This is Bloomberg Law with June Brussel from Bloomberg Radio. In a six or three decision with an unusual alignment of justices, the Supreme Court hand did a victory to longtime illegal immigrants this week with a ruling that turned on a single word, the smallest word in the English language of that what does the word A mean in the term a notice to appear? Justice Neil Gorsts wrote the majority opinion and had telegraphed in oral arguments that
it means one notice. I would have thought the government might have taken the hint from an ah Justice majority in per a notice of appeal means what it seems to me. Let me ask you this, what if what if I had a law clerk and I said, in my manu, my law cart manual, I want to bench memoranimentalize in the facts law in your proposed disposition, and instead of providing that my lawhart provided three step meadows, each sailing various views of the facts or more on
the law. And then I don't know a couple on proposed disposition, so that the bench memorandum, the answer Justice course which was looking for, was no. Those nine separate memos would not be a bench memorandum joining me is Leon Fresco, a partner at Holland and Knight and the former head of the Office of Immigration Litigation at the Justice Department. Leon tell us how the notice to appear
figures into the process for deportation proceedings. Whenever the government wants to play someone into removal proceeedings, it begins by giving them a piece of paper, and that piece of paper is called the notice to appear. That's the form that looks the same every single time. You can Google
it and see it online. And that notice to appear is supposed to have a date and time and location and there's actually little black bomb the form wherein you fill out the date and time and location of the area.
So in this case, the notice, like an honestly hundreds of thousands of other cases, did not have that date and time and location where to appear at the immigration court hearing because what often happens in these cases is when the government apprehends someone, especially in the southern border, it doesn't have time to figure out where the hearing is going to be at what they've designed to be at,
so it just places to be announced. C B A on the notice to appear, and then you're supposed to get some notice later that tells you, Okay, you moved to Los Angeles or you moved to New York. Here is when you're hearing is going to be And so that's what's been usually happening, but that practice was challenged in this case. So in this case, Augusta Nisha Vez, a Guatemalan immigrant who came to the US illegally in two thousand five, received his first notice to appear at
a deportation here in eight years later. Explain why the timing is so important here, Well, so here is the issue. So this is about a very small sliver of cases, which are called cancelation of removal cases. And in order to be eligible for cancelation of removal, you have to be someone who's been in the United States for ten
years before you were placed into removal proceedings. And during those ten years you have to have basically had a qualifying relative that now is the reason why your removal
should be canceled. So you've given birth to a US citizen or you married a US citizen, and in those situations, if you can prove that your removal will cause extreme and unusual hardship, but usually because that that relative has some major medical issue or something like that, and if you were to leave, they would have totally someone not able to defend their interests and so they probably die. If you left, you could get this relief called cancelation
of removal. And so the question in this case is, well, how do you prove that you have been in the United States for ten years before your removal proceedings started? And so for people who never were even placed at the removal proceedings for ten years, that's easy enough. But for someone who got a notice that didn't tell them
what the date and time of the hearing? One could that notice then stop the clock so to seek meaning you were properly placed in removal proceedings before you had established that you lived in the United States for ten years, and what the court rook is. The answer that question is no. The only way to stop the clock is to serve that document, the notice to appear in the proper way, filling in all the blames with the data
and time and location of the hearing. And the focus in the decision was on the article A in the phrase a notice to appear correct meaning the question was in this case, did the ten year period that needed to take place before you were placed at removal proceedings stop the first time you were given any notice, even if it wasn't a complete notice, or did it need to be a complete notice to appear with everything that's
required in the notice to appear? And what Justice Gorson said is because it said a quote notice to appear, that means has to be in one document, one notice to appear that has all of the items to it. It could be that you got this one document, a notice to appear, and that document says TB A to be abound, and then you get another piece of paper later that's not the form called the notice to appear that tells you, hey, you're hearing is on October fourth
one at the Houston Court House. That's not gonna work. You actually have to get the document from notice to appear. That's why it says a quote notice to appear. And only if you get that document with everything in it that is required by law, have you been properly placed into removal proceedings such that's at that moment we stopped counting whether you've been in the US for ten years
or not justice. Course, such wrote that the dispute may seem semantic since the gentlystices are basing the decision on the meaning of one word, isn't it semantic? Well, it's semantic in terms of how you define an article in a statute. But in real life, this is now going to mean hundreds of thousands of individuals who have US citizen children or got married, but they can't change their status because people think when you get married, you can
change your status. But that's only true of you overstayed the visa, not true if you entered illegally by crossing the border. So for all the people who entered illegally by crossing the border and got married to a US citizen, or for all of the people who have had U s citizens children since they acquired illegal status in the United States, for any of those people, they can now move to reopen their case and apply for cancelation of removal,
and that will actually have two different benefits. One, they might actually get cancelation of removal, although that's unlikely because there's an annual cap of four thousand and there's a huge line already, so it's unlikely that that will happen. But what's more likely to happen is that by reopening their removal proceeding, they will no longer have a removal
order against them, which means they're back to normal. And so what could then happen, especially for the people whose children will have turned twenty one maybe during the Biden administration, is that once goes to older in one, they can apply for green cards for their parents and the parrots doesn't have a removal order against them. So this is actually potentially going to lead to the regularization of the status of at least a few thousand people and maybe
tens of thousands of people. Let's talk about the lineup justice course which wrote the majority opinion. The majority also included Justices Clarence Thomas, Stephen Bryer, Sonya Sotomayor, Elena Kaig and Amy Coney Barrett. The descent was written by Justice Brett Kavanaugh, joined by Chief Justice John Roberts and Samuel Alito. How do you account for those alliances? I think if you're a textual is there's no way you could have
ruled gets what the ruling was in this case. It literally says a notice to appear, and it says in the stattoo what the notice to appear has to had. The problem is, if you're sort of a practical policy person, you might say, well, my lord, this point beheaded sort of conclusion is going to drive us to a point
where what is the government's supposed to do. There's no way it can know when the hearing is going to be when it first apprehends people, and so this is not practical, and so we can't interp for laws in a way that are not practicable to enforce. But that's not what the Congress intended. The Congress intended that you get a notice to appear, and that notice that tells you where to appear and when is what triggers your
removal proceeding. And so what's the court said is, even if you think this is not practical, if it's reasonable enough to think why Congress would have wanted you to get that in one notice and not in several notices, because if you lose one of the several notices, then you still don't know when you're hearing. Is so that's a practical enough reason why you could say, converse asked for one notice, the case is over. That's it. We don't get into these discussions of well does one make
more sense then the other? The statute clearly reads one notice, and there's a reason why Congress might have all wanted this to be in one notice. So that's the end of the analysis. So let me ask you about the Descent also used textualism, but came to a different decision on how to understand the article A right. The Descent was basically making an argument about that there was no practical way to interpret the statute in the way that
the people who were challenging this we're saying. They first of all, they really were upset that the argument chosen by the majority opinion was not even one that was briefed about this issue of A the letter A meaning singular. They claimed that wasn't even really briefed in the case. This was a decision that Justice Gorsage appeared to just come up with on his own and then was able to rally his five other leagues around getting it. So
that was their first criticism of the decision. But moving forward, what they were really trying to get at is that the A doesn't necessarily being a singular. If you say a manu spirit, a manu sprit comes over courses of time, and so that could be the same thing as the notice to appear, So that there's no reason the aid
necessarily required a singular notice. And so because it's not practical to expect the government at the border to know when and where everybody's hearing was gonna be, why should they have to know that in order to start the removal proceeding? Why should a person get the benefits of these proceedings if the government never served the right documents to which Justice course had said, Well, because that's the
way of the bureaucracy works. People all the time are punished for not filling out the right forms of the right way. So if the government doesn't fill out the right forms in the right way, it should have the same punishments that people get what they don't of the right forms in the right way. So what does it tell you that textualism was used to justify both the
majority and the dissent. There are textualists on both sides of these arguments, and no matter what ethos or governing principle you use, you'll always be able to get to a different outcome. But at the end of the day, the reason you have the amalgamation of justices that you have in this case is because you have both the practical and the fairness arguments and the literal interpretation of the statute argument merged into the same results, which is
the compassionate results of this case. And that's rarely the case, but when it happens, that's why you get a six or three ruling here. So what happens to the guatemal And immigrant in this case now? So now this person can actually reopen their proceedings and try to make the argument that their deportation would harm a U s it is a child because it would lead to extreme an unusual hardship to that U s it is in child.
The question will be will they be early enough in the cap to be able to get one of the four thousand green cards available each year where they have to wait several years, or will they be able to get a green card from their child eventually when the child turns one, so long as the court and basically the Biden administration is willing to hold the proceedings in a bay in until the child turns one, or even administratively closed the proceeding, which you can imagine the Biden
administration doing in many cases. Moving forward, Thanks Leon, that's Leon Fresco of Hollanden Night. Coming up next, the justices will confront the confrontation clause. This is Bloomberg the first Senate here and for President Joe Biden's judicial nominations seemed to go fairly smoothly. The committee heard from five nominees, with Judge Katangi Brown Jackson attracting most of the attention. Joining me is Madison Alder, Bloomberg Law reporter. When did
the White House begin vetting judicial nominees? So we learned from the documents that the nominees who were at the most recent Senate Judiciary Committing hearing submitted that the White House started vetting nominees pretty early on um Katondi Brown Jackson, who is Biden's pick for the DC Circuit and it's kind of thought of as a favorite for potential Supreme Court vacancy, was contacted by the White House on January which is six days after Biden was not gary that
we also have, uh, you know, Candice Jackson Akiblumy, who was one of the nominees that the hearing, the Senate Judiciary Committee hearing on Wednesday. She was contacted by the White House on January eleven and asked about, you know, the potential vacancy the following day. So the White House is really getting started quite early on this, um, you know,
compared to previous administrations. Um. The Trump administration got started fairly early as well with their first Lower Court nominee in most of heart Um, you know, so did Obama. He reached out to his first appeal of Court nominee in January. Biden, as we all know, I had eleven nominees in his first list, so it was kind of a larger group of people in that first group that they were looking at. Explain that how the nomination process works.
Take us through it because some people think that, you know, Biden just looks at the lists and decides who he wants. But it's more complicated than that. So it is more complicated than that. Um. The Biden administration works with senators to um look at nominees for their states, especially in the district court level. And blue slip is is how senators will indicate their support for nominee. It's natural blue
slip of paper in which they indicate their support. That is no longer in place for the fields court nominee as the Republicans did away with that during the Trump administration. UM, but they still have to work with senators for for district court picks and the buying administrations, you know, trying to work with with Democrats right now in the Senate, there's a few vacancies and in red states and purple states as well, so that's that's a big part of
the process. And White House Council dainagrenas on the certain transition as senators of Democratic senators to make sure that they are affording names quickly, and asked senators to send names for already vacant seats by January nineteenth, the day before inauguration, and for any vacancies after that within forty
five days of you know, vacancies. So they're basically asking for people to speed up this process, to get quicker, UM with this process, so that on their end they can you know, do do things um expeditiously as well. And on the White House end, you know, they're they're getting the candidates, they're doing background checks on them, they're interviewing them. Um. Their process, from what I've heard, is a lot of paperwork. So UM, that also takes quite
some time before they can actually formally nominate people. So why is the Biden administration seemingly in this rush to get nominees? They have four years in office? What is the rush? So part of the rush is that, Um, the Senate majority is very slim. Uh. You know, Democrats have the fifty fifty split right now, very very slim margin. Um, the slimness of margins for the majority of the Senate, and mid terms often don't turn out well for for
the party in the White House. So what they're worried about, or you know, what could happen, um, is that the Senate could change hands and getting judicial nominees advanced would become that much harder. If you have a Republican majority in the Senate, they could easily block any of Biden's judicial picks. That happened with President brockle Vama. His judicial nominees did not move forward when Republicans were in control
of the Senate. So I think that's the large part of why the administration would like to move quickly here. So you mentioned the early deadlines that the Biden administration set for the senators. Did all the senators make those deadlines. My colleague and I, Courtney Rosen, who are a White House reporter, we took a look at at this and spoke to the Senate offices and the commissions that they set up to help them that picks before they can
send him over the White House. We spoke to as many people as we could about how they were meeting those and found that some states were having difficulty meeting these deadlines. At least six states are having difficulty. A few states wouldn't tell us if they met the deadlines or not, and then there's they're also is a handful of states that have met these deadlines, and you know a few of those were on the president's first list
of of nominees. But the reasons why some people aren't meeting these deadlines is because the lot of the January mis app during the transition also included some other really key elements the Biden administration is looking for in judicial nominees,
like diversity of experienced, racial and ethnic diversity. They're really looking for candidates who aren't currently represented on the federal courts, and that is challenging for some Senate offices to those for nominees who don't fit the mold of not me they for in the past. They're looking for new people.
And you know, we learned in one state in Massachusetts, Nancy Gartner, who's a former federal judge who chairs the commission there, told us that they couldn't meet the January nightte deadline specifically because they were looking for a more diverse pool. Some of the other reasons include, you know, getting a lot of of applications for for judicial nominations.
In California, they've received over three hundred judicial applications. They have eighteen vacancies in the state at least right now, so they have a massive undertaking um But Senators are told us that they're working as as quickly as the possibly can, and the White House also told us that they understand that Senators are working on this and and and that it does take time to find these nominees. At the first hearings, the focus was on Judge Katangi
Brown Jackson. Tell us about her. So, Katangi Brown Jackson is a judge on the District of DC currently. She has public defense experience, and she was one of the nominees who was at this first Senate Judiciary Committee hearing. She's being talked about as a potential nominee for the Supreme Court. There's an vacancy yet, but she's one of the people that people think Biden would be likely to nominate.
She's nominated to Merritt Garland's seat on the DC Circuit, and the d C Circuit is seen as it's kind of a springboard for Supreme Court nominees. It's considered the second highest court in the land. So if she's named there and liberals are I'm Justice Bryers and maybe stepped down, it would be a quick turnaround if she were nominated that seat. But maybe getting a little ahead of ourselves.
So there was a lot of reculation by conservative activists that Republicans might give Jackson a hard time with tough questions about her record as a judge and reversals by the court she's nominated to sit on. So how did it go? So in large part, Republicans did ask tough questions and they, you know, try to pin the nominees down on how they felt about judicial activism, how they felt about controversial matters of law, but they received relatively
little pushback. There was one offense where Senator Tom Tillis pulled up a clip from NSNBC talking about one of Katanji Brown Jackson's decisions. Thing was written for a broad audience, kind of seeming to make the link Katani Brown Jackson potentially auditioning for the Supreme Court. But that was really the only instance where we had something that was, you know, a little bit more of aggressive exchange between the senators
and phenomenes. Is the opinion that he was referring to the one It evolved from a White House counsel Don McGann, and she said, presidents aren't King's. That was the decision he was referring to. And I should note also in the hearing, Senator Mike Lee of Utah as the Republicans also mentioned that same phrasing and that he's said that in the past before. All four of the nominees at the hearing are people of color. Were there any questions
involving race? There was, So she and her fellow Circuit Court nominee who's nominated to the seventh Circuit were both asked how their race they're both black, how their race would impact their decision making, if at all, by Senator John Cornan of Texas, who is a Republican he was making the link that Democrats were making, you know, a huge deal lot of svertifying the courts, and both of them said that their race would not make an impact
on their decision making. As I mentioned before the hearing, a lot of conservative activists were pointing to this visions that Jackson has made that have been reversed on appeal. And Carrie Severino, who's the president of the Conservative Judicial Crisis Network, told you that she's someone who was a record of being regularly overturned by the d C Circuit. What is her record as far as reversals and did
the Republicans question her about her record? The Republicans really didn't question her about this reversal record, um, even though this is something that I heard beforehand would potentially be something that they would ask her about her record. She has decided about six hundred cases and it was mentioned that the hearing that nine percent of them have not been reversed. So that was something that was maybe anticipated to be a bigger deal than it ended up being.
And the questions she did get about that kind of throwing her to talk about her record were remotely from Democrats. Were you expecting to see a hearing where there was some fireworks and a lot of tough, confrontational questioning. I mean, I think the hearing was definitely different than a lot of people expected it to be, UM in terms of the intensity with which some of the questions were being asked. It did seem that the answers from both nominees satisfied
the senators, roscking them on. On both sides of the aisle, they were congratulated for their nominations. A few of the senators also, Um, you spoke about to Tonty Brown Jackson's experience in the U S Sentencing Commission and applauded her for that. I think it was kind of a docile hearing as far as these hearings go UM, at least in my experience. Thanks Madison. That's Bloomberg Law reporter Madison Alder, and that's it for this edition of the Bloomberg Law Show.
Remember you can always get the latest legal news on a Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and wherever you get your favorite podcasts. I'm June Grosso and you're listening to Bloomberg