In its most recent decision in a line of similar decisions, the Board of Immigration Appeals, or BIA, clarified that the time and place requirement in INA § 239(a) is intended to promote the orderly progress of proceedings rather than vest authority in the immigration court. Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022). According to the decision, a respondent may timely object to a deficient Notice to Appear, or NTA, prior to the closing of pleadings and need not show any prejudice caused by the missing time and place information. However, immigration judges (IJ) may allow the Department of Homeland Security to remedy the noncompliant NTA rather than ordering termination of proceedings.

Summary of Facts

Mr. Fernandes, the respondent, was admitted to the United States as a lawful permanent resident. On March 1, 2021, DHS personally served an NTA on Mr. Fernandes, ordering him to appear before an IJ at the Boston immigration court at a date and time “to be set.” DHS subsequently filed the NTA with the court, which later mailed a notice of hearing to Mr. Fernandes notifying him that his initial hearing was set for March 18, 2021.

After some continuances to secure counsel, Mr. Fernandes filed a written pleading objecting to the adequacy of the NTA. At the next hearing, he declined proper service of the NTA and requested a continuance to submit a motion to dismiss the proceedings. Without addressing the adequacy of the NTA, the IJ found Mr. Fernandes removable, but gave him an opportunity to file a written brief. Mr. Fernandes submitted a “Motion to Quash Service of Process for the Respondent’s Notice to Appear and Dismiss Removal Proceedings,” based on the missing time and date information, which the IJ denied. The IJ ordered Mr. Fernandes removed, which he appealed.

BIA Analysis and Holding

Failure to List Time and Date in NTA Does Not Divest Immigration Court of Jurisdiction

First, the BIA held that INA § 239(a)(1) is not a jurisdictional rule, meaning that if that section of the statute is not followed by DHS precisely, that deficiency does not divest the IJ of authority to hear the case and make orders. In its analysis, the BIA acknowledged that the Supreme Court had that found NTAs not complying with INA § 239(a)(1) by missing the required time and date information do not trigger the “stop-time” rule under INA § 240(d)(1). Pereira v. Sessions, 138 S. Ct. 2105, 2114 (2018). It also found that all information required under INA § 239(a)(1) must be included in a single document, the NTA. Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480 (2021).

The BIA then continued to cite Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021) and several circuit court cases that reviewed the question of whether an NTA that fails to comply with the requirements under INA § 239(a)(1) fails to vest jurisdiction in the immigration court. They all decided that such an NTA does not affect the court’s jurisdiction. The BIA then turned to the issue of whether INA § 239(a)(1) is a claim-processing rule and what should be done if there is a timely objection to a noncompliant NTA.

The BIA agreed with several circuit courts in finding that INA § 239(a)(1) is a claim-processing rule. It found that “[b]y giving the respondents notice of where and when to appear for the hearing, the time and place requirement in this provision ‘promote[s] the orderly progress of’ the removal hearings,” and conforms with the general understanding of claim-processing rules. Although the rule may be mandatory and thus must be enforced if properly raised, it is not jurisdictional because it does not deprive the immigration court of authority if not met and because the rule is subject to waiver and forfeiture unless timely raised.

Respondents Must Raise Any Objection to the NTA Before the Close of Pleadings

The BIA next considered what “timely objection” means in the context of INA § 239(a)(1) requirements. While neither the statute nor the Supreme Court provide any guidance, the BIA cited a Fifth Circuit case that noted that a respondent generally waives any challenge to a noncompliant NTA by failing to raise the objection “at the time he concedes removability.” Pierre-Paul v. Barr, 930 F.3d 684, 693 n.6. The BIA subsequently followed the Fifth Circuit in finding that a respondent who raises an objection to the NTA in a motion to reopen has waited too long and forfeited that objection. Matter of Nchifor, 28 I&N Dec. 585, 589 (BIA 2022). In this case, the BIA ultimately determined that “requiring respondents to raise an objection before the closing of pleadings would not force respondents (especially unrepresented respondents) to raise an objection at the initial appearance before an [IJ] and would allow them an adequate opportunity to obtain counsel.” It also allowed “DHS an opportunity to remedy the noncompliant [NTA] before any substantive matters are discussed or determined, which would prevent an undue delay and promote the orderly progress of the proceedings.” Matter of Fernandes at 610. Such objections can be made either orally or as part of the written pleadings.

Respondents Need Not Show Prejudice

After determining what constitutes a timely objection, the BIA next found that, where such a timely objection is made, the respondent need not show prejudice due to the deficiency of the NTA. It found that the statute at INA § 239(a)(1) does not include any mention of such a requirement. It also stated that the Supreme Court has not required any showing of prejudice where a statutory claim-processing rule uses the mandatory term “shall” but does not include a prejudice requirement. The BIA finally noted that the regulatory history of 8 CFR § 1003.18(b) supports its finding that the rule at INA § 239(a)(1) is mandatory, and no prejudice must be shown by a respondent.

IJs May Allow DHS to Remedy the Noncompliant NTA Rather than Terminating Proceedings

The BIA finally turned to what remedy is appropriate where a timely objection is made to an NTA that fails to comply with INA § 239(a)(1). In doing so, it noted that, because the rule is not jurisdictional, IJs may “exercise judgment and discretion to enforce the rule as he or she deems appropriate to promote the rule’s underlying purpose.” Matter of Fernandes at 613. The BIA then pointed out that INA § 239(a)(1) does not explicitly provide for termination as the sole consequence for violation of the rules it outlines, nor preclude the IJ from allowing DHS to remedy any deficiencies in the NTA. Instead, the BIA cited Supreme Court case law that suggests that termination is not the appropriate remedy for a noncompliant NTA. It stated that a “noncompliant [NTA] is not equivalent to a lack of [NTA] altogether,” and just as a “defective civil complaint or criminal information may be amended when necessary, rather than requiring an outright dismissal or termination of the case,” so too can an NTA be remedied without the need to terminate removal proceedings. Matter of Fernandes at 615-616.

Conclusion

The BIA’s position is, at this point, very clear: NTAs that do not contain time, date or place information as required by the statute do not divest the immigration court of jurisdiction. This case clarifies that respondents must raise any objection prior to the close of pleadings but need not show prejudice from the deficient NTA. However, because the rule is not jurisdictional, the BIA again affirms that IJs may allow DHS an opportunity to remedy any deficiencies rather than terminate proceedings. Counsel for respondents should be prepared early in a case, therefore, to raise any objection to deficient NTAs but should also expect IJs to respond by granting time to DHS to remedy the deficiencies rather than ordering termination.