tv Pereira v. Sessions Oral Argument CSPAN June 23, 2018 7:05pm-8:01pm EDT
he was subject to deportation after a legal hearing in 2007 for which he did not show up. the case centers on a notice he received from the government called a notice to appear and whether it allowed him to fight the deportation order. , withcision was 8-1 justice samuel alito the lone dissent. here is ordinal -- oral argument. we will hear argument next in .ase 17459, pereira v sessions please the court, the stop time rule specifies what the government must do to end a immigrant's presence. as the name suggests, the government cannot serve a notice to appear without telling an
immigrant when and where to appear. a notice todefines appear as a notice that provides the time and place at which proceedings will be held. a notice of that lacks that is not a notice to appear and does not trigger the rule. >> you just said defines of the notice of appear. why do you think those 10 requirements defined the notice? you can imagine a case where somebody says, requirement seven is not in the notice. that was a mistake so it is flawed. it is still a notice to appear. it does not become not a notice because there is a flaw. section 1229 a does not state what a notice to appear shall contain.
it specifically, the phrase in this section is referred to as a notice to appear. that is definitional language congress uses to use -- to give meaning. let me give you an example of this. including one example where congress referred to this as definitional. unlike a provision that states what a notice to appear shall contain, this states the document in this section is written notice. it specifies the required information. >> if anyone is left out, it is not a notice? >> that is right. it is important to recognize that most of the information will not very. it is standard information. it is on the form and so what twoe talking about are
types of information, the factual and legal charges and the time and place of the a hearing. those are the pieces of information that are required. it is reasonable that congress insisted those two pieces of information be included to stop the time. those are the pieces of information that showed if the government is serious and committed to going forward with a removal proceeding. the fact that those are required is supported by the only reason identified for which congress enacted this rule. no stop 1996, there was time rule and immigrants continue to accrue continuous residence until they were moved from the country. do think your interpretation is so clear it would not be necessary to get beyond step one
of chevron? >> yes. it is so because of definitional language. >> where is the definitional language? >> that is language use throughout the u.s. code to define terms when congress states the document is a notice to appear. that the government serves written notice that does not specify that, it has not served a notice to appear. that line appears throughout the u.s. code and is used to do what it does, too defined terms to have a specific substantive meaning. under in theword word notice to appear definitional section is different than what is done in other parts of this that said in accordance with all required under.
there is a difference of usage. why should we give at the same meaning? does that create and and be the duty -- great a ambiguity? >> even the government admits congress was not consistent in how it identifies the becauseion required congress uses notice in accordance with and one time required under. there is no dispute congress was not consistent. the difference is in those provisions, those referred to the notice required under the section and there is no defined term. that is the difference. the stop time rule is referring to the notice to appear and it is a defined term to mean because it is a defined term,
there is no additional language needed to convey. >> if we were to disagree with you and say there is ambiguity, where does that leave your argument? as we explained in the brief, we argue and believe the interpretation is unreasonable. step, the fact that the section does use the defined term notice to appear and the stop time rule is triggered on service of a notice , that does require the government serves the document identified. >> i am having a logistical problem.
this notice to appear but at the time the department does not know when the immigration court is going to be able to slot this case in. it wants to stop the clock on accumulating years in the united noticeso it sends this and time to be determined. how is the department supposed to redo term in the time -- supposed to determine the time? >> the government was using a system that did allow it to identify the time and included on the notice. detail explained in more on the briefs submitted who explained the system allowed the between the
department of homeland security and the immigration courts such that individual officers could identify a time that could be included. it explains why the system not only works but made the courts function more effectively and the government admits it has the system and stopped using it. there is no explanation as to why. this is not insurmountable. government had systems that did this and it is no surprise the government had this given that police officers all across the country are able to include hearing dates on traffic tickets. when they pull someone over, they can use any electronic system to identify the next date and included on the ticket. this is not a problem. this is the way the dhs has chosen to implement it system. did you say you do not know
why they abandoned that? >> as far as we know, they have never explained. brief, heidt's amicus had no idea. as he explains, the system worked. it made the immigration system work more effectively. there are problems by not including this information. >> wouldn't it be better to include a date even if in the majority of cases, the date is going to be changed, which can -- done?uestion mark >> yes, it is better. the first is requiring the government to include a date ensures that when the immigrant is prevented from accruing additional time, the government is serious about a removal
proceeding. served one of these notices that did not include time and place and sat on it without doing anything. it is reasonable that congress thought that time should continue to increase -- continue to accrue. when they aree ready to proceed on that date, the date is changed. >> i think the system does assume a degree of good faith on the government's part and not put a date they know to be false. i thought they example you gave us was an example of bad faith. >> what happened was not bad faith. they served a notice at a time they were not ready to go forward. there is nothing wrong with doing that, with serving notice and saying we going to go
forward at some time in the future. the statute congress wrote makes clear the results is that time does not stop until the government is ready to go makes sense,hat looking at the history of why congress enacted this. congress wanted to make sure immigrants were not able to avoid proceedings to manufacture additional time. prior to 1996, congress thought time was a problem because continue to accrue until the person was removed. that created incentives for immigrants to file motions and to avoid proceedings and to gain additional time. what the rule does is at the , timehere is a hearing stops. until that time, until a hearing has been scheduled, the delay is
with the government and governmental delays have accounted towards accrual of additional residents. they send a notice specifies a date and then they send another notice that says the proceeding is canceled and they knew date will be set at some time. what would happen? context, that is interesting. -- as of theotice time that the initial notice was on thehere was a date notice and that satisfies the statute. i'mhe government did not -- not sure the statute allows the government to do that. change in thea hearing but i'm not sure it allows for a change to know date. >> the provision requires a change, doesn't it? >> i do not think anything would
allow the government to change a date to no date. >> it is an important question. there are a lot appearing's and there are limited numbers of people available to conduct the hearing. says, a normal process, we try to get you in, we try. they turn out not to be able to. they say, here is the time you go up. thecome back later and if officer is not there, it shows up. i do not see what is different from that. , practical take considerations do have some role to play. why, the notice, the government has shown if they are
ready to go forward. >> i thought you were suggesting they could not put it off to the next time. >> they can change the date. , we they cannot do is say are not giving you an additional day. >> lets go bask and ask how this works. back and ask how this works. they do not give you a date and then they mail something to you giving you a date? what happens, they did not give him a date? toy sent a change of date the wrong address and he did not get notice of the change and he was deported, correct? a final order of removal was entered. >> my question is, if you do not show up, because you're not told
when to show up, do you have an obligation to tell them where to mail the notice to? >> yes, you do. to mailell them where the notice to and they did not send it to that address. >> why are we here? i'm asking as a practical question. wouldn't the final order have to be vacated because he was never given proper notice of the change of address. >> that notice was vacated. the issue is, when the government began removal heceedings in 2013, after had accrued the 10 years of continuous presence. to the logistical , when the government is trying to go forward with proceedings, the fact there may
be delay in scheduling those does not count against the government and does not change the trigger. the government is going forward with proceedings. when the government sends a notice that does not have a hearing at all, that allows the government, it stops the process. the government is not going forward with removal proceedings. >> it is just a question of the significance. can say we are interested in taking this action. are goingknow when we to have the available officers and we will let you know. or we say, we're going to do it and an officer is not available. is there any difference? >> there is a big difference. they are not trying to do that. government serves an initial notice, it does not
represent the intention to go forward at that time. after they, government served this, it is not they could not find a hearing. thegovernment did not file notice with the court for two years. it sat with the government doing nothing. there is every reason to think congress believed in that situation, that time would not count for the government but that residents would continue to accrue because the government had not taken the trouble to schedule a hearing. as soon as congress schedules a hearing, time stops. like some sort of bad faith exception. i do not understand what would be achieved. let's assume there was a reason. we will ask why they have adopted this policy.
if they have difficulty ascertaining the date and we were to adopt your rule, they be held a these would certain number of days after the notice goes out. , if we seeefore then we're not going to be able to do to extend iting for 30 days and they keep doing this. what is the difference between that and the situation here? >> if i understand correctly, the difference is, in that situation the government could solve the problem by providing the date. the concern, if i am correct, it may be creating an incentive for the government to issue earlier notices to appear on dates for which it has no intention of proceeding in order
to stop the clock for clients like yours rather than being more forthright and saying, we do not know but here is a notice to stop the clock. it is just a paper exercise. i do not think that is a concern. the concern goes the other way. there is no reason to think the government is going to lie. >> we would not go that far, counsel. it is a matter of administrative convenience that we are going to listen for the first tuesday on the second month and maybe we will get there and maybe we will not. we will send out a new notice and the new notice and a new notice until we get to the date. what is the difference between that and the regime we currently have and why is one better than the other? when courts require additional procedures to aid a criminal defendant, they wind up creating
an unintended effect. >> it would not create an adverse effect. there is prejudice to immigrants from these notices that do not include the date and time because it creates uncertainty. they do not know if the government is going to go forward. will it be tomorrow, in two years? if the proceeding is ongoing, you encouraged the government to go forward with the proceeding. if they do not have to provide a date, you get cases like this. the government did not file the notice for over a year after it was served, putting aside the problems they had. the government did not try for over a year. >> with her be any remedy for your client -- would there be any remedy for your client? >> if you're she wanted the
hearings to proceed, they could go in an attempt to have a hearing held. once the government is moving forward with proceedings, the stop time rule has been triggered. >> would your client go to immigration fruit -- court before it is filed? >> no. start of your client's ability to force the government to give it a hearing does not start until it is filed in the court? >> that is correct. often, these notices do not say which court. the notice to appear is not valid in till it is filed with the immigration court. >> that is correct. cause today,o show
it is not valid, it does not top the clock -- not stop the clock, correct? >> if it is never filed. an answer is your client can make no choices until the court is notified. >> that is correct. that is one of the reasons that is a key moment. ass goes back to the history to why this is created in the first place which was to present -- prevent immigrants from extending proceedings by avoiding proceedings. ,ntil a hearing is scheduled that concern does not come into effect. there is nothing in immigrant can do to avoid a proceeding that has not been scheduled. approach woulds allow the government to trigger
the stop time rule before it has in the intent of going forward. notices to appear on the suspicion someone might be removable without identifying a hearing date. there is no reason to think that thatat congress intended, congress would have intended the department of homeland security to stop their time by handing out a form that did not identify why the person was removable. can i ask about your assertion that this is definitional in nature? is that necessary to your argument. here is an alternative view to your language. this language is a notice of shorthand. something,call this this thing that tells you to appear and this is what we are going to call it.
it does not suggest that isrything we say about this -- defines what a notice to appeal is. 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 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 statute is written our argument is not that , there cannot be a flaw. so, certainly, there can be mistakes that can be corrected. 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 can have mistakes in it. it is not that it can't be corrected later, but 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 mr.ar when it did not tell pereira to appear at any particular time. 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 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 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 absolutely not definitional. 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 -- sorry. 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 shall be referred to as a brief so any document that's filed that omits anything that's required by rule to be included would not be a brief any longer? david j. zimmer: if the rules were written that way, yes. of course, the rules aren't written that way, and they're not written that way for a reason. and that is 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 has told the alien that it intends 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 b.i.a. reasonably concluded -- sonia sotomayor: we don't know that until it's filed with the immigration court. your agency has already said that in ordaz. 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 don't see in the language of this statute. maybe you can tell me where i can find it. 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. the b.i.a. 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. i am thoroughly confused by that. maybe you can help me out. frederick liu: well, 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.
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 eeoc. 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? a blank page with the title notice to appear, would that suffice? frederick liu: a blank page -- a blank page would not be a notice to appear. 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'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? those seem the two most critical components 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 we have very good evidence that congress thought the when and the where wasn't part of the essential function. neil gorsuch: well, ok. 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 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 as i say that 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: ok. 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: ok. and how about c and d? frederick liu: c and d. neil gorsuch: so it's only the date and time that 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'd don't need to tell them they need counsel, for example. frederick liu: no. neil gorsuch: ok. 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 to tell you the nature of the proceedings. 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 this statute. i mean, congress could have done that. 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 69(a). 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.
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 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 apologize for beating , you over the head with it, but 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. 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 is not the essential function of a charging document. elena kagan: well, you talk about it as a charging document. i hate to interrupt you, but 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 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 -- i mean, it's possible we will agree with you. i mean, it does say that the clock 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.
in the government's view, i looked at the notice to appear every one of those things is , included on the document, except not notice to appear -- i mean, where you're supposed to appear. 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? the former chairman of the b.i.a. says there used to be a process called interactive scheduling. it meant that a human being who was over at d.h.s. would go to his computer, find out what dates were available, and fill them in. 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." ok. 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 because of the structure of the statute and the regulations. stephen g. breyer: no, no, not because of the structure. i mean, why did the d.h.s. or the b.i.a. or the eoir or the doj why did some group of those , people stop doing what would have eliminated the problem in this case? frederick liu: simple answer. it didn't work. the old system had three problems. number one, it wasn't allocating workload fairly among immigration judges, which is
crucial in a system where i.j.'s are notoriously overburdened. number two, it wasn't capable of prioritizing cases. this is 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. the only people who had access to it were what we called legacy i.n.s. officials, people who had access to the account because they happened to work for the i.n.s. 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, 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. 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. in what document shall i read the reasons that the b.i.a. 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 document i can point to you, other than the b.i.a.'s decision . stephen g. breyer: no, i didn't find those reasons there. are they there? frederick liu: the b.i.a. didn't specify. 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. that was the end of that case, by the way. 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, is there a basis on which i'm supposed to find it reasonable under chevron's statute? frederick liu: well, but i think the reason given in the b.i.a.'s decision is the reason i am giving, which is it was infeasible for the d.h.s. 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 telling you the reason why we stopped it is because the reason didn't work. 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 does not mean that the fact that we haven't pointed in
the record to these reasons means that we're not entitled to chevron deference. anthony m. kennedy: what -- what percentage of notices to appear omit the time and date of the proceeding over the last three years, say? frederick liu: the vast majority home it. almost 100%. i think our experience in the third circuit shows that the fact that this is impractical 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. designs were considered that would give the date? frederick liu: well, like i said 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. 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 b.i.a. was doing or not doing. and then it defines this notice to appear and drops those "as practical." to me, that is a telling -- that's legislative history but not in terms of what members said but what they did. to me, that's often fairly convincing. why isn't the dropping "as practical" frederick liu: well, two points. the change that congress made
does mean that the notice to appear without the date is complete. 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? that's only half the story. if you read the end of the story 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 move the notice 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 -- my questions were rather mean, but they were designed to uncover something. it is actually a very interesting question. i didn't mean them to be so mean. the fact is that there is an interesting chevron question
that is difficult and that is how much of a reason does an , agency have to give? 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? to what extent do they have to? because it's not just a rubber stamp here. 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 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. the court said, it's clear enough that the agency was exercising its administrative judgment. that is entitled to deference. i would say the same thing here. and here we have something even more because we do have the b.i.a. saying expressly that 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 say this doesn't allocate workload, which is very important for the overburdened judges. it doesn't prioritize, all sorts of things, it's impracticable, then i suppose if we rule against you, you will say 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 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% confidence level that that's going to be the actual date, but we know that there is an 80% chance it is going to be moved. there actually is more certainty
to knowing, hey, look, it's a date to be set we put a bunch of , advisals in the notice to appear to keep your address relevant. the fact that it's a date to be set reinforces the importance of that. it is selling the alien 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. ruth bader ginsburg: one question about the proceeding. 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 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 i.j. assumed that pereira had received notice. when it turned out later that pereira hadn't received that notice, the ij reopened those proceedings. 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 cannot 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 are proceeding with the process. that argument was raised and rejected in a very similar context in edelman. 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 complainant was serious enough and sure enough to support the complaint. 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. the court said that 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 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. >> 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 is referred to as the notice to appear. i think it's just giving 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 does not have to include that. 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 respect to certificates of appealability, in edelman with respect to charges filed with the eeoc. i think 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, 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 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 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 timing of the hearing notice. my friend in the reply brief puts a lot of weight on the word "under" 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, 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. the b.i.a. even recognized this. the b.i.a. did not pick and choose. the b.i.a. recognized it was either-or. either they were all required or none were required. the b.i.a. held that there were no substantive requirements. 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.
the real inquiry here should be not what the b.i.a. 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 . the government doesn't need to actually tell the immigrant when and where to appear in a notice to appear. 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 the time and place of proceedings and specifically required that that be provided upfront. the government also notes that the congress would have wanted the stop-time rule to be triggered at the beginning of proceedings.
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 is filed. the government is arguing that proceeding, that the stop-time rule should be triggered long before the proceeding starts. in camarillo's case, two years before the proceeding was started. ruth bader ginsburg: but 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 file these notices. public data from d.h.s. and the immigration courts, approximately 10% of notices to appear that are issued are never filed. there's not even a guarantee that when one of these documents is served, is actually served on an immigrant. 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 d.h.s. does. and that's why congress triggered the rule on an actual proceeding, when the government was ready to go forward when , there were charges identified and when there was a time and place of the proceeding president trump addresses the republican convention in las vegas. bushr first lady laura discusses the importance of conservation. policy advisor to mitt romney talks about the cost of paul -- climate change. remark earlier's today at the republican party state convention in las vegas. this is about 40 minutes. [applause] ♪