Words, Legal Words, and Damn Words

Image by Monika Robak from Pixabay

Let me describe this Article in a nutshell: The Supreme Court declined to ignore the “cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant.” Kungys v. United States, 485 U.S. 759, 778 (1988) (plurality op.) (opinion of Scalia, J.) (as quoted in Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012), https://amzn.com/031427555X). You can click off now.

Or not.

Justice Gorsuch wrote the opinion in Niz-Chavez v. Garland, 141 S. Ct. 1474, 209 L. Ed. 2d 433 (2021), https://www.scribd.com/document/507305941/, that decided, in a nutshell, that the article “a” dictated that one (a) notice to appear for an immigration legal proceeding must be sent to the Respondent with all the relevant information required by statute. Is this case totally ridiculous? Well… Justice Gorsuch would disagree, and Justice Kavanaugh would agree. Surprising majority and minority, am I right?

We assume the reader’s familiarity with the case. Niz-Chavez, 141 S. Ct., at 1478-79; Niz-Chavez v. Barr, 789 F. Appx. 523 (6th Cir. 2019), https://www.scribd.com/document/507887581/.

As Justice Gorsuch said in the opinion, “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 exactly 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 information.” Niz-Chavez, 141 S. Ct., at 1480 (opinion of Gorsuch, J.)¹ Though, Justice Kavanaugh dissented, simply siding with the Government’s practical position. See Brief for the Respondent at 12, Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (No. 19-863), 2020 WL 5763867, at *12 (“Practical considerations warrant no departure from Section 1229(a)(1)’s text.”). These “practical considerations” are sourced, in my opinion, from a Justice Department memorandum that the Solicitor General mentioned in their merits brief. See Acceptance of Notices to Appear and Use of the Interactive Scheduling System, FIM-OPPM 19-08 (Dec. 21st, 2018), 2018 WL 11274354, https://go.usa.gov/xGkzP.

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Here’s a summary of the decision: Adam Liptak, A Sharp Divide at the Supreme Court Over a One-Letter Word, The New York Times (Apr. 29th, 2021), https://nyti.ms/3aKIfQz [https://perma.cc/V8PU-SJTD].

Footnotes

¹ Petitioner conceded that two separate documents, one saying “you are subject to removal” and the actual notice of the hearing in the same envelope would trigger the time-stop rule. See Transcript of Oral Argument at 7-8, Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (No. 19-863), 2020 WL 6564758. However, Petitioner did say that the documents being mailed separately does not trigger the time-stop rule. Id., at 6, 9.

Author’s Note

The title of this post was derived from The West Wing: Lies, Damn Lies, and Statistics, which I suspect was derived from the phrase “lies, damned lies, and statistics”.

17 year old Austinite. Aspiring to be an attorney-at-law. Ze/zem or they/them pronouns.