In Matter of Laparra, 28 I&N Dec. 425 (BIA 2022), the BIA continued its efforts to minimize the effect of a noncompliant NTA by holding that it did not deprive the immigration judge of jurisdiction or prevent the issuance of an in absentia order. Specifically, the BIA found that the Supreme Court’s decisions in Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), did not alter the validity of the in absentia order issued against the respondent because he received proper notice of the time and place of his immigration court hearing through a notice of hearing issued by the court. In Laparra, the respondent was personally served with a statutorily noncompliant NTA on July 15, 2008, which lacked the date and time of his immigration court hearing. On March 19, 2010, the immigration court sent notice of the respondent’s hearing to the address he provided, which advised him of the time, date, and place of his hearing, as well as the consequences of failing to appear at the hearing. When the respondent did not appear, he was ordered removed in absentia.

The respondent moved to reopen and terminate his proceedings, arguing that the immigration judge (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 He also argued that his in absentia order of removal should be rescinded because he was not served with “written notice” of his hearing, as required by the Immigration and Nationality Act (INA) § 240(b)(5)(A). 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 respondent’s argument for reopening and rescinding the in absentia removal order. First, the BIA affirmed its recent holding in Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021), that an NTA lacking information about the time and place of an immigration court hearing did not deprive the IJ of jurisdiction over a respondent’s removal proceedings. Second, the BIA rejected the respondent’s arguments for reopening based on failure to receive sufficient notice under INA §§ 240(b)(5)(A) and (C)(ii). The BIA instead reaffirmed its earlier decisions in Matter of Pena-Mejia, 27 I&N Dec. 546 (BIA 2019), and Matter of Miranda-Cordiero, 27 I&N Dec. 551 (BIA 2019), that an in absentia order of removal may be entered and need not be rescinded if “a written notice containing the time and place of the hearing was provided either in a notice to appear under section 239(a)(1) or in a subsequent notice of the time and place of the hearing pursuant to section 239(a)(2).”

The BIA provided the following reasoning in support of its holding. First, the BIA looked at the statutory language and noted that, in contrast to the stop-time rule at issue in Niz-Chavez, the in absentia provisions do not use an indefinite or definite article such as “a” or “the” to modify the terms “written notice” and “notice.” Consequently, the BIA concluded that the in absentia provisions do not describe a discrete act of notice coming in the form of a single document. Instead, the BIA read the in absentia provisions as providing that such notice could be in the form of either an NTA or in the form of a subsequent notice of hearing confirming the time and place of the hearing.

The BIA noted that both an NTA and a notice of hearing are required to inform a respondent of: 1) the time and place of the hearing at which he or she could be ordered removed; and 2) that the respondent could be ordered removed in absentia for failure to appear. The BIA determined that once the respondent has been shown to receive both pieces of information, an in absentia order of removal can generally be entered. The BIA also referred to the “stop-time” rule as a “discrete moment in time” and contrasted it with the ongoing process of the immigration court apprising the parties of new hearing dates by serving them with notices of hearing under section 239(a)(2). For any given proceeding, there may be multiple hearings and multiple notices of hearing issued pursuant to the statute. The BIA also reasoned that a contrary holding in this case could lead to absurd results, because a noncitizen who receives a noncompliant NTA but who still appears for a hearing could be ordered removed, but the same noncitizen who failed to appear would be shielded from removal.

The BIA acknowledged a recent Fifth Circuit decision reaching a contrary holding but disagreed with its reading of the statute and limited that decision’s application to the Fifth Circuit. The Fifth Circuit held that an NTA that lacks hearing time and place information was grounds for rescission and reopening of an in absentia order, reasoning that in light of Niz-Chavez such person did not receive “notice in accordance with” INA § 239(a). Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021).

While the BIA’s decision is binding outside of the Fifth Circuit, practitioners should continue to preserve these issues for federal court review. They should closely review the Fifth Circuit’s decision in Rodriguez and consider citing to its logic as persuasive in any briefing they provide to the court on these issues. Practitioners are also encouraged to explore alternative grounds for reopening, including statutory motions based on changed country conditions or exceptional circumstances for failure to appear. Practitioners may also consider pursuing joint motions with ICE or motions filed pursuant to the IJ’s sua sponte authority. For more on possible in absentia Niz-Chavez-based arguments, see CLINIC and the American Immigration Council’s practice advisory, “Strategies and Considerations in the Wake of Niz-Chavez v. Garland.”