BIA Holds That Where A Notice To Appear Fails To Specify The Time Or Place Of A Respondent’s Initial Removal Hearing, The Subsequent Service Of A Notice Of Hearing Specifying This Information Perfects The Notice To Appear And Ends The Accrual Of Physical Presence For Purpose Of Voluntary Departure At The Conclusion Of Removal Proceedings Per INA §240B(b).
On January 26, 2021, the Board of Immigration Appeals (BIA or Board) sustained an appeal by Respondents (mother and son) and remanded the record to the Immigration Judge (IJ) for further proceedings. The female respondent had credibly testified that her mother had paid a smuggler to help her and son enter the U.S. without inspection. Two days after their entry, Respondents were served with notices to appear (NTAs) with the time and place “to be set”. One year and one day later both were served with notice of hearing giving the exact date, time, and place of their first appearance before the IJ where they orally requested voluntary departure at the conclusion of their proceedings.
Citing the U.S. Supreme Court’s decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018), Respondents argued that their NTAs, which omitted the date and time of their hearing, were not “notices to appear” under INA §239(a) and therefore did not end their period of physical presence for purposes of voluntary departure (VD) per INA §240B(b). The IJ held that Pereira was limited to the application of the “stop-time” rule in INA §240A(d)(1), which terminates continuous physical presence for purposes of cancellation of removal under §240A. Finding that the “stop-time” rule does not extend to VD requests under §240B(b), the IJ denied this relief, concluding that Respondents “were not physically present in the United States for a period of at least one year preceding the date they were served with notices to appear.” Alternatively, the IJ denied Respondents’ request for VD as untimely and in the exercise of discretion.
The BIA began its analysis by noting that VD eligibility under §240B(b) requires one to prove, among other things, that he or she had been physically present in the U.S. for at least one year immediately preceding the date with the NTA was served per §239(a). Here, the issue is whether an NTA that fails to specify the time or place of the initial removal hearing, as required by §239(a)(1)(G)(i), can end the accrual of physical presence for purposes of §240B(b)(1)(A). In Pereira, the Supreme Court held that, under the INA, an NTA that fails to specify the time and place of removal hearing does not end the period of continuous physical presence under §240(A)(d)(1). After reviewing the Board’s own post-Pereira case law, the decision held that where an NTA fails to specify the time or place of the initial removal hearing, the subsequent service of a notice of hearing setting forth this information perfects the NTA, satisfies the notice requirements of §239(a), and ends the accrual of physical presence for purposes of voluntary departure at the conclusion of removal proceedings per §240B(b).
Here, Respondents demonstrated that they were, in fact, physically present in the U.S. prior to the service of their notices of hearing so the BIA reversed the IJ’s conclusion that they did not prove the requisite period of physical presence for VD under §240B(b). The Board also held that the IJ had erred in finding that Respondents’ request for VD was untimely as he stated that he had set a deadline for all forms of relief and Respondents requested VD after this deadline; a review of the record showed the IJ did not set such a deadline and his conclusion that Respondents’ VD request was untimely was thus in error.
Lastly, the IJ’s discretionary denial of VD was based on his understanding that the female respondent has paid a smuggler to help her and her son enter the U.S. – but she had credibly testified that her mother paid and arranged for the smuggler. This discretionary analysis was, therefore “premised on a factual error.” As the importance of this error in exercising discretion may depend on Respondents’ knowledge of and involvement in the smuggling scheme, the BIA remanded the record to the IJ for further findings and a new decision on the discretionary granting or denial of VD. Matter of Viera-Garcia And Ordonez-Viera, 28 I&N Dec. 223 (BIA 2021).