Supreme Court weighs whether later hearing notices can cure defective immigration 'notice to appear'

WASHINGTON — The U.S. Supreme Court on Monday heard arguments in consolidated cases challenging whether the government may rely on a later “notice of hearing” to support removal of a noncitizen who missed a hearing when the original “notice to appear” listed the date and place as “to be determined.”

Mister McLeod, arguing for the United States, told the justices that both forms of statutory notice created by Congress can independently support an in absentia removal, and warned that the Ninth Circuit’s contrary rule "defies text, context, and common sense" and could unsettle “hundreds of thousands of in absentia orders” entered over nearly three decades.

The core dispute centers on how to read 8 U.S.C. § 1229(a) (the INA notice provisions) and two decisions of this Court: Pereira and Niz‑Chavez. McLeod urged the Court to treat Pereira as a narrow decision about the stop‑time rule rather than a broad bar to the government’s position, and he argued that paragraph 2 notices that "set the new time and place" supply the information a noncitizen needs to appear.

Several justices pressed McLeod with a "blank‑NTA" hypothetical—if an initial notice contained no charges or no right‑to‑counsel information, could the government still remove someone in absentia after sending only a paragraph 2 notice? McLeod pointed to regulatory safeguards, the statute’s clear‑and‑convincing‑evidence standard, and the immigration judge’s review as protections; dissenting questions warned that relying on paragraph 2 alone would create perverse incentives for the government to issue minimal initial notices and later remove people without ever providing paragraph‑1 information.

Miss Anand, arguing for the respondents, urged the Court to reject the government’s argument. She told the justices that Pereira and Niz‑Chavez place the notice to appear at the center of the statutory scheme and that paragraph 2 is a supplement, not a substitute, for a valid paragraph 1 notice. Anand said allowing paragraph 2 to stand alone would permit removal "without ever hearing [the noncitizen's] side of the story."

Justices debated statutory hooks such as the word "change" in the paragraph 2 provision, analogies (including a voter‑registration/change form example offered by counsel), and whether the text that authorizes removal "after written notice required under paragraph 1 or 2" should be read literally. Several justices asked whether remedy questions — for example, whether a ruling for respondents would automatically entitle a large number of people to reopening — are separate from the present question and, if not, what practical effects would follow.

Both sides acknowledged practical consequences: McLeod said the government has reduced the use of TBD notices since Pereira, while Anand and some justices warned that a ruling for the government could encourage continued use of TBAs and potentially inject many cases back into an already burdened immigration system. Anand also emphasized that the statute authorizes rescission of in absentia orders "at any time" when adequate notice was not provided.

After roughly two hours of argument and extensive bench questioning, the government made a short rebuttal and the case was submitted to the Court.

What happens next: The Court will take the briefs and arguments under consideration before issuing an opinion; no timetable was given during the argument.