BIA Holds That Its Prior Holding In Matter Of Fernandes, 28 I&N Dec. 605 (BIA 2022), That An Objection To A Noncompliant Notice To Appear Will Generally Be Considered Timely If Raised Prior To The Close Of Pleadings Is Not A Change In Law, And Thus Matter Of Fernandes Applies Retroactively.

BIA Holds That Its Prior Holding In Matter Of Fernandes, 28 I&N Dec. 605 (BIA 2022), That An Objection To A Noncompliant Notice To Appear Will Generally Be Considered Timely If Raised Prior To The Close Of Pleadings Is Not A Change In Law, And Thus Matter Of Fernandes Applies Retroactively.

On November 19, 2024, the Board of Immigration Appeals (BIA or Board) sustained a DHS appeal of a decision by the Immigration Judge (IJ) to grant Respondents’ motion to terminate proceedings due to a noncompliant Notice to Appear (NTA); DHS claimed error in the IJ’s failure to apply Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022). The record was ordered remanded.

Respondents, a mother and minor child, were served with NTAs that did not include the date, place and time of their first hearing. The immigration court then issued hearing notices, setting the initial hearing. Respondents appeared with counsel, conceded proper service, admitted the factual allegations and conceded removability without objecting to the sufficiency of their NTAs. The IJ sustained the charge of removability and continued proceedings for Respondents to file applications for relief, which they did.

Nearly six years after receiving their NTAs and more than five years after their pleadings were taken, Respondents filed a motion to terminate based on their insufficient NTAs, per INA §239(a)(1)(G)(i) which requires that the date and place information be contained in the notice. They acknowledged the holding of Matter of Fernandes regarding the timeliness of an objection to a noncompliant NTA but contended “they had not forfeited the enforcement of the claim process rule because the rule did not exist at the time of their pleadings.” DHS opposed the motion.

The IJ concluded that DHS had violated §239(a)(1)(G) and held that the holding in Fernandes could not be applied retroactively, finding that Respondents’ objection was timely in that it had been made shortly after the U.S. Supreme Court’s decision in Niz-Chavez v. Garland, 593 U.S. 155(2021); the IJ concluded that Niz-Chavez constituted a change in law and terminated proceedings.

The BIA began its discussion by explaining that §239(a)(1) provides that written notice, i.e., an NTA, must be served on one in removal proceedings, specifying (among other things) the time and place that proceedings will be held. In Pereira v. Sessions, 585 U.S. 198 (2018) and Niz-Chavez, the Supreme Court ruled that an NTA that does not comply with this requirement would not trigger the “stop-time” rule of INA §240A(d)(1)(A). The Court stated that in so holding, it was relying on the plain statutory language of §§239(a) and 240A(d)(1)(A).

Following Pereira and Niz-Chavez, the Board – consistent with all courts of appeal that had spoken to the issue – held that §239(a)(1) is not a “jurisdictional requirement” and that a noncompliant NTA did not affect the immigration court’s jurisdiction over proceedings. This was reaffirmed in Fernandes.

Similarly, following Pereira, courts of appeal confirmed that the time and place requirement in an NTA is a claim-processing rule. Such rules “seek to promote the orderly process of litigation by requiring that the parties taken certain procedural steps at specified times,” but do no implicate the jurisdiction of a court and are subject to waiver and forfeiture unless raised in a timely manner.

In Fernandes, the BIA addressed this issued and found that §239(a)(1) is a claim processing rule. That decision also held that if a respondent does not raise a timely objection to a defective NTA, such objection is waived or forfeited. The Board held that a claim-processing rule objection is generally timely if raised prior to the closing of pleadings before an IJ; this was found to be “a useful guideline regarding…timeliness.”

The opinion next addressed retroactivity, explaining that, generally, agencies and courts may announce new rules through adjudication and apply them retroactively. Judicial and administrative decisions, stated the Board, unlike statues, are usually retroactively in application, as they simply say “what the law is.” However, some agency decisions announce new rules that substantially change the law and it may be unfair to apply the new rules retroactively. Under those circumstances, the rules only apply prospectively.

The BIA then reiterated its two-part test for determining whether a published Board decision applies retroactively. First, the BIA considers whether the holding is a change in law for purposes of retroactivity. If so, it applies the “multi-factor test first set forth in Retail, Wholesale And Department Store Union v. NLRB, 466 F.3d 380, 390 (D.C. Cir. 1972)” to determine whether retroactive application would be unfair.

Further, continued the decision, published Board or court decisions “are generally intended to provide guidance for parties in litigation and lower tribunals.” As such, a published BIA decision that interprets a previously unclear statute is not a change in law for retroactivity purposes. Treating precedent as only prospective, warned the opinion, runs contrary to the principal that judicial or administrative decisions simply say “what the law is” and are thus generally retroactive. The test for whether a published decision constitutes a change in law and therefore triggers a retroactivity analysis is whether the BIA “ ‘consciously overrules or otherwise alters its own rule or regulation’ or ‘expressly considers and openly departs from a circuit court decision.’”

Applying the “change in law” test, the Board next concluded that Fernandes does not constitute a change in the law requiring a retroactivity analysis. Initially, that case’s holding that the time and place requirement is a claim processing rule was found to be consistent with the decision by both the BIA and courts of appeal. Similarly, the Fernandes determination that an objection to a noncompliant NTA is waived or forfeited if not timely raised “is not a change in law because it was based on prior Board, courts of appeals, and Supreme Court precedents regarding claim-processing rules.”

The decision then addressed the timeliness issues, noting that Fernandes had provided a guideline as to when a claim-processing rule objection is timely; in doing so, concluded the opinion, it had “clarified the law by resolving an issue about which there was no clear guidance.” Further, the BIA had found no court decisions disagreeing with its retroactivity/change in law finding and, in fact, the Fifth Circuit recently published a decision holding that the Board had correctly denied a motion to remand based on Fernandes, where the respondents had not objected to the NTA before the close of pleadings.

The BIA next concluded that §239(a)(1) is, and always has been, a claim-processing rule, it just had not had an occasion to address when a relevant objection would be considered timely or how the rule is to be applied in proceedings until Fernandes. The IJ had relied on a prior Board precedent, where respondents had not objected to the NTAs until the day of the individual merits hearing and the decision had concluded, in a single line at the end, that the challenges were timely. However, explained the opinion, the issues there was whether a deficient NTA deprived the immigration court of subject matter jurisdiction; it did not, and the Board had made the finding “without discussion or analysis, and it was neither part of the holding in that case nor necessary to the result.” As such, the “brief mention” of timeliness was dicta and not a rule from which Fernandes departed.

Respondents also argued that applying Fernandes retroactively was contrary to the BIA rule that retroactively of an agency rule “must be balanced against the mischief of producing a result which is contrary to statutory design or to legal and equitable principals,” claiming that when pleadings were taken, any objection to missing data in the NTAs would have been futile or frivolous under settled law. As a result, contended Respondents, retroactive application of Fernandes here would be inequitable. Yet, the Board was not persuaded that the issue was “truly novel” and there was no reasonable basis in law for having raised the claim-processing rule objection. That the argument may have been unsuccessful at the time, stated the decision, did not excuse the lack of a timely challenge to the NTAs.

Thus, found the BIA, the Fernandes holding regarding the timeliness of an objection to an insufficient NTA was not a change in law for purposes of retroactivity and the Board did not need to apply the multi-factor analysis discussed above; the holding was applied retroactively.

As to the timeliness of Respondents’ claim-processing rule objection, the opinion found that the IJ had erred by concluding the motion to terminate was timely because it was filed following the Niz-Chavez decision. First, the Supreme Court decisions in Pereira  and Niz-Chavez a)did not address the claim-processing rule aspect of §239(a)(1), b) did not create a claim-processing rule, and c)did not establish a “change in law” for claim-processing rules. The cases merely discussed the application of §240A(d)(1)(A)’s stop-time rule and were unconcerned with the immigration court’s jurisdiction or the claim-processing rule of §239(a)(1)(G)(i); they “did not affect the timeliness of the claim-processing rule objection.”

Second, Respondents’ motion raising the objection was filed 18 months after Niz-Chavez and, even before that case was issued, circuit courts had been addressing the claim-processing rule aspect of §239(a)(1)(G)(i). “Multiple” courts, stated the BIA, had mentioned that arguments regarding defective NTAs were available based on the plain statutory language, “even before the Supreme Court’s 2018 decision in Pereira” Respondents’ objection was therefore untimely and they had thus waived the chance to “challenge this issue.”

Lastly, Respondents contended that Fernandes should not be applied retroactively, due to issues of fairness and due process. Yet, as neither Niz-Chavez nor Fernandes established a change in law in terms of the timeliness of the instant claim-processing rule objection, the retroactive application of Fernandes “is entirely consistent with sound principles of fairness and due process.”

Because Respondents did not object to the data missing from the NTA before the close of pleadings, and did not otherwise prove their objection was timely, they had forfeited that objection. The DHS appeal was sustained, the IJ’s decision vacated, and the matter remanded for further proceedings. Matter of Larios-Gutierrez de Pablo and Pablo-Larios, 28 I&N Dec. 868 (BIA 2024).