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  • Writer's pictureAnastasia Boden

Keeping up with the Court: 1/8/2024

The kids are back in school and the Court is back in session! After a lovely holiday, we're settling into 2024.


On Monday the Court will hear two consolidated cases, Campos-Chaves v. Garland and Garland v. Singh, which will determine what level of notice the government must give before removing a noncitizen that fails to attend their removal hearing. In a nutshell, the government didn’t follow the statutory notice procedure to a T, and so it (and a few circuits) have stretched the phrasing of the statute to excuse the government’s mistake.

Gotta love the first sentence of the petition for certiorari:

But let’s start with the law. A Federal statute allows the government to remove noncitizens that don’t attend their scheduled removal hearings so long as the person has received proper notice. The statute sets out various notice requirements, including that it comes in the form of a single document that sets forth important information about the hearing, like the time and date. If the time and date change, the government may send out a second, revised notice.

Here, the government sent out a notice to appear that lacked the time and date. Later, it sent out a second notice of hearing that included the proper information. Not even the government contends that this two-document process, together, constitutes a single notice. Instead, it says that the second notice is adequate because it merely reschedules the first hearing from TBD to a specific date and time.

The First and Ninth Circuits have held that the government can’t change the time and place of a hearing that has not yet been scheduled, and therefore the two-step notice process is defective. The Sixth and Eleventh Circuits have held that the process can, at least under some circumstances, satisfy the statute. And in this case, the Fifth Circuit held that notice was sufficient because at the end of the day, Campos-Chaves did in fact receive the date and time (ie. no harm no foul). In his Petition, Campos-Chaves responded that the Fifth Circuit’s reading has “no basis in the statute. The Court just made it up.”

Or as I like to say:

The Fifth Circuit’s reading might appeal to those who see the government’s infraction as minor, or who believe it caused no harm. After all, at the end of the day, the government provided all of the required information. But the government doesn’t always take so kindly to people who commit minor infractions, even if they cause little harm.

What’s more, before the relevant statute was passed, the government was permitted to use two-step notice. Congress created (and required) one-step notice exactly because it wanted streamline the process and make sure the system was reliable for those threatened with removal. So the more the government stretches the rule to create a multi-notice process, the more it flies in the face of the entire purpose of the statute.

The plaintiff, Moris Esmelis Campos-Chaves, is a citizen of El Salvador who came to the United States in 2005 and now lives here with his wife and teenage citizen children. He works as a gardener, files taxes every year, and has no criminal history. His case has been consolidated with the government’s petition in Garland v. Singh, which presents slightly different facts. Varinder Singh is an Indian citizen who fled political persecution in India due to his support of a Sikh nationalist. Like Campos-Chaves, Singh did not receive notice of the date and time in his initial notice to appear. The government sent him a subsequent letter informing him of the date and time, but then his hearing was changed and it therefore sent him a third notice. In that case, the Ninth Circuit held that because the initial notice lacked the time and date (as required by statute), it was improper and Singh could challenge the removal order, which was issued after he failed to attend the hearing.

Later on Monday, the Court will hear FBI v. Fikre. No one loves a case involving the way many ways the government plays procedural games to avoid defending laws on the merits more than I do!

Plaintiff Junas Fikre (FICK-ree) is a naturalized US citizen of Eritrean descent. While in Sudan on business, Fickre was told by US government agents that he had been placed on the No Fly List due to his association with a Portland mosque and that he’d be removed from that list if he became informant, which he refused. Later, when he was in the United Arab Emirates, he was tortured and interrogated, allegedly at the U.S. government’s request. He then became stranded for several years due to his placement on the No Fly List. Eventually he made his way back to the United States and challenged his inclusion on the No Fly List and in the Terrorist Screening Database. Initially, the government said it would not remove him from the list, but about a year into litigation, it inexplicably removed him and sought to have his claims dismissed. The district court then dismissed his No Fly List claims as moot.

The Ninth Circuit reversed based on the voluntary cessation doctrine. Under that long-standing rule, parties can’t just cease conduct to get out of a lawsuit, since there’s a possibility they’ll just resume the conduct after the case is dismissed. Instead, a party claiming mootness based on voluntary cessation bears a “heavy burden” of “making it ‘absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.’” The Ninth Circuit ruled that rather than simply removing him, the FBI must demonstrate that it won’t put him on the No Fly List again.

Back at the district court, the FBI submitted a declaration saying it wouldn’t put Fikre back on the No Fly List based on currently available information, but that it would not renounce having put him on in the first place. The district court again dismissed.

The Ninth Circuit then reversed a second time, reiterating that the government has to make clear the allegedly wrongful behavior won’t happen again. Here, the FBI removed Fikre from the list but didn’t say why, did not renounce putting him on, and didn’t demonstrate that it wouldn’t put him back on for the same reason it did initially if Fikre were to engage in the same (unknown) behavior that got him put on in the first place. The FBI appealed, and now the Supreme Court must decide whether the FBI’s actions satisfy the voluntary cessation doctrine.

One of the most interesting aspects of the case is the government’s contention that the Court should assume that its motives are benign and that it’s not ceasing its conduct for strategic reasons. In other words, the government should enjoy a presumption of good faith in voluntary cessation cases that lessens its burden.

I co-authored an amicus brief on behalf of Cato scholar Patrick Eddington that argues that there’s no reason to give the government a special benefit of the doubt. The Constitution’s separation of powers means that courts must meaningfully act as a check on other branches, not rotely defer to or make excuses for them. The brief also highlights several cases where the government has, in fact, tried to pick off plaintiffs or strategically moot cases, which belies the government’s assertion that it’s entitled to a special presumption of good faith. The government should be held to the same standard as everybody else, and courts should not rely on its mere promise, alone.

Me, shaking my head given my own experience suing the government and enduring strategic maneuvering by government attorneys.


On Tuesday, the Court will hear a case being litigated by my friends and former colleagues (and Elizabeth’s current colleagues) at Pacific Legal Foundation: Sheetz v. County of El Dorado.

In 2016, George Sheetz applied to the County of El Dorado to build a manufactured house. Pursuant to the county’s legislation, it demanded $23,420 as a condition of granting the permit to finance unrelated traffic road improvements.

In two landmark property cases Nolan v. California Coastal Commission and Dolan v. City of Tigard, the Supreme Court affirmed that the government condition may condition a person’s use of their property on that person offsetting harms that the use will create. But its measures have to actually be aimed at offsetting those harms, otherwise, in the words of Justice Scalia, it’s engaged in “out and out… extortion.”

The County of El Dorado, however, made no determination that Sheetz’s project bore an essential nexus or rough proportionality to the exaction, as required by Nolan and Dolan. Instead, its demand was based solely on the zone and the type of project. So Sheetz challenged the permit requirement on the theory that it’s an unconstitutional exaction.

The trial court held that generally applicable legislative exactions (as opposed to case-by-case, or “administrative” exactions) are immune from Nollan/Dolan review, and the Court of Appeals affirmed. Both courts distinguished between legislative and administrative exactions on the premise that generally applicable laws are less subject to abuse, since they affect the public broadly and are mandatory rather than discretionary. Now the Supreme Court must decide whether there is, indeed, any such exception to Nolan and Dolan and the unconstitutional conditions doctrine as it applies to use of one’s property.

Cato wrote an amicus brief arguing that as a matter of constitutional text and case law, there’s no basis for distinguishing between legislative and administrative exactions. The founders were skeptical of government action, including generally applicable laws. Thomas Jefferson called confidence in officials “the parent of despotism,” and said constitutional protections are instead born of “jealousy.” Legislative exactions must therefore be subject to the same restraints as administrative ones.

After Sheetz, the Court will hear United States Trustee v. John Q. Hommons Fall 2006, which concerns the proper remedy for fees that were paid to United States bankruptcy trustees under a fee schedule that was later found unconstitutional. I’m going to leave any further explanation of that one to the bankruptcy attorneys. Any intrepid bankruptcy attorney want to write it up for us?


Finally, on Wednesday, the Court will hear Smith v. Arizona, involving the scope of the Sixth Amendment’s Confrontation Clause. That clause requires that the accused be permitted to confront witnesses against them in court.

In 2011, the Supreme Court held that defendants have a right under the Sixth Amendment to confront a forensic analyst when that analysts’ certifications are introduced at trial, and that right is not satisfied if they are permitted to cross-examine a substitute expert instead. Now the Court must determine whether the Sixth Amendment is satisfied where the prosecution presents testimony by an expert who relies on the statements of a non-testifying forensic analyst so long as the expert offers an independent opinion, the analyst’s statements are not offered for their truth but instead to explain the expert’s opinion, and the defendant did not seek to subpoena the analyst.

As it happens, I recently discussed a few of these cases and others on Bloomberg’s Cases or Controversies with Kimberly Robinson and Lydia Wheeler. You can listen here.

I’ll be back later this week with a recap of oral arguments. Have a great week, and may you keep your New Year resolutions than I’ve kept mine!








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