The First Circuit recently overturned the Board of Immigration Appeals, or BIA, in a decision regarding the legal sufficiency of a Notice to Appear, or NTA. Laparra-Deleon v. Garland --- F.4th ----, 2022 WL 16706940 (1st Cir. 2022). The BIA held that a statutorily noncompliant NTA could still lead to the entry of an in absentia order of removal provided the respondent was subsequently and properly served with a statutorily compliant notice of hearing specifying the time and place of the hearing. Matter of Laparra, 28 I&N Dec. 425 (BIA 2022). However, the First Circuit disagreed, finding that the BIA’s holding was contrary to the plain language of the statute, as well as the Supreme Court’s decisions in Pereira v. Sessions, 138 S. Ct 2105 (2018) and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).

In Matter of Laparra, the respondent was personally served on July 15, 2008, with a defective NTA that lacked the date and time of his immigration court hearing. On March 19, 2010, the immigration court sent a second notice of his hearing to the address he provided, and this notice advised him of the time, date, and place of his hearing, as well as the consequences of failing to appear at the hearing. When he did not appear, he was ordered removed in absentia.

Mr. Laparra later moved to reopen and terminate his proceedings, arguing that the Immigration Judge, or IJ, lacked jurisdiction over the proceedings due to the defective NTA. He also argued that his in absentia order of removal should be rescinded because he was not served with “written notice” of his hearing, as required by section 240(b)(5)(A) of the Immigration and Nationality Act, or INA. Under INA § 240(b)(5)(C)(ii), an IJ may rescind an in absentia order if the respondent demonstrates that he or she “did not receive notice in accordance with paragraph (1) or (2) of [INA § 239(a)].” The BIA rejected both the jurisdictional argument and the argument for reopening and rescinding the in absentia removal order and dismissed Mr. Laparra’s appeal. Mr. Laparra filed a timely petition for review with the First Circuit.

The First Circuit concurred with the BIA’s holding that a defective NTA does not deprive the immigration court of jurisdiction over a respondent’s removal proceeding. However, the appellate court agreed with Mr. Laparra’s argument that neither the defective NTA nor the subsequent hearing notice sent by the immigration court constituted sufficient “written notice” that is required to sustain an in absentia removal order

The question before the First Circuit was whether the hearing notice sent by the immigration court fulfilled the statutory requirement that it advise a respondent “in the case of any change or postponement in the time” of his removal proceeding. INA § 239(a)(2). The First Circuit found that the hearing notice sent by the immigration court did not fulfill the statutory requirement because no initial time of the hearing had been provided in the defective NTA. As such, the hearing notice later sent by the immigration court could not advise of “any change or postponement” because no initial time had been set. There was nothing to “change” or “postpone,” and the written notice provided was defective under the statute. The First Circuit rejected the government’s textual and purpose-based contentions that supported the BIA’s reasoning, finding them unconvincing.

The First Circuit joined two other circuits that found in favor of the noncitizens’ motion to rescind and reopen an in absentia order of removal in similar circumstances. Singh v. Garland, 24 F.4th 1315, 1317 (9th Cir. 2022); Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021). However, at least two other circuits have found rescission and reopening not warranted when the NTA is defective, as long as the immigration court later provides a hearing notice with the correct date, time and place of the hearing. Santos-Santos v. Barr, 917 F.3d 486, 491-92 (6th Cir. 2019); Dacostagomez-Aguilar v. U.S. Att’y Gen., 40 F.4th 1312, 1317 (11th Cir. 2022). Given the deepening circuit split and the overruling of the BIA’s precedential decision on this topic, it is vital that practitioners continue to preserve these arguments for federal court review. It is likely that the Supreme Court will eventually resolve this circuit split, perhaps leading to the Court’s third decision on defective NTAs since 2018.