The federal appeals court based in Denver has rebuked the government for relying on a non-existent rule to proceed with its deportation of a woman from Colorado and for disregarding the U.S. Supreme Court’s recent interpretation of immigration law.

Authorities deported Mayra Veronica Estrada-Cardona in 2020 from Colorado after she spent more than 17 years in the U.S. Although the government may choose not to deport someone who has been in the country continuously for 10 years, immigration authorities believed Estrada-Cardona’s clock had stopped when a judge ordered her deported in 2010 — after approximately seven years in the U.S.

She then filed a petition with the U.S. Court of Appeals for the 10th Circuit, arguing Congress had only outlined two scenarios for halting the accrual of time, and an immigration judge’s order was not one of them.

Last week, a three-judge panel of the 10th Circuit agreed with Estrada-Cardona.

“This petition for review represents the latest chapter in the government’s ongoing efforts to dig itself out of a hole it placed itself in,” Senior Judge Bobby R. Baldock wrote in a sharply-worded Aug. 17 opinion.

The section of immigration law under dispute is known as the “stop-time rule.” The U.S. attorney general has the discretion not to deport someone who has been continuously present for 10 years, but there are specific conditions that can stop the clock. One trigger is if a person commits certain crimes, and the other trigger is when the government serves someone with “a notice to appear.”

A written notice of deportation proceedings requires specific pieces of information. By law, it must specify the nature of the proceedings, the alleged legal violations and, relevant to Estrada-Cardona’s case, the “time and place at which the proceedings will be held.”

In 2018, the Supreme Court handed down an 8-1 decision, declaring notices to appear did not trigger the stop-time rule if they were missing the time and place of deportation proceedings. Estrada-Cardona’s case fell into that category, as her notice only indicated proceedings would take place on “a date to be set” and at “a time to be set.”

Following the ruling, the government began using “parking dates” on notices — setting hearing times at midnight or using dates that did not exist, in an attempt to comply with the ruling. The government also sent out supplemental documentation listing the date and time after the initial notices. Some federal circuit courts deemed the practice acceptable.

Then in April 2021, by a 6-3 decision in Niz-Chavez v. Garland, the Supreme Court determined the supplemental notices were not compliant with the law either.

“If the government finds filling out forms a chore, it has good company,” wrote Justice Neil M. Gorsuch, a former 10th Circuit judge, for the majority. “The world is awash in forms, and rarely do agencies afford individuals the same latitude in completing them that the government seeks for itself today.”

At the time of the Niz-Chavez decision, Estrada-Cardona had already been deported. She had arrived in the United States in July 2002 on a tourist visa and did not leave. In May 2009, police pulled her over for a defective headlight and driving without a license. Shortly afterward, her deportation proceedings began.

Her lawyer allegedly failed to appear, and Estrada-Cardona, representing herself, voluntarily agreed to leave the country in 2010. However, she appealed the immigration judge’s order for departure in a process that lasted until 2013. Although she was unsuccessful, she applied for and received a reprieve from deportation for the next four years.

Following the Supreme Court’s first stop-time decision, Estrada-Cardona argued her defective notice to appear meant that her physical presence in the country had not stopped at seven years upon her initial deportation proceedings. Therefore, she contended she was eligible to have her deportation canceled, having been in the U.S. for longer than 10 years.

The Board of Immigration Appeals denied her request, and authorities deported her shortly afterward.

Following the ruling in Niz-Chavez, Estrada-Cardona again appealed. A three-member Board of Immigration Appeals panel decided that, notwithstanding the Supreme Court’s interpretation of the stop-time rule, her continuous presence in the country ended “when the Immigration Judge issued the final administrative order of removal on Aug. 11, 2010.”

Turning to the 10th Circuit, Estrada-Cardona acknowledged the previous version of the immigration law stopped the clock when there was a final deportation order. But Congress changed the law in 1996 to prevent people from prolonging their proceedings to reach the 10-year threshold.

Allowing the government to claim the old procedure still applied would “be a prime example of judicial overreach to attempt by fiat to add completely different, unwritten categories of events that stop time,” wrote Estrada-Cardona’s lawyers.

The U.S. Department of Justice argued to the 10th Circuit panel in May that Congress could not have intended for inadequate notices to appear to compromise the stop-time rule.

“It seems very unfair,” acknowledged Judge Harris L Hartz. But, he continued, “the Supreme Court’s telling us that’s Congress’ job. That’s not the courts’ job to figure out what’s fair.”

Ultimately, the panel’s opinion made clear the government had only itself to blame for enabling immigrants to remain in the country with its failure to provide notices that comply with the law.

“After years of statutory short-circuiting, the government finds itself in the uncomfortable position of being wrong. To stop the clock, all the government had to do was serve an alien with a statutorily compliant notice to appear,” Baldock wrote.

He added sternly, “Instead of accepting its mistake or focusing its energies on Congress (who might be able to bail it out), the government has chosen to ‘continue down the same old path,’ asking us to ignore the clear statutory text in favor of its preferred interpretation.”

Because the Board of Immigration Appeals relied on a non-existent rule to determine Estrada-Cardona was ineligible to remain in the country, the appellate panel returned the case to the board so that members could consider whether to reopen Estrada-Cardona’s appeal based on the correct understanding of the law.

The case is Estrada-Cardona v. Garland.