BIA Holds That A Respondent Who Raises An Objection To Missing Time Or Place Information In A Notice To Appear For The First Time In A Motion To Reopen Has Forfeited That Objection.
On June 24, 2022, the Board of Immigration Appeals (BIA or Board) partially granted a respondent’s motion to reopen, based on Niz–Chavez v. Garland, 141 S. Ct. 1474 (2021), refused to terminate proceedings, but remanded the record to the Immigration Judge (IJ) to consider the noncitizen’s eligibility for voluntary departure.
Respondent applied for admission to the U.S. but lacked valid immigration documents. He was served with a Notice to Appear (NTA) by DHS, which ordered him to appear in Immigration Court on a date and time to be set. He received a subsequent Notice of Hearing with that information and appeared for this and subsequent hearings. He conceded removability and applied for relief but the IJ found Respondent removable and denied his applications for relief. His appeal was dismissed by the BIA and he timely filed this motion to reopen.
In beginning its analysis, the Board stated that the motion is not premised on previously unavailable, material evidence but on the Supreme Court’s Niz–Chavez decision, which Respondent contended represented a change in law warranting the reopening and termination of proceedings. Even though the original NTA did not specify the time and date of the initial hearing, noted the decision, here Niz–Chavez did not represent a change in law warranting termination.
The opinion explained that prior to Respondent’s first hearing, the Fifth Circuit Court of Appeals, in whose jurisdiction this case arises, had held that the regulatory requirement for an NTA is not jurisdictional but is a claim–processing rule; such rules seek to promote the orderly progress of litigation by requiring that the parties “take certain procedural steps at certain specified times.” Further, noted the BIA, an objection based on a mandatory claim-processing rule may be forfeited “if the party asserting the rule waits too long to raise the point.” Accordingly, in Pierre–Paul v. Barr, 930 F. 3d 684 (5th Cir. 2019), abrogated on other grounds by Niz–Chavez, at 1485, the Fifth Circuit held that, in removal proceedings, any alleged defect with the charging document must be “raised properly” and can be forfeited if a respondent waits too long to raise it.
Additionally, Pierre–Paul relied on Supreme Court jurisprudence “distinguishing claim–processing rules from jurisdictional requirements.” This does not require a separate examination of prejudice once an objection to a claim-processing rule is deemed to be untimely and forfeited. Even if one is prejudiced by a claim-processing violation, any objection would be invalid if untimely.
The Board who announced that it would apply the Pierre–Paul approach to motions to reopen filed in all jurisdictions but the Seventh Circuit. As applied in the instant matter, the decision concluded that Respondent, who raised his objection to the missing information in the NTA for the 1st time in his motion to reopen, waited too long to raise the issue and this forfeited his objection. As a result, the BIA would not separately consider whether the missing time and date information prejudiced him. Further, stated the opinion, Niz–Chavez did not reference the Supreme Court’s jurisprudence regarding claim–processing rules on which Pierre–Paul relied, nor did it address whether a respondent may raise a valid objection to missing time or place data on an NTA for the first time in a motion to reopen. Therefore, Niz–Chavez did not represent a change in law that warrants reopening and terminating the instant removal proceedings.
However, the Board did agree with Respondent that, under Niz Chavez, his NTA did not preclude him from accruing the requisite period of physical presence for purpose of voluntary departure (VD) at the conclusion of removal proceedings, per INA §240B(b). Citing to Matter of M-F-O-, 28 I & N Dec. 408 (BIA 2021), the decision noted that it had previously held that, in light of Niz–Chavez, an NTA lacking time or place information does not stop a VD applicant from accruing physical presence under INA § 240 B(b)(1)(A). Thus, per M-F-O-, the BIA granted Respondent’s timely motion to reopen and remand for the IJ to consider his VD eligibility under § 240B(b). The motion to reopen was granted, the motion to terminate denied, and the record remanded for further consideration of Respondent’s eligibility for VD at the conclusion of proceedings per §240B(b) and any other issues the IJ deems appropriate (a footnote here set forth that, effective June 7, 2022 to December 7, 2023, DHS had designated Cameroon, Respondent’s country of nationality, for TPS). Matter of Nchifor, 28 I&N Dec. 585 (BIA 2022).
