Taking the "consequences Under Section 240(b)(5)" of Failing to Appear at Removal Proceedings Seriously

Taking the "Consequences Under Section 240(b)(5)" of Failing to Appear at Removal Proceedings Seriously

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The Immigration and Nationality Act's Lost Appellate Rights Warnings

Christopher D. Boom ^*

Abstract: Throughout the 25 years since the INA's current notice and failure-to-appear provisions took effect, the government has notified noncitizens of removal proceedings using forms that make no mention of the limits that INA § 240(b)(5)(C) and (D) impose on the appellate rights of absentees ordered removed. Those forms have thus not satisfied warnings of the "consequences under section 240(b)(5)" of failing to appear as required by INA § 239(a)(1) and (2). Not only does it follow from INA § 239(a)(1) and (2)'s plain language that notices in removal proceedings must warn noncitizens that their appellate rights may be limited as § 240(b)(5)(C) and (D) provide by failing to appear, this reading is confirmed by the canons of construction and by the history and express purpose of the INA's notice and failure-to-appear provisions.

Section 239(a)(1) of the Immigration and Nationality Act (INA) requires noncitizens in removal proceedings to be given written notice specifying "[t]he consequences under section 240(b)(5) of the failure, except under exceptional circumstances, to appear at such proceedings." ¹ And § 239(a)(2) similarly requires notices of changes or postponements to the time or place of their proceedings to specify "the consequences under section 240(b)(5) of failing, except under exceptional circumstances, to attend such proceedings." ²

In turn, § 240(b)(5) provides in relevant part as follows:

Consequences of Failure to Appear.—
(A) In general.—Any alien who, after written notice required under paragraph (1) or (2) of section 239(a) has been provided to the alien or the alien's counsel of record, does not attend a proceeding under this section, shall be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable (as defined in subsection (e)(2)). The written notice by the Attorney General shall be considered sufficient for purposes of this

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subparagraph if provided at the most recent address provided under section 239(a)(1)(F).
... (C) Rescission of order.—Such an order may be rescinded only—

(i) upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (e)(1)), or
(ii) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) or (2) of section 239(a) or the alien demonstrates that the alien was in Federal or State custody and the failure to appear was through no fault of the alien.

(D) Effect on judicial review.—Any petition for review under section 242 of an order entered in absentia under this paragraph shall (except in cases described in section 242(b)(5)) be confined to (i) the validity of the notice provided to the alien, (ii) the reasons for the alien's not attending the proceeding, and (iii) whether or not the alien is removable. ³

Since these provisions first took effect, the government has always notified noncitizens of removal proceedings using forms that warn them that failing to appear at their proceedings can result in them being ordered removed in their absence. ⁴ But those forms have never warned noncitizens that a failure to appear can also result in their appellate rights being limited in any of the ways § 240(b)(5)(C) and (D) provide. ⁵ Among other things, those forms have thus not put noncitizens on notice that a failure to appear can result in the forfeiture of their rights to rescind a removal order through a direct appeal to the Board of Immigration Appeals (BIA), ⁶ to rescind an order through a motion to reopen presenting evidence of eligibility for relief from removal, ⁷ or to obtain judicial review of the BIA's refusal to reopen proceedings based on such evidence. ⁸

Throughout the four years before Congress enacted the above provisions, however, the government used a form that explicitly warned noncitizens that they risked losing rights to rescission and review by failing to appear at pro-ceedings. ⁹ Specifically, the form warned them that:

If you are ordered deported in your absence, you cannot seek to have that order rescinded except that: (a) you may file a motion to reopen the hearing within 180 days after the date of the order if you are able to show that your failure to appear was because of exceptional circumstances, or (b) you may file a motion to reopen at any time after the date of the order if you can show that you did not receive

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written notice of your hearing and you had provided your address and telephone number (or any changes of your address or telephone number) as required, or that you were incarcerated and did not appear at your hearing through no fault of your own. If you choose to seek judicial review of a deportation order entered in your absence, you must file the petition for review within 60 days (30 days if you are convicted of an aggravated felony) after the date of the final order, and the review shall be confined to the issues of validity of the notice provided to you, the reasons for your failure to appear at your hearing, and whether the government established that you are deportable. ¹⁰

At that time, former INA § 242B(a)(2) required notices to specify the "consequences under subsection (c)" of failures to appear at deportation proceedings, and imposed limits on the rescission and review of absentees' deportation orders under § 242B(c)(3) and (4), respectively. ¹¹ And though § 242B(c) differed from current § 240(b)(5) in certain respects, ¹² the BIA has nonetheless recognized that § 240(b)(5)'s provisions are "nearly identical" to former § 242B(c)'s. ¹³

What is more, some commentators have characterized the loss of rights to rescission and review under former § 242B(c)(3) and (4) as being among the "consequences" of failing to appear under former § 242B(c). For instance, one scholarly article on former § 242B's failure-to-appear provisions noted that the "limitations on rescission" and "limits on judicial review" were among the "three . . . consequences" of failing to appear under § 242B(c). ¹⁴ And one circuit has noted in a nonprecedential opinion that "[t]he consequences that had to be included in [a] notice" under § 242B(a)(2) included the "limitations upon when and how [an] in absentia order may be rescinded." ¹⁵

Likewise, this article argues that a notice must warn its recipient of § 240(b)(5)(C) and (D)'s limits on appellate rights for it to satisfy § 239(a)(1) or (2). ¹⁶ Because they are not imposed on noncitizens but for a failure to appear, those limits fall within § 239(a)(1) and (2)'s plain language. ¹⁷ And the canons of construction leave no reasonable room for doubt that this was purposeful. After all, Congress could have easily clarified that it did not intend to require warnings of the § 240(b)(5)(C) and (D) limits by having § 239(a)(1) and (2) narrowly reference subparagraph (A) of § 240(b)(5) alone rather than broadly reference paragraph (5) as a whole. On the contrary, Congress instead signaled that was indeed what it intended by not only giving § 240(b)(5) in its entirety the heading "Consequences of failure to appear," but also by using a synonym for "consequence" in subparagraph (D)'s heading. And that Congress acted purposefully in requiring notices to warn noncitizens of the § 240(b)(5)(C) and (D) limits is also clear from the history of the INA's notice and failure-to-appear provisions. For, among other things, they derive in part from a proposed amendment to the INA intended to implement recommendations in a report noting that absentees did not "suffer . . . such adverse consequences as loss of

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appeal rights." ¹⁸ Finally, requiring notices to warn noncitizens that they can lose appellate rights by failing to appear advances Congress's stated purpose in enacting the INA's notice and failure-to-appear provisions of ensuring that noncitizens attend their proceedings. In turn, because the government's forms have not warned noncitizens of the § 240(b)(5)(C) and (D) limits, those forms have not satisfied § 239(a)(1) or (2).

The Plain Language

Start with § 239(a)(1) and (2)'s plain language. Again, both § 239(a)(1) and (2) require notices to "specify[]" the "consequences under section 240(b)(5)" of failing "except under exceptional circumstances" to appear at removal proceedings. And § 240(b)(5)(C) and (D) are "under section 240(b)(5)." So, if a person of ordinary competence in the English language would describe the limits on appellate relief imposed by § 240(b)(5)(C) and (D) as "consequences" of failures "except under exceptional circumstances" to appear, the plain language of § 239(a)(1) and (2) requires notices of removal proceedings to specify those limits.

Meanwhile, that an ordinary reader would read § 239(a)(1) and (2)'s plain language to encompass the § 240(b)(5)(C) and (D) limits on appellate relief fall is supported in the first place by the fact that this coincides with how some commentators have read their predecessors. ¹⁹ So, too, is this supported by the fact that their predecessors originated in response to an agency report that expressly characterized the "loss of appeal rights" as a "consequence[]" of failing to appear. ²⁰ For even on a strict textualist approach to statutory construction, consideration of legislative history is appropriate where, as here, it is considered only for the narrow purpose of "showing that a particular word . . . is capable of bearing a particular meaning." ²¹

More importantly, this conclusion also straightforwardly follows from how the word "consequence" is ordinarily used. As Justice Antonin...