Gorsuch’s textualism gives immigrant a chance to challenge deportation

Supreme Court Justice Neil Gorsuch, joined by an unusual alignment of conservative and liberal justices, ruled in favor of a ‘nonpermanent resident alien’ on Thursday who is seeking to challenge his deportation, arguing that the government had not given him proper notice of his removal proceedings.

The case is extremely technical concerning immigration procedures and the interpretation of a sentence in immigration law, but the opinion produced odd bedfellows as the justices quibbled over statutory interpretation and opened fissures related to how closely the court should rely on the exact text of a statute when interpreting the law.

Gorsuch’s 16-page opinion highlights his fidelity to his view of “textualism” — the task of interpreting the words on the page. It was a judicial philosophy championed by the late conservative icon Justice Antonin Scalia, who reshaped how judges look at statutes by insisting that they put a sharp focus on what Congress actually said, and not what it might have intended in passing a law.

But recently, conservative justices have deeply divided on how the method should be applied which has resulted in unusual voting patterns, and sharp words, as was evident on Thursday.

Gorsuch, writing for the 6-3 majority, held that the US government had erred by sending two documents to the immigrant instead of one. He explained that the Illegal Immigration Reform and Immigrant Responsibility Act says that an undocumented immigrant seeking to fight removal can be served with “a notice of appeal.” But here, the immigrant was sent two notices of appeal with different information.

“The government says it needs this kind of flexibility to send information piecemeal,” Gorsuch wrote — but he emphasized that the law calls for only one document.

“Admittedly, a lot here turns on a small word,” Gorsuch said referring to “a.”

Gorsuch, however, had no sympathy for the federal government.

“If the government finds filling out forms a chore, it has good company,” he wrote. “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.”

He provided a stark example from the immigration area. “Asylum applicants must use a 12-page form and comply with 14 single-spaced pages of instructions,” Gorsuch wrote. “Failure to do so properly risks having an application returned, losing any chance of relief, or even criminal penalties.”

Last term, Gorsuch stunned conservatives when he once again relied on his view of textualism to rule in favor of LGBT workers. At issue in that case was whether title VII of the Civil Rights Act, that bars discrimination “because of sex” also covers claims based on sexual orientation and gender identity. Gorsuch, joined by the Chief Justice John Roberts and the four liberals on the bench at the time, held that it did.

At the time Justice Samuel Alito, joined by Justice Clarence Thomas, wrote, “The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated.”

On Thursday, Gorsuch was joined by conservative Thomas, Justice Amy Coney Barrett and the three liberals on the bench in the 6-3 decision.

Three conservatives — Justice Brett Kavanaugh, joined by Chief Justice John Roberts and Alito — read the immigration statute differently and quibbled with Gorsuch’s interpretation.

“The Court’s decision contravenes Congress’ detailed requirements for a noncitizen” to fight to cancel his removal, Kavanaugh wrote in the dissent. He said that the two documents the government sent two months apart “included all the statutorily required information.”

Kavanaugh added that he found the majority’s reasoning “rather perplexing as a matter of statutory interpretation.” He said that the immigrant actually “gains an advantage” when the government sends two documents instead of one because he can learn more about the removal proceedings. Kavanaugh said that delivering the documents in two installments satisfies the requirements of a “notice to appear.”

The ruling means that Agusto Niz-Chavez, a native and citizen of Guatemala, can challenge his deportation in court. Niz-Chavez arrived in the US unlawfully in 2005. He had left Guatemala after a land dispute and settled in Detroit in 2007. He has three children. He was stopped twice for driving without a license and in 2013 for a broken taillight, after which he was referred to immigration authorities.

Under law, an immigrant can apply for cancellation of deportation if he has been in the United States for 10 years.

Niz-Chavez’s lawyers claimed that he was in the US for 12 years. But the government argued that when it sent the “notice to appear” it served as a “stop-time” mechanism and he could only claim continuous residency for eight years.

For Gorsuch, that small difference of the exact language matters — and ignoring it would lead the court down a dangerous road.

“We are no more entitled to denigrate this modest statutory promise as an empty formality than we might dismiss as pointless the rules and statutes governing the contents of civil complaints or criminal indictments,” Gorsuch wrote Thursday.

“Words are how the law constrains power,” he said.