The question
Whether an alien ordered removed in absentia may seek rescission of that order under 8 U.S.C. section 1229a(b)(5)(C)(ii) on the basis of a defective initial notice to appear when the government provided a proper section 1229(a)(2) notice for the hearing the alien missed.
Campos-Chaves v. Garland
What the Court decided
Affirmed. The three aliens cannot rescind their in absentia removal orders on the basis of defective notice because each received a proper section 1229(a)(2) notice for the hearing they missed and at which they were ordered removed. The Court read the phrase "notice in accordance with paragraph (1) or (2)" as disjunctive, so provision of a single valid notice under either paragraph defeats a rescission claim. The controlling notice is the one for the missed hearing, and a paragraph (2) notice supersedes the earlier notice to appear.
How the justices split
5-4The Court's opinion
Alito, joined by Roberts, Thomas, Kavanaugh, Barrett
The word 'or' in 'notice in accordance with paragraph (1) or (2)' is disjunctive, so the government's provision of a single valid notice under either paragraph (1) or paragraph (2) defeats rescission under section 1229a(b)(5)(C)(ii). The controlling notice is the one for the hearing the alien missed and at which he was ordered removed, and a paragraph (2) notice supersedes the notice to appear by informing the alien when to appear. Because each alien received a proper paragraph (2) notice for the missed hearing, none may seek rescission on the basis of a defective notice to appear.
Dissenting
Jackson, joined by Sotomayor, Kagan, Gorsuch
The dissent would read the statute to allow an alien to seek rescission by demonstrating that he did not receive a proper notice to appear under paragraph (1), distributing the phrase 'did not receive notice in accordance with' across both paragraphs so that a defective initial notice to appear supports rescission.
How we know · 5 sourced claims
The Court held that aliens who received a proper section 1229(a)(2) notice for the hearings they missed cannot seek rescission of their in absentia removal orders on the basis of defective notice under section 1229a(b)(5)(C)(ii).
Source: syllabus, Held
The cases were consolidated, one arising from the Fifth Circuit and two from the Ninth Circuit.
Source: syllabus, Held
The Court reasoned that the word 'or' is almost always disjunctive, so either a paragraph (1) notice or a paragraph (2) notice can count as notice in accordance with paragraph (1) or (2).
Source: syllabus, Held
A paragraph (2) notice supersedes the notice to appear, and it is that notice which informs the alien when to appear.
Source: syllabus, Held
Justice Alito delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Thomas, Kavanaugh, and Barrett; Justice Jackson filed a dissent joined by Justices Sotomayor, Kagan, and Gorsuch.
Source: syllabus, lineup