating years in the United States, so it sends this notice and then -- and time to be determined. How -- how -- how is the department supposed to determine the time?
David J. Zimmer: Well, so, as the government admits, and this is on page 50, Note 15 of its brief, the government actually had a system, it was using a system that did allow it to identify the time and include it on the notice to appear. And, in fact, this is explained in even more detail in the amicus brief submitted by former BIA chairman and Immigration Judge Schmidt, who -- who explains that this system allowed coordination between the Department of Homeland Security and the immigration courts, such that individual DHS officers could identify a time that could be included on the notice to appear. And Judge Schmidt explains, again, in great detail, why that system not only worked but made the immigration courts function more effectively. And the government, again, admits on page 50 of its brief that it had this system and simply states that it stopped using it. There's no explanation as to why. So this is not an insurmountable problem. And it's not something -- and, in fact, it's not even a problem at all because the government had a system that actually did this. And it's no surprise that the government had a system that did this given that police officers from -- in municipal governments all across the country are able to include hearing dates on -- on traffic tickets. When they pull someone over, they can use, you know, any kind -- the system -- any kind of electronic system to identify the next available hearing date and include it on the ticket. So this is not a problem. It's not a problem at all. This is just the way that DHS has chosen to implement its system. And that choice that --
Ruth Bader Ginsburg: You say we don't know why they abandoned that system?
David J. Zimmer: Well, no, the government has never explained. They do not explain in their brief. It's, as far as we know, they've never explained. And, again, Judge Schmidt's amicus brief -- and, again, this is from the perspective of an immigration judge who is actually using and benefiting from the system -- he had no idea. And he -- as he explains in his brief, the system actually worked. It made the immigration courts work more effectively because there are serious logistical problems that are caused by not including this information in the notice to appear.
Samuel A. Alito, Jr.: Well, would it be better to include a date, even if in the great majority of cases the date is going to be changed, which can be done?
David J. Zimmer: So, yes, the date certainly can be changed, and yes -- and yes, it is better to include a date in the initial notice anyway. And let me give three reasons why that's true. The first is that requiring the government to include a date ensures that when the time is stopped, when the immigrant is prevented from accruing additional time, the government is actually serious about proceeding with -- with a -- with a removal proceeding, of going forward with the proceeding. And if you look at a case like Camarillo, you can see why that's important, where the government served one of these notices that did not include the time and place, and then just sat on it for over two years without doing anything at all. And it's totally reasonable that in that context Congress thought that that time should continue to accrue on behalf of the immigrant.
Samuel A. Alito, Jr.: Well, I don't see how your rule would change that. So they include a date and then, after a period of time, when they are not ready to -- to proceed on that date, the date is changed. And they just keep changing the date.
David J. Zimmer: Well, Your Honor --
Samuel A. Alito, Jr.: What is achieved?
David J. Zimmer: So I think the system does assume a certain degree of good faith on the government's part to not put a date that it knows -- knows to be false. So that -- I think Congress certainly did not anticipate that the government would simply lie.
Samuel A. Alito, Jr.: I thought your --
David J. Zimmer: But --
Samuel A. Alito, Jr.: -- I thought the example you just gave us was an example of bad faith.
David J. Zimmer: Oh, I don't -- no. I think that what happened in Camarillo was not bad faith. They just served the notice at the time they were not ready to go forward at -- with the proceeding. And, you know, there's nothing inherently wrong with doing that, with serving notice of charges and saying we're going to go forward with a proceeding at some undefinite time in the -- indefinite time in the future. But the point is that the statute Congress wrote makes clear that the -- that the result of that decision is that the time does not stop until the government is actually ready to go forward with a hearing. And that makes sense, especially looking at the legislative history of why Congress actually enacted this rule. And the reason that was, was that Congress wanted to make sure that immigrants were not able to -- to avoid or delay proceedings in order to manufacture additional time. So, prior to 1996, there was -- Congress thought that there was a problem because, because time continued to accrue until the person was actually removed from the country, that created an -- an incentives -- incentive for immigrants to file motions and to avoid proceedings, to draw out proceedings and gain additional time. So what the stop-time rule does is it says at the time there's an actual hearing, when the government is prepared to go forward with the hearing and schedules a hearing that could be avoided or delayed, then time stops. But until that time, until an actual hearing has been scheduled that could be avoided or delayed, then the delay is rightfully with the government. And governmental delays have always historically counted towards an immigrant's accrual of additional residence.
Samuel A. Alito, Jr.: Well, what if they send a notice that specifies a date and then let's say two weeks later they send another notice that says that the -- the proceeding on that date is canceled and a new date will be set at some time in the future? What would happen then?
David J. Zimmer: I mean, I think in that context -- I mean, that's an interesting question, Your Honor. I think in that context the -- the initial notice -- I mean, certainly, as of the time that the initial notice was sent, it would trigger the stop-time rule because there was a date on the notice and that satisfies the statute. I mean, if the government then sort of rescinded the date and didn't provide another date -- I mean, I'm not actually sure that the statute allows the government to do that because the Section 1229(a)(2) allows for a change in the hearing. But I'm not sure it allows for a change in the hearing to no date at all. And so I'm not sure the government would actually have --
Sonia Sotomayor: I think the provision requires in writing a change of date, doesn't it?
David J. Zimmer: It does. And -- and I don't think anything in that provision would allow the government to change the date to no date. I think that once the government provides a date, the statute only authorizes it to change that to a -- to a different date.
John G. Roberts, Jr.: Well, but it's -- it's -- it's an important practical question because there are a lot of hearings and there are limited numbers of people available to conduct the hearing. I mean, what if it just says, okay, our normal process, we try to get you in, you know, the third day of the second month or something, we always try, and then it turns out they're not going to be able to, so they say, okay, we'll try again. I mean, it's like when you get a traffic ticket and want to challenge it. They say here is the time you go up, and the officer is never there, and they say, well, then come -- come back later, and the officer is not there, and eventually it shows up, but, I mean --
David J. Zimmer: Right.
John G. Roberts, Jr.: -- it -- it -- it -- I don't see what's different from that. And it seems to take great -- or practical considerations do have some role to play.
David J. Zimmer: Well, yes. And that's why in the situation you're describing, Mr. Chief Justice, the first notice would -- the notice with the first date would trigger the stop-time rule, because the government has shown that it's ready to go forward with proceedings. And there's no question --
John G. Roberts, Jr.: I thought you were suggesting that they couldn't keep -- they couldn't put it off until the next time, or --
David J. Zimmer: No, they can change -- they can definitely change the date to another date. What they can't do is say that date -- we're -- we're rescinding that date and we're not giving you an additional date.
Sonia Sotomayor: Can I go back and -- and ask how this works? And I was a little confused by what happened here. They don't give you a date. Then they give you -- they mail something to you, giving you a date, or -- or --
David J. Zimmer: In general.
Sonia Sotomayor: What happened here? They didn't give him a date.
David J. Zimmer: That's correct.
Sonia Sotomayor: They then sent a change of date to -- to the -- to the wrong address, essentially.
David J. Zimmer: Correct.
Sonia Sotomayor: And so he didn't get notice of the change of -- of address, and he was then deported, correct?
David J. Zimmer: Well, he was -- a -- a final order of removal was entered. He was not deported, but yes.
Sonia Sotomayor: Yeah, a final --
David J. Zimmer: Yeah.
Sonia Sotomayor: -- order of removal. I guess my question is, if you don't show up because you're not told when to show up, do you still have an obligation to tell them where to mail the notice to?
David J. Zimmer: Yes, but -- yes, you -- you absolutely do, but what happened here is -- is Mr. Pereira did tell them where to mail the notice to and they didn't send it to that address. And I don't think --
Sonia Sotomayor: So why are we here at all, because -- since they didn't -- I -- I -- I -- I'm just asking as a practical question. Wouldn't the -- the final order have to be vacated because he was never given proper notice of the change of address?
David J. Zimmer: So that notice was vacated, Your Honor.
Sonia Sotomayor: I see.
David J. Zimmer: And then later another --
Sonia Sotomayor: Okay. It's just the stop time that's --
David J. Zimmer: Exactly. So the issue is when -- when the government actually began removal proceedings in 2013, well after Mr. Pereira had accrued the -- the 10 years of continuous --
Sonia Sotomayor: Got it.
David J. Zimmer: -- presence, then he tried to apply for --
Sonia Sotomayor: I had forgotten that.
David J. Zimmer: Okay. Yeah. So -- but to get back to the -- to the -- to the question, to the logistical questions, the point -- to get back to Mr. Chief Justice's question, when the government is actively trying to go forward with proceedings, and as, you know, then the fact that there may be some delay in actually scheduling those proceedings doesn't count against -- doesn't count against the government and doesn't change the stop-time trigger, because the government is actually going forward with proceedings. But the issue is when the government sends a notice that doesn't have a hearing at all and says we will provide a hearing in the future, that allows the government to -- it -- it basically stops the process. The government isn't going -- actually going forward with removal proceedings. In Camarillo --
John G. Roberts, Jr.: No, I under -- I understand. It's just a question of the practical significance. It seems the government can do one thing, which is saying, okay, we know we have to -- we're -- you know, we're interested in taking this action against you. We don't quite know when we're going to have the, you know, available hearing officers and all that, and we'll let you know. Or you simply say, all right, okay, we're going to do it this day, and it turns out, well, an officer is not available that day. We'll try in two more months. Not -- not a big -- you know, is there any practical difference?
David J. Zimmer: Well, yes, there's a big practical difference because, in a case like Camarillo, they're not trying to do that. And I think that's the point. When the government serves these -- when the government serves an initial notice, it doesn't actually necessarily represent the government's intention to go forward with a proceeding at that time. And that's why I was pointing out that, in Camarillo, after the government served this, it's not that it couldn't find a hearing to be scheduled for two years. The government didn't file the notice with the immigration court for two years. It just sat somewhere with the government doing nothing about it. And there's no reason to think that -- in fact, there's every reason to think that Congress believed that in that situation that time would not count for the government, that that would continue -- that residence would continue to accrue because the government hadn't taken the trouble to even try to schedule a hearing. But, of course, as soon as Congress tries to schedule a hearing, and schedules a hearing and provides notice of it, time stops, even if the next available hearing isn't for a year or two.
Neil Gorsuch: I --
Samuel A. Alito, Jr.: I mean, that sounds like some sort of --
Neil Gorsuch: No, go ahead.
Samuel A. Alito, Jr.: -- some sort of bad faith exception. But I still don't understand what would be achieved. So presume -- let's assume that there's a reason, and we will ask Mr. Liu this, why they -- why they've adopted this new policy, but -- why they've adopted this policy, but if, in fact, they have difficulty ascertaining the date, and we were to adopt your rule, then what -- they could say, well, all right, on average, these would be held a certain number of days after the notice goes out, so we'll put that date down, but, you know, two weeks before then or a week before then or whatever, if we see that we're not going to be able to do it on that date, then we're going to, you know, extend it for 30 days, and they keep doing this. What is the difference between that and the situation here? I just don't understand it.
David J. Zimmer: Well, if I understand your question correctly, Justice Alito, again, I think that the -- that the difference is that -- I mean, in that situation, the government could, of course, solve the problem by just simply providing the date. Maybe I'm not understanding your -- your question, but that if it -- as soon as the government --
Neil Gorsuch: I think -- I think the concern that, if I'm correct, that -- that my colleagues are expressing is are -- would -- we may be creating a perverse incentive here for the government to issue earlier notices to appear on dates that it actually has no intention of proceeding in order to stop the clock on clients like yours, rather than being more forthright and saying we don't know when we're going to be able to do it, but here's a notice to stop the clock. We're going to wind up in the same place perhaps, and it's just a paper exercise.
David J. Zimmer: Well, Your Honor --
Neil Gorsuch: That's the concern, I think.
David J. Zimmer: Right. So -- but I -- so I don't think that that's actually a concern. And, in fact, I think the concern goes the other way because, again, the government -- there's no reason to think that the government is going to lie on one of these --
Neil Gorsuch: Oh, no, no, no, no, no.
David J. Zimmer: But -- but your --
Neil Gorsuch: We wouldn't go that far, counsel. (Laughter.)
Neil Gorsuch: It -- it just is a matter of administrative convenience that we're going to list it for the first Tuesday on the second month, and maybe we'll get there and maybe we won't. And then we'll just send out a new notice, and a new notice, and a new notice, and a new notice, until we get to the date. So what's the difference between that regime and the regime we currently have? And why -- why is one better for your client than the other? Sometimes when courts require additional procedures to aid a criminal defendant or an immigrant, they wind up perversely creating the opposite, unintended effect. Why isn't your case one of those?
David J. Zimmer: Well, it certainly wouldn't create an adverse effect. And, in fact, I think because there's real prejudice to immigrants from these -- these notices that don't include the date and time because it creates this -- this level of uncertainty, that they don't know, is the government actually going to go forward, are they going to file in immigration court, are they ever going to seek a hearing? Will it be tomorrow? Will it be in two years? Whereas, if there's a date, if there are actual proceedings ongoing, then at least you encourage the government to -- you know, to -- to go forward with the -- with the -- with the proceeding; whereas, if they don't even have to provide a date, then you get cases like Camarillo and like this case. Even in this case, the government did not file the notice in immigration court for over a year after it was initially served. Even putting aside all of the problems they later -- later had serving the hearing notice, the government didn't try to get a hearing for over a year.
John G. Roberts, Jr.: So the --
Neil Gorsuch: Were there any remedy for your -- for -- for your client in a circumstance like the one I've described that you can think of?
David J. Zimmer: Where they keep -- keep scheduling the hearing? Well, what the -- what the client could do is if -- if he or she wanted the hearings to proceed, she could go into immigration court and attempt to -- to actually have a hearing held instead of having that uncertainty. Or no -- I mean, no, once the government is actively moving forward with proceedings, then the stop-time rule has been triggered, but, of course, that's the whole point.
Sonia Sotomayor: Could your client go to immigration court before it's filed in immigration court?
David J. Zimmer: No.
Sonia Sotomayor: Meaning -- so the start of your client's ability to force the government to give it a hearing doesn't start until it's filed in the immigration court?
David J. Zimmer: That's correct, Your Honor. There's -- there's -- until -- in fact, often these notices do not even say which immigration court it will be filed at.
Sonia Sotomayor: And, in fact, the -- the B -- I call it the BIA; I don't know what it's called today --
David J. Zimmer: It is called the BIA.
Sonia Sotomayor: -- in Ordaz, said that the notice to appear is not valid until it's actually filed with the immigration court.
David J. Zimmer: That's correct.
Sonia Sotomayor: And so, if an order to show cause is served today but not filed, it's not valid; it doesn't stop the clock, correct, under the BIA's own reading?
David J. Zimmer: If -- if it's never filed --
Sonia Sotomayor: And a second notice to appear?
David J. Zimmer: That's correct.
Sonia Sotomayor: All right. So, in answer, I'm assuming, to Justice Gorsuch's question is your client can make no choices until the immigration court is notified?
David J. Zimmer: That's correct. Yeah. That's correct. That -- and that's one of the reasons that that's a key moment, the -- when the -- when a hearing is actually scheduled, that that's a key trigger. And, again, this goes back to the -- to the history as to why this rule was created in the first place, which was in order to prevent immigrants from extending their proceedings in order to avoid -- sorry, to extend their qualifying residence by avoiding or delaying proceedings. And until a hearing is actually scheduled, until the government actually mails notice of a proceeding, that concern simply doesn't come into effect because there's nothing an immigrant can do to avoid or delay a proceeding that has not been scheduled. And I also think it's important to recognize that the government's approach, the government's interpretation, would allow the government actually to -- to end -- end time, to trigger the stop-time rule long before it really has any intent at all of going forward, because it could serve notices to appear on the merest suspicion that someone might be removable without even identifying charges and without even identifying a hearing date. And there's no reason to think that that's what Congress intended, that Congress -- that Congress would have intended the Department of Homeland Security, on the slightest suspicion that someone was removable, to stop their time by handing out a form that didn't even identify why the -- why the person was removable.
Elena Kagan: Mr. Zimmer, can I take you back to the language of the statute and just ask about your assertion that this is clearly definitional in nature? I mean, one question is, is that necessary to your argument? And then the other question is, you know, here's an alternative view of this language, which is this language is a -- it's -- it's -- it's a notice of shorthand, it's -- you know, we need to call this thing something, this -- this thing which tells you to appear in -- at removal proceedings, and this is what we're going to call it. But it doesn't suggest that everything that we say about this document is -- defines what a notice to appeal is. So, you know, respond to that, and then tell me whether it's crucial that I agree with your response to that.
David J. Zimmer: So I guess I don't -- I think maybe the word "definitional" -- I mean, what the -- this document is called a notice to appear, which in and of itself implies some indication that it -- that it will tell someone when, where, and why to appear.
Elena Kagan: Yes. I mean, it's obvious that the document is called a notice to appear. But the question is whether, if the document is flawed in some way, that it becomes not a notice to appear, as opposed to just a notice to appear which is flawed in some way.
David J. Zimmer: Well, so I -- I think the way the language -- the statute is written -- I mean, it's certainly -- our argument is not that there cannot be a flaw. So, certainly, there can be mistakes that can be corrected. But the way the statute is written -- and I -- I'm not sure that there's really much of a definition in terms of our argument -- much of a difference in terms of our argument between a definition and shorthand. But I think what the phrase "notice to appear" means under Section 1229(a) is a document that provides that notice. It doesn't have to provide -- it can have mistakes in it. It's not that it has to be -- it can't be corrected later, but it has to give the information in that -- it has to give the information listed in Section 1229(a) in order to be a notice to appear that would trigger the stop-time rule as a notice to appear under Section 1229(a). And if the statute could allow the government --
Elena Kagan: I mean, nobody had any doubt that what was filed here or what was sent here was a notice to appear, isn't that right?
David J. Zimmer: Well, it had the words "notice to appear" written on top of the page. It's a little bit odd, again, to say that it was a notice to appear when it didn't tell Mr. Pereira to appear at any particular time. I mean, so I think the name -- it's hard to see that it could be a notice to appear when it didn't actually tell Mr. Pereira when to appear and when to do anything.
Samuel A. Alito, Jr.: Suppose the -- the parenthetical "(in this section referred to as a "notice to appear")" were deleted. Would that make a difference?
David J. Zimmer: Yes, absolutely. It would be a very different statute. And, I mean, we may be making the same argument outside of Chevron, but I think for purposes of why the statute is unambiguous, I think that parenthetical language is incredibly important. And, again, the "in this section referred to as" language is definitional language that is used throughout the U.S. Code, and it's language that Congress has actually recognized as definitional. And, again, that's on page 4 of our reply brief.
Samuel A. Alito, Jr.: I mean, the rules of this Court and -- and the rules of appellate procedure say a brief shall contain certain things. Do you think that's definitional?
David J. Zimmer: Well, no. That's definitely -- that's absolutely not definitional. And -- and that's very different. To say that a document shall contain A, B, and C is very different than saying the document in this section referred to as a notice to appear shall contain -- or, sorry, the --
Samuel A. Alito, Jr.: Well, there's no provision defining what a brief means because everybody knows what a brief is, but suppose that there were a section that says that a document filed by the parties setting out the parties' argument is -- shall be referred to as a brief, so then anything -- any document that's filed that omits anything that's required by rule to be included would not be -- would not be a brief any longer?
David J. Zimmer: I mean, if the rules were written that way, yes. But I -- but, of course, the rules aren't written that way, and they're not written that way for a reason. And I think that's why -- exactly why it's important to recognize that this language, which is not the way these rules are normally written, that this language actually has real meaning, that Congress chose this language for a reason, and this is definitional language Congress routinely uses. If there are no further questions at this time, I'd like to reserve the rest of my time.
John G. Roberts, Jr.: Thank you, counsel.
David J. Zimmer: Thank you.
John G. Roberts, Jr.: Mr. Liu.
Frederick Liu: Mr. Chief Justice, and may it please the Court: The question in this case is whether the stop-time rule may be triggered by a notice to appear that doesn't contain a hearing date. The answer is yes. The statutory text reflects the judgment that an alien shouldn't be able to continue claiming credit for being in the United States once the government tells -- has told the alien that it intends to remove him. With or without a hearing date, a notice to appear does just that. It tells the alien that the government intends to remove him. And so the BIA reasonably concluded --
Sonia Sotomayor: We don't know that until it's filed with the immigration court.
Frederick Liu: I think that --
Sonia Sotomayor: Because you already -- your agency has already said that in Ordaz.
Frederick Liu: I don't think --
Sonia Sotomayor: That a notice to appear is invalid unless it's filed with the immigration courts.
Frederick Liu: Well, I think that point actually cuts against my friend, because if it turns out at the end of the day that the government isn't serious about pursuing those charges, then it won't file the notice to appear, and under Ordaz, that notice to appear won't be given any stop-time effect.
Neil Gorsuch: How is it that under Ordaz a notice to appear isn't a notice to appear if it -- if it's not filed, as Justice Sotomayor pointed out? An extra-statutory requirement that I -- I can't -- I don't see this -- in the language of this statute. Maybe you can tell me where I can find it.
Frederick Liu: Well, the --
Neil Gorsuch: But -- but yet a document that contains some of the elements that are required by this statute should qualify? That seems to me to have it sort of backwards. Help me out.
Frederick Liu: Well, the question in Ordaz, Justice Gorsuch, was about what happens when there are basically two notices to appear, where there are changes to an existing notice to appear. That question is distinct from the one before the Court today.
Neil Gorsuch: I understand that. But -- but the BIA, in its wisdom, has said that a notice to appear isn't a notice to appear if it lacks something that the statute doesn't require, but it is a notice to appear if it lacks something the statute does require.
Frederick Liu: Right.
Neil Gorsuch: And I am thoroughly confused by that.
Frederick Liu: Well --
Neil Gorsuch: Maybe you can help me out.
Frederick Liu: Well, let -- let me take the second part first, which is why it is the case that a notice to appear that lacks a date and time is still a notice to appear. And I -- I think the framework this Court should approach that case with is the framework it applied in Edelman versus Lynchburg College. If you look at the statute there, it's set up exactly the same way. Title VII says a charge under this section shall be filed within a certain time period with the In the same section, it said a charge shall be in writing and under oath. And the Court said in Edelman that doesn't provide a definition.
Neil Gorsuch: So -- so what is the definition of a notice to appear? It doesn't have to have a date. It doesn't have to have a time. Does it have to have the charges? Does it have to have the facts? I mean, when does the emperor have no clothes? At what point?
Frederick Liu: A notice to --
Neil Gorsuch: A blank page with -- with the title notice to appear, would that suffice?
Frederick Liu: A blank page -- a blank page would not be a notice to appear. And that's because a notice to appear is a charging document. It's like an indictment in a criminal case, a complaint in a civil case. What it needs to do is tell the alien what proceedings he must appear for and why he must appear for them.
Sonia Sotomayor: Mr. Liu, help me. I -- I -- I'm simple-minded. Notice to appear seems to ask me when, where, and why. Those are the three material elements of, to my simplistic way of thinking, of the words notice to appear. When am I appearing, and for what? That -- that -- those seem the two most critical components of that word -- of those words.
Frederick Liu: Well, I don't -- I don't think Congress had that view. A notice to appear is shorthand for a notice to appear for removal proceedings. So what makes it a notice to appear is that it tells the alien he must appear for those removal proceedings --
Sonia Sotomayor: But not when?
Frederick Liu: -- and why. But not when. And -- and we have very good evidence that Congress thought the when and the where wasn't part of the essential function.
Neil Gorsuch: Well, okay. But if that's true, then surely we don't need to worry about the charges or the law or the facts either. It just could say we're going to -- we're going to come after you at some point, some indefinite point about something having to do with immigration. That would be a notice to appear under your definition, wouldn't it?
Frederick Liu: Well, in our -- in our view, the -- the charges are crucial to the function of a charging document. And, Justice Gorsuch, you may disagree with me on where to draw the line between --
Neil Gorsuch: Well, I'm just wondering where the government would have us draw the line --
Frederick Liu: Well, we would draw the line --
Neil Gorsuch: -- and why.
Frederick Liu: -- we would draw the line, as -- as I say, that -- that the -- the notice to appear is a notice to appear so long as it tells the alien that he must appear for removal proceedings.
Neil Gorsuch: Okay. So that's the nature of the proceeding. So we've got (A).
Frederick Liu: Sure.
Neil Gorsuch: We've got to have that. How about the legal authority --
Frederick Liu: Yes.
Neil Gorsuch: -- got to have that?
Frederick Liu: Yes, and (C) and (D).
Neil Gorsuch: Okay. And how about (C) and (D)?
Frederick Liu: (C) and (D).
Neil Gorsuch: So it's only the date and time that's -- we don't have to have. Everything else is good.
Frederick Liu: No, no, no, (E) through (G).
Neil Gorsuch: (E) through (G), no, none of those?
Frederick Liu: No, because those have to do with the mechanics of subsequent proceedings. The reason why (A) through (D) are essential is because (A) through (D) are about --
Neil Gorsuch: So you don't -- don't need to tell them they need counsel, for example. That's -- that's not required?
Frederick Liu: No.
Neil Gorsuch: Okay.
Frederick Liu: Because that -- that's an advisal about the mechanics of future proceedings. What's special about (A) and (D) isn't that they're labeled (A) and (D) in the statute, but because they happen to be the essential function of a charging document, which is -- this is to tell you the nature of the proceedings, the charges against you --
Neil Gorsuch: Doesn't Congress get to decide what's the essential function of a charging document? I would have thought that, you know, I don't see a distinction between (A) and (D) versus (E) through (G) in -- in this -- in this statute. I mean, Congress could have done that. These are the really important ones --
Frederick Liu: Well, I --
Neil Gorsuch: -- (A) through (D) --
Frederick Liu: -- I think, actually --
Neil Gorsuch: -- (E) through (G), forget about those.
Frederick Liu: I think Congress actually told us in 1996 and then again in NACARA in 1997, and these provisions are at the statutory appendix at 69a. In 1996, when Congress enacted this very statute, it said that the stop-time rule should apply to notices to appear issued before the effective date. The question arose, there were no notices to appear because there were only orders to show cause. So what could Congress have been talking about? It went through the trouble the following year to clarify that those notices to appear that they were talking about were the old orders to show cause. And the old orders to show cause didn't have to require a date and time. So that's proof right there in the statutory history that Congress thought about what's necessary to -- to be a notice to appear and what's not, and it drew the line right where the government is drawing it.
Elena Kagan: But, Mr. Liu, this might be the same question and, if so, I -- I apologize for beating you over the head with it, but a -- a notice to appear, it's a special kind of charging document. It's telling you that the government wants you to appear. And then, if the government wants you to appear, the first thing you need to know is, where am I supposed to appear? When am I supposed to appear? So that there will be somebody who will do what they want to do with me when I appear. So it's -- I mean, it would -- it would seem actually even more than the charges itself that a notice to appear, you know, the sine qua non is telling you where you should appear.
Frederick Liu: Well, I think that's not the -- the essential function of a charging document. It's not the essential --
Elena Kagan: Well, you talk about it as a charging document. And I hate to interrupt you, but I'll just -- it's not any old charging document. It's a notice to appear, which means somebody has to know where they're supposed to appear and when.
Frederick Liu: And the government doesn't dispute that the notice to -- to appear -- that that type of notice needs to be provided to the alien if the government is ever going to effectuate a removal in these removal proceedings.
Stephen G. Breyer: So why -- just in case -- I mean, it's possible we will agree with you. I mean, it does say that the clock starts -- stops ticking when the alien is served a notice to appear under Section 12. Then you look at the section, and it says a notice to appear shall specify nine things, including the time and place at which you're supposed to appear. And in the government's view -- I looked at the notice to appear here -- every one of those things is included on the document, except not notice to appear -- I mean, where you're supposed to appear. And that seems odd, but assume you're right. We then get to step 2 of Chevron, and step 2 says that the agency decision has to be reasonable. So I looked for the reason. What's the reason that they don't want to put in a notice to appear? And I notice the former chairman of the BIA said there used to be a process called -- it was called interactive scheduling.
Frederick Liu: Right.
Stephen G. Breyer: It meant that a human being who was over at DHS would go to his computer, find out what dates were available, and fill them in the notice to appear. Now that wouldn't seem too tough. We do have computers today. It would seem to be possible. And yet what he says, the former chairman, is it eventually fell out of use, that system. And "he does not know exactly why." Okay. So I think to have a reasonable agency decision you would have to say not just that there are other things that don't appear, that you say have to appear, but you'd have to have a reason why this, which says does appear, doesn't appear. So what is the reason?
Frederick Liu: The reason is that -- is because of the -- the structure of the statute and the regulations.
Stephen G. Breyer: No, no, not because of the structure. The -- the -- I mean, why did the DHS or the BIA or the EOIR or the DOJ --
Frederick Liu: Sure.
Stephen G. Breyer: -- why did some group of those people stop doing --
Frederick Liu: Right. Because --
Stephen G. Breyer: -- what would have eliminated the problem in this case?
Frederick Liu: Simple --
Stephen G. Breyer: Why?
Frederick Liu: -- simple answer. Because -- because it didn't work.
Stephen G. Breyer: Why didn't it work?
Frederick Liu: The old -- the old system had three problems.
Stephen G. Breyer: Yeah.
Frederick Liu: Number one, it wasn't allocating workload fairly among immigration judges, which is crucial in -- in a system where IJs are notoriously overburdened. Number two, it wasn't capable of prioritizing cases. This is also key in an immigration system because you want to give priority to aliens who are detained as opposed, for example, to aliens who are not. And third, the old system was limited access. Really, the only people who had access to it were what we called legacy INS officials, people who had access to the account because they happened to work for the INS before Congress changed the structure.
Stephen G. Breyer: As to the third, could you not invent a system today that would, in fact, allow people to know what hearing dates were available? As to the second, I have no view. I don't know why. But as to the second and the first, where does it say that?
Frederick Liu: Well, I think, Justice Breyer, to take your last part first, I think it's -- you know, it's not theoretically impossible to devise this system. My point is just that it would be a completely new system that basically --
Stephen G. Breyer: All right. The question is you gave me three reasons.
Frederick Liu: Right.
Stephen G. Breyer: The third one I'm rather dubious about. The first two I'm incapable of evaluating at the moment, so I want to know where those reasons appear.
Frederick Liu: Well, they --
Stephen G. Breyer: In what document shall I read the reasons that the BIA or whatever these organizations were, why they did change the old system, and I will find there what you just said, so I will be able to think about it, what document says that?
Frederick Liu: Well, there's no -- there's no document I can point to you, other than the BIA's decision in this case --
Stephen G. Breyer: No, I didn't find those reasons there. Are they there?
Frederick Liu: The BIA didn't specify --
Stephen G. Breyer: Okay.
Frederick Liu: -- reasons why --
Stephen G. Breyer: Well, it used to be -- there was a famous hot oil case, which you know, and they discovered that the reasons or the agency rule and so forth was in somebody's desk at the Interior Department and had never been published. So are we to, in fact -- that was the end of that case, by the way. But did -- did -- (Laughter.)
Stephen G. Breyer: Did -- did they, in fact, publish this anywhere? No is the answer. And so, if they don't really give a reason, and I have a hard time understanding it, am I -- is there a basis --
Frederick Liu: Well --
Stephen G. Breyer: -- on which I'm supposed to find it reasonable under Chevron's statute?
Frederick Liu: Well, but I think the reason given in the BIA's -- in the BIA's decision is the reason I am giving, which is, was -- it was infeasible for the DHS officers to be able to access the immigration court's docket to put the date in at this time.
Ruth Bader Ginsburg: What do we do with the immigration judge who tells us it was working fine; I don't know why they stopped it?
Frederick Liu: Well, the -- he doesn't know why he stopped it. I'm -- I'm telling you the reason why -- why we stopped it is because the reason didn't work. I -- I think what the -- I think what step 2 of Chevron does, though, is say that the statute doesn't rule out the system that the government has. In fact, we think it's the better reading of the statute. But that doesn't mean that -- that the fact that we haven't pointed in the record to precisely these reasons --
Sonia Sotomayor: Mr. Liu?
Frederick Liu: -- means that we're not entitled to Chevron deference.
Anthony M. Kennedy: What -- what percentage --
Sonia Sotomayor: Mr. Liu, you're not --
Anthony M. Kennedy: What percentage of notices to appear omit the time and date of the proceeding over the last three years, say?
Frederick Liu: The vast --
Anthony M. Kennedy: Over a given -- a given period?
Frederick Liu: The vast majority omit, so --
Anthony M. Kennedy: The vast majority omit --
Frederick Liu: -- almost 100 percent. Almost 100 percent. And I -- I think our experience in the Third Circuit shows that the fact that this is impractical is -- is -- is -- is genuine.
Sonia Sotomayor: Mr. Liu, is it impractical? You just said there was a system; it did have some flaws. Justice Breyer asked you, however, whether alternatives giving the date were considered. That you don't know.
Frederick Liu: Whether alternatives --
Sonia Sotomayor: Designs were considered that would give the date?
Frederick Liu: Well, like I said, the -- the system that was in place in 1996 and in 2006 and today isn't one that was going to allow for dates and times to be put on the vast majority of --
Sonia Sotomayor: I do look at legislative history, and the prior language with respect to order to show cause basically said you can give those dates if practical. I look at that, and Congress knew what the BIA was doing or not doing.
Frederick Liu: Right.
Sonia Sotomayor: And then it defines this notice to appear and drops those "as practical." To me, that's a very telling -- that's not -- that's legislative history but not in terms of what members said but what they did.
Frederick Liu: Right. And -- and --
Sonia Sotomayor: And, to me, that's often fairly convincing. Why isn't the dropping "as practical" --
Frederick Liu: Because --
Sonia Sotomayor: -- inclusive of your argument?
Frederick Liu: Well --
Sonia Sotomayor: Against your argument?
Frederick Liu: Well, two -- two points. The change that Congress made does mean that the notice to appear without the date is complete. But that just raises the question, which is the premise of the question presented, which is: Is that document that omits that date still a notice to appear? My second point is that if you -- that that -- that's only half the story. If you read the end of the story, Justice Sotomayor, you'll see Congress reaching back and making express in the text of the statute that those old orders to show cause that didn't include the hearing date do qualify as notices to appear and should be given stop-time effect. So Congress, while, yes, it did give -- move the notice of -- of the date requirement into a different subsection, at the very same time said: We still want the old documents to be given stop-time effect.
Stephen G. Breyer: Do you want to -- do you want to -- my questions were rather mean, but they were designed to uncover something.
Frederick Liu: Right.
Stephen G. Breyer: And -- and it is actually a very interesting question. I didn't mean them to be so mean, I'm sorry, but -- but the -- the fact is that there is an interesting Chevron question that's difficult, and that is: How much of a reason does an agency have to give?
Frederick Liu: And I --
Stephen G. Breyer: Can it just say something like not practical, which is denied by their former chairman? Do they have to go into it in some depth?
Frederick Liu: And --
Stephen G. Breyer: To what extent do they have to? You see that?
Frederick Liu: And -- and -- right.
Stephen G. Breyer: Because it's not just a rubber stamp job.
Frederick Liu: Well, and, Justice Breyer, I think if you look at this Court's past cases, it hasn't required this sort of administrative reason. I mean, you look at -- look at Martinez Gutierrez in 2012. That was a Chevron Step 2 case. There was actually even a question about whether the agency thought it was bound by a prior decision or was exercising its administrative judgment. And the Court said: Well, it's clear enough that the agency was exercising its administrative judgment. That's entitled to deference. I would say the same thing here. And here we have something even more because we do have the BIA saying expressly that it's -- it's picking this reasonable interpretation over the other precisely because this one is better from an administrative perspective.
John G. Roberts, Jr.: Suppose if you -- if, you know, you say this doesn't allocate workload, which is very important for the overburdened judges, it -- it -- it doesn't prioritize, all sorts of things, it's impracticable, then I suppose if we rule against you, you'll just say: Okay, we'll put a date in, and if it turns out we can't make that date, we'll move it back another six months. If it turns out we can't do that, and -- and -- in short, I'm not sure what that would accomplish.
Frederick Liu: Well, I'm not sure what it would accomplish either. And we actually believe telling the alien transparently that a date is to be set is better than telling the alien a date where we have maybe a 20 percent confidence level that that's going to be the actual date, but we know that, well, there's an 80 percent chance that it's -- it's going to be moved. And that's because I think there actually is more certainty to knowing, hey, look, it's a date to be set, you -- we put a bunch of advisals in the notice to appear to keep your address relevant. And I think the fact that it's a date to be set reinforces the importance of that. It's telling the alien: Look, nothing -- this isn't set in stone. We really do mean it when we say keep in touch with us. Putting the transparent date avoids sort of misplaced reliance on the old date, because these dates can not only move forward but can also move back --
Elena Kagan: Mr. Liu --
Ruth Bader Ginsburg: One question about --
Frederick Liu: -- as in paragraph 2.
Ruth Bader Ginsburg: -- the proceeding here. So, when the immigration judge ordered a removal in absentia, was the court aware that Pereira hadn't received any notice of the hearing place and date?
Frederick Liu: I believe the answer is no. I -- I -- I admit the record, the administrative record, we have is not exceptionally clear on that point, but my understanding is that in 2007, when that initial removal order was issued, that the IJ assumed that Pereira had received notice. Now, when it turned out later that Pereira hadn't received that notice, the IJ -- actually turned out to be the same IJ, reopened those proceedings. And -- and so that's the precise consequence that Congress attached to the failure to give the date and time. You see it play out in the very facts of this case. This is the (b)(5) consequence. When Congress said you need to get notice in accordance with paragraph 1 or 2 of Section 1229(a), this was the consequence it had in mind. You can't get removed in absentia, and you have the authority to rescind it. Now my friend says the date is important because it reflects the seriousness with which we're -- we're proceeding with -- with -- with the process. That argument was raised and rejected in a very similar context in Edelman. There, the -- the question was whether the requirement that a charge with the EEOC be -- be under oath or affirmation was part of what a charge was. And the Court said the point of that verification requirement was to ensure that the -- the complainant was serious enough and sure enough to support the complaint. That's why there was an oath -- an oath requirement. And the Court said that provision is not part of the definition of a charge. Neither provision incorporates the other so as to give a definition by necessary implication. And the Court said that to -- to recharge as incorporating the under oath requirement as part of its definition was "a structural and logical leap."
Elena Kagan: Could we go back, Mr. Liu, to the text of the statute, and could you tell me what your best response is to Mr. Zimmer's argument about this parenthetical "(in this section --
Frederick Liu: Right.
Elena Kagan: -- referred to as a "notice to appear")", which he says makes it clear that everything that follows is part of the definition of a notice to appear.
Frederick Liu: Right. I -- I think that parenthetical is just identifying the type of document that is. It's an easy shorthand to say the document that initiates the proceedings, and that's the title of 1229, Initiating Removal Proceedings, the document that does so is referred to as the notice to appear. I think it's just giving a -- an identifying --
Elena Kagan: So then what do we look to? When you were giving your sense of it has to include this, but it doesn't have to include that --
Frederick Liu: Right.
Elena Kagan: -- if -- if -- if we don't look to that parenthetical for the reason that you said, what do we look to to decide what is definitionally part of a notice to appear?
Frederick Liu: Right. Well, I think the Court applies the same functional approach that it's applied in Becker, in Scarborough with respect to fee applications, in Gonzalez v. Thaler with -- with respect to certificates of appealability, in Edelman with respect to charges filed with the EEOC. And I think the -- the Court does have to have some understanding of what the function of that document is. The statute here makes plain what the function of this document is. It is to initiate removal proceedings. I think it's also fair to look at the function of the stop-time rule, and the function of the stop-time rule is to basically say to the alien: Look, while it's true that being physically present in the United States builds some sort of reasonable reliance interests up to a point, it's no longer reasonable to rely on being in the United States once the government has given you a -- a notice to appear that tells you that the government intends to remove you. It was the point of the stop-time rule to make the stop-time determination turn on the beginning of the proceedings, not at things that would happen later. And if you're looking at legislative history, Justice Sotomayor, this is 143 Congressional Record S12266, where Congress, again, amending the statute to make clear that the old orders to show cause that lacked a date would qualify, said the reason we're doing this isn't because of some housekeeping measure but for the substantive reason, the affirmative reason, that we think the stop-time calculation should be made at the very beginning of the proceedings and shouldn't be affected by things like how crowded the immigration courts are, which could affect the timing of the hearing and, in turn, the -- the timing of the hearing notice. I -- I think my -- my friend in the reply brief puts a lot of weight on the word "under" and -- and says that the word "under" should be read to mean in accordance with. You know, this Court has said "under" is a chameleon and it must be understood in its context. And if there's one meaning of "under" that the context here rules out, it is the "in accordance" definition because, as I have said, (b)(5), Congress used those exact words. So we know that, when it wanted to express something different, it used a different word, as it did here. If there are no further questions, we ask that the judgment be affirmed.
John G. Roberts, Jr.: Thank you, counsel. Mr. Zimmer, three minutes.
David J. Zimmer: Thank you. I think the main point here that I want to make is just that the statute actually doesn't distinguish at all between these provisions in Section 1229(a), between the types of notice that are listed. And the government now wants to get up and say: Oh, well, we think certain ones are important and certain ones are unimportant. And, you know, the most straightforward response to that is that Congress treated them all identically and so, if any are required, which the government admits that some are, they must all be required. And, indeed, the BIA even recognized this. The BIA did not pick and choose. The BIA -- the BIA recognized it was either/or: Either they were all required or none were required. And the BIA held that there were no substantive requirements on a notice to appear to trigger the stop-time rule. Now, to the extent we want to pick and choose between these, it seems like the one thing that should be included in a notice to appear is when to appear. And so it's hard to see if the real inquiry here should be not what the BIA did but which of these are the most important, how the government can just pick, for instance, the nature of the proceedings against the alien, which is on the form, it's just a line on the top of the form that just says in removal proceedings under 240 of the Act. But the government doesn't need to actually tell the immigrant when and where to appear in a notice to appear. And, again, it's hard to see why that's what Congress would have intended, especially given that, in 1996, the same Congress that adopted the stop-time rule amended the statute to specifically include the time and place of proceedings in the notice to appear and, in fact, named that document a notice to appear. A notice to appear. So the Congress that adopted this stop-time rule knew that this was a document that included this -- the time and place of proceedings and, in fact, specifically it required that that be provided upfront. And, again, the government also notes that the -- the Congress would have wanted the stop-time rule to be triggered on the -- at the beginning of proceedings. But it's unclear why the proceedings begin at a time where the government has simply served a document on an immigrant without a time of hearing that has never even been filed in court. You would never say that a civil proceeding had begun when one party shared a draft complaint with the other party. The proceeding is begun when it's filed in court. And -- and so, in this case, the government is arguing that the proceeding -- that the stop-time rule should be triggered long before the proceeding starts. In fact, in Camarillo's case, two years before the proceeding was started. In this case, over one year before the proceeding was started.
Ruth Bader Ginsburg: But when he -- when he had notice that the government was going to attempt to remove him?
David J. Zimmer: Well, that the government might attempt to remove him. The government does not always even file these notices in immigration court. If you look at data, public data from DHS and the immigration courts, approximately 10 percent of notices to appear that are issued are never even filed in immigration court at all. So there's not even a guarantee that when one of these documents is served, is actually served on an immigrant, the government could choose -- it could exercise prosecutorial discretion and never file it in immigration court. That's certainly something that DHS could do and it's something that DHS does. And that's why Congress triggered the rule on an actual proceeding, when government -- when the government was ready to go forward with an actual proceeding, when there were charges identified and when there was a time and place of the proceeding identified, not at the time the -- that the government expressed some abstract intention of possibly seeking removal in the future. Thank you very much.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.