BIA Holds That The Time And Place Requirement In INA §239(a)(1) Is A Crime-Processing Rule, Not A Jurisdictional Requirement. An Objection To A Noncompliant Notice To Appear (NTA) Will Generally Be Considered Timely If It Is Raised Prior To The Closing Of Pleadings Before The Immigration Judge. A Respondent Who Has Made A Timely Objection To A Noncompliant NTA Is Not Generally Required To Show That He Or She Was Prejudiced By Missing Time Or Place Information. An IJ May Allow DHS To Remedy A Noncompliant NTA Without Ordering The Termination Of Removal Proceedings.
On August 4, 2022 the Board of Immigration Appeals (BIA or Board), with one dissent, ordered the record remanded to the Immigration Judge (IJ), in a case where Respondent, a lawful permanent resident, had been personally served with a notice to appear (NTA). The NTA ordered Respondent to appear in Immigration Court at a date and time “to be set”; it was subsequently filed with the Court, which then mailed Respondent a notice of hearing informing him of the date, time, and place of his initial hearing. He was detained throughout the removal proceedings.
Respondent appeared without counsel at his first three hearings and was given a continuance each time to obtain an attorney. At his fourth hearing, he appeared with counsel, who requested and received an approximately 7-week continuance. Prior to the next hearing, Respondent filed a written pleading objecting to the adequacy of the NTA; at the next hearing he expressly refused to concede proper service of the NTA and requested an opportunity to submit a motion to dismiss because the NTA did not specify the date and time of his initial hearing. The IJ did not address the NTA issue, but found Respondent removable as charged and allowed him to submit a written brief. Less than three weeks later, Respondent filed a “Motion to Quash Service of Process for the Respondent’s Notice to Appear and Dismiss Removal Proceedings”, arguing that the NTA was defective because it lacked required information. DHS opposed the motion. The IJ denied it and ordered Respondent removed. This appeal followed.
Beginning, its analysis, the BIA first found that INA §239(a)(1) is not a jurisdictional rule, but a non-jurisdictional claim-processing rule. Adhering to its view in Matter of Arambula-Bravo, 28 I&N Dec.388 (BIA 2021), the decision concluded that the time and place requirement in §239 (a)(1) is not jurisdictional because “Congress has not made the Immigration Courts’ jurisdiction dependent upon the content of” an NTA. Further a mandatory claim-processing rule is different from a jurisdictional requirement in 2 ways: 1) because the rule is not jurisdictional, it does not deprive the adjudicating body of authority or power and 2) the requirements in such rules are subject to waiver and forfeiture, unless timely and properly raised by the affected party.
The Board next agreed that Respondent had timely objected to the noncompliant NTA, following Fifth Circuit precedent in Pierre-Paul v. Barr, 930 F. 3d684 (5th Cir 2019), abrogated on other grounds by Niz-Chavez v Garland 141 S.Ct.1474 (2021); the Fifth Circuit there had already provided guidance on when an objection to a noncompliant NTA is considered timely. Accordingly, requiring respondents to raise an objection before the closing of pleadings – like Respondent here – will not force them (especially unrepresented respondents) to raise an objection at their initial appearance before the IJ “and would allow them an adequate opportunity to obtain counsel.”
The BIA also agreed that Respondent was not required to show prejudice. §239(a)(1) does not require it and the Appellate Immigration Judges were “unwilling to impose such a requirement.” Therefore, they concluded that where a respondent has made a timely objection to an NTA missing time or place information, the respondent is not generally required to show that he or she was prejudiced “by this missing information.”
Finally, the Board held that in IJ may allow DHS to remedy a noncompliant NTA without terminating proceedings, contrary to Respondent’s contention. The opinion found that, as to jurisdictional rules, an IJ may exercise judgement and discretion to enforce the rule to promote its underlying purpose. Additionally, the claim-processing rule in §239(a)(1) “does not explicitly provide that termination is the sole consequence” for a violation of that rule. In fact, the U.S. Supreme Court’s jurisprudence on this issue suggests that “where the claim-processing violation stems from a defect in a document that can be corrected, adjudicators may allow the violating party to remedy the defect without dismissing proceedings.”
At the end of the majority opinion, the BIA noted the dissent’s position that, to the extent a claim-processing rule violation has occurred, prejudice must be shown and there was none here; in the majority’s view, when such a rule violation occurs, prejudice need not be shown but a remedy may be allowed as “the nature of the violation informs the nature of the remedy.”
The appeal was sustained and the IJ’s decision vacated. The record was also remanded for further proceedings. Matter of Fernandes, 28 I&N Dec.605 (BIA 2022).