On January 9, 2020, the Board of Immigration Appeals (BIA or Board) sustained the DHS appeal of an order by an Immigration Judge (IJ) terminating removal proceedings based on defective notices to appear (NTAs). Respondents, mother and son, were served with NTAs that did not specify the time, date, or place of their initial removal hearing. Subsequently, they were issued notices of hearing which set forth the date, time, and place of their initial hearing. On the day of their individual calendar hearing, Respondents moved to terminate proceedings, claiming the court lacked jurisdiction because their NTAs lacked the Immigration Court’s address, citing to 8 C.F.R. §1003.15(b)(6), which states that the address where an NTA will be filed must be included in an NTA. The IJ agreed, finding the Court address to be one of the required items of an NTA per §1003.15(b) and, as the NTAs omitted that information, holding she was without jurisdiction over the proceedings; she granted Respondent’s motion.
On appeal, DHS argued the IJ’s decision is inconsistent with both Matter of Bermudez-Cota, 27 I&N Dec.441 (BIA 2018) and Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) wherein the BIA and, subsequently, the Ninth Circuit Court of Appeals ruled that a defective NTA is remedied by an Immigration Court notice of hearing providing the time, date, and place of the next hearing which is sent to a respondent. In turn, Respondents contend that jurisdiction over the instant proceedings did not vest with the IJ because their NTAs did not 1) give them notice of the Immigration Court’s address where DHS would be filing their NTAs as required by 8 C.F.R. §1003.15(b)(6), or 2) include a certificate showing that they were served with information indicating the Immigration Court where DHS would be filing their NTA per 8 C.F.R. §1003.14(a). Respondents claim the subsequent notices of hearing do not cure these deficiencies.
The Board found the issue to be the consequences of service of an NTA that does not include the court’s address or a certificate of service indicating the court where DHS will file the NTA, e.g., “where the Immigration Court is deprived of subject matter jurisdiction because of a deficient notice to appear.” The BIA held that the pertinent regulation are “claim-processing” or “internal docketing” rules, which do not implicate subject matter jurisdiction and that a deficiency in the NTA can be remedied by providing the missing information in a subsequent notice of hearing.
In its analysis, the opinion first noted that the IJ had relied on the holding in Karingithi to find that she lacked jurisdiction and stated that, subsequent to that decision, the Board had dismissed the argument that a defective NTA deprived an IJ of case jurisdiction, citing to Bermudez-Cota. That decision held that an NTA “that does not specify that time and place of the hearing can be remedied by the service of a subsequent notice of hearing that includes the required information.” Further, the Ninth Circuit had deferred to the BIA’s holding in Bermudez-Cota in its Karingithi opinion but, noted the decision, had not addressed the specific issue raised here: whether a deficient NTA which will subsequently be filed is sufficient to vest jurisdiction in the Immigration Court.
On the jurisdiction question, nothing in 8 C.F.R. §1003.15(b)(6), found the Board, mandates that the court’s address is a jurisdictional requirement or that it cannot be provided subsequent to the NTA’s service on a respondent. This regulation, stated the opinion, must be read in conjunction with 8 C.F.R. §1003.18(b) which provides that an NTA must provide the “time, place, and date of the initial removal hearing, where practicable.” If that data is not in the NTA, concluded the BIA, the court is responsible for scheduling the initial removal hearing and providing notice to the DHS and the respondent of the time, date, and place, i.e., “the regulation anticipates” that when the required information is not in the NTA, “the court can provide notice of that information at a later date.” The decision thus held that a deficient NTA can be “remedied” by a subsequent hearing notice from the court including the missing data. Further, as shown by 8 C.F.R. §1003.14, the “Jurisdiction and commencement of proceedings” rules, the term “jurisdiction” is not limited to subject matter jurisdiction and, informed by administrative law principles “and considering the regulation in context”, the Board found that as the term is used in §1003.14(a), it is a “claim-processing rule,” not one implicating subject matter jurisdiction. As to Respondents’ assertion that their NTAs were also deficient under §1003.14(a) for lacking a certificate showing service on the charged parties which indicates that Immigration Court in which the documents are filed, this sentence – held that BIA – is “best viewed as a claim-processing rule,” one of a number of “internal docketing rules” or procedural or venue provisions. The regulatory history shows the sentence was added in 1992 as one of a series of procedural rules meant to increase efficiency in operations; a lack of compliance with this part of the regulation, standing alone or read with other rules, “does not provide a reason for terminating proceedings.” Accordingly, the DHS appeal was sustained, the IJ’s decision vacated, removal proceedings reinstated and the record remanded for further proceedings. Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745 (BIA 2020).