Jurisprudence

Neil Gorsuch’s Persnickety Libertarianism Gave Immigrants a Win at the Supreme Court

The decision came down to a one-letter word.

Neil Gorsuch stands smiling in his robes in front of a red velvet curtain.
Justice Neil Gorsuch. Erin Schaff/Getty Images

Niz-Chavez v. Garland is a technical case that boils down to the meaning of the word a. But in the hands of Justice Neil Gorsuch, it was transformed into a call to arms against big government cutting corners to screw over the people. Playing his favorite role of uncompromising textualist on Thursday, Gorsuch pilloried the federal government for attempting to deport an unauthorized immigrant without sending him proper notice of his removal proceedings. In dissent, Justice Brett Kavanaugh accused the majority of being “literalists.” But when someone’s liberty is on the line, taking their rights literally may not be a bad idea.

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Niz-Chavez is a sequel to the Supreme Court’s decision in 2018’s Pereira v. Sessions. Both cases involve a federal law governing the deportation of immigrants who live in the United States without authorization. The law lets executive branch officials cancel the removal of these immigrants if, among other things, they’ve resided in the country for 10 years. But there’s a catch: If the government sends them “a notice to appear” at a removal proceeding, it stops the clock, for legal purposes, on their time living in the country. So, for instance, if an immigrant gets a removal notice after living in the U.S. for nine years and 11 months, they can’t cancel their deportation even after they cross the 10-year threshold.

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In Pereira, the Supreme Court addressed a tactic that immigration officials used to game this rule. These officials would send immigrants a notice of removal that omitted key information, like the time or place of the removal hearing, and claim that this incomplete notice stopped the clock. By an 8–1 vote, the court rejected this ploy, holding that officials must send an immigrant all the information required by statute to stop the clock on an immigrant’s presence in the country for legal purposes.

Immigration officials took a slightly different approach when attempting to deport Agusto Niz-Chavez in 2013, when he had lived in the U.S. for eight years. (Niz-Chavez fled his home country of Guatemala after villagers tried to seize his land and threatened to kill his family; if sent back, he fears he will be killed.) First, officials sent an incomplete notice of the charges against him; then, two months later, they provided the date and location of his hearing. Because these two notices, together, provided Niz-Chavez all the required information, the government argued, it could stop the clock and deny him an opportunity to contest his deportation.

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On Thursday, the Supreme Court rejected this scheme by a 6–3 vote. Gorsuch’s majority opinion zeroed in on the text of a statute—specifically, the words a notice to appear. To stop the clock, Gorsuch wrote, the government “must serve ‘a’ notice containing all the information Congress has specified.”

“To an ordinary reader,” Gorsuch explained, the phrase “ ‘a’ notice would seem to suggest just that: ‘a’ single document containing the required information, not a mishmash of pieces with some assembly required.” The government argued that a, as an “indefinite article,” may refer to something “provided in more than one installment”: “a story” published serially, for instance, or “a manuscript” delivered chapter by chapter. Kavanaugh, in dissent, provided his own examples, “a job application” or “a contract,” that are prepared in parts.

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But “the trouble with this response is that everyone admits language doesn’t always work this way,” Gorsuch countered. Rather, “context matters.” Here, the term notice can refer to “either a countable object,” like “a notice,” or “a noncountable abstraction,” like “proper notice.” By using “a,” Gorsuch wrote, Congress provided evidence “that it used the term in the first of these senses—as a discrete, countable thing.” He added that the same law uses the words the notice in other contexts, signaling the need for “a discrete document” rather than “a collection of information.” All of this adds up to one conclusion: To stop the clock, the government had to send Niz-Chavez a single notice containing all the requisite information; because it did not, it never stopped the clock, and Niz-Chavez can challenge his deportation.

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To balance his grammatical geek-out, Gorsuch heaped on his usual libertarian rhetoric. Under these circumstances, it hit the right notes. “If the government finds filling out forms a chore, it has good company,” he quipped. “The world is awash in forms, and rarely do agencies afford individuals the same latitude in completing them that the government seeks for itself today.” Gorsuch cited the example of asylum applicants, who must “use a 12-page form and comply with 14 single-spaced pages of instructions,” pointing out that “failure to do so properly risks having an application returned, losing any chance of relief, or even criminal penalties.” Really, though, “anyone who has applied for a passport, filed for Social Security benefits, or sought a license understands the government’s affinity for forms,” and the “penalty” for making a mistake. Just because the government “finds some of its forms frustrating” doesn’t mean it can take a shortcut.

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In his dissent, Kavanaugh chided Gorsuch for exaggerating the unfair consequences of the government’s scheme. Big mistake. Gorsuch’s rejoinder captures exactly why this case, for all its grammatical complexities, is so important to actual people. “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,” the justice wrote. “These might trail in over the course of weeks, months, maybe years, each containing a new morsel of vital information. 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.” (At oral arguments, the government acknowledged that, in its view, it could proceed “in just this fashion.”)

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Unable to resist a quotable peroration, Gorsuch saved the best for last. “At one level,” the justice wrote, “today’s dispute may seem semantic, focused on a single word, a small one at that.” He continued:

But words are how the law constrains power. In this case, the law’s terms ensure 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.

An unusual coalition joined Gorsuch in Niz-Chavez: Justices Clarence Thomas and Amy Coney Barrett signed on to the majority opinion, along with the three liberals. Perhaps Gorsuch’s desire to attract conservative votes motivated his decision not to cite an obvious precedent that he himself authored: Bostock v. Clayton County. In Bostock, Gorsuch held that the plain meaning of the Civil Rights Act prohibited discrimination against gay and transgender employees, using a traditionally conservative methodology to reach a progressive result. “Only the written word is the law,” Gorsuch wrote then, “and all persons are entitled to its benefit.”

On Thursday, Agusto Niz-Chavez received the benefit of the written word. He can now petition for the ability to remain in the United States with his three children, all American citizens. The decision may not be an earthshaking victory for immigrants’ rights. But it vindicates a principle that has been badly damaged in recent years: Immigration officials can’t cheat noncitizens out of a right guaranteed to them by the plain language of the law.

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