The Board of Immigration Appeals (BIA), in an important precedential decision, held that the Department of Homeland Security (DHS) cannot remedy a defective Notice to Appear (NTA) that lacks time and date information because this remedy is contrary to the plain text of the regulations and inconsistent with a prior decision of the Supreme Court. Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024).).

The regulation at issue in this case is 8 CFR § 1003.30, which states that DHS may at any time during removal proceedings file additional or substitute charges of removability and/or factual allegations in writing. In 2021, the Supreme Court held that an NTA that lacks the time and place of the initial hearing before the Immigration Judge (IJ) could not be remedied by the Immigration Court’s issuance of a notice of hearing that informs the respondent when to appear for the initial hearing. Niz-Chavez v. Garland, 593 U.S. 155 (2021). Following Niz-Chavez, the BIA found that a respondent may timely object to a deficient NTA prior to the closing of pleadings and need not show any prejudice caused by the missing time and place information, but that IJs may allow DHS to remedy the noncompliant NTA rather than ordering termination of proceedings. in Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022), However, the BIA failed to articulate what remedy short of termination would suffice in that case.

In this case, the respondent was personally served with an NTA that lacked time and date information for the first hearing. At the first master calendar hearing, the respondent moved to terminate proceedings and argued that the NTA was legally defective because it lacked the required information. However, the IJ denied the motion. After the Niz-Chavez and Fernandes decisions, the respondent renewed his motion to terminate proceedings. The IJ again denied the motion and allowed DHS to amend the NTA and include the hearing information by filing Form I-261. The respondent then filed an interlocutory appeal to challenge the IJs denial of termination of proceedings. The BIA sustained the interlocutory appeal and remanded the case to the IJ.

The BIA reasoned that the plain text of 8 CFR § 1003.30 does not allow DHS to amend the date and time on the NTA by filing Form I-261 because the form can only be used to add or substitute charges or factual allegations on the NTA, and the time and date of the initial hearing are neither charges nor factual allegations. The BIA continued that the use of Form I-261 to cure a defective NTA is also contrary to the Supreme Court’s holding in Niz-Chavez that the INA requires DHS to issue a single charging document containing the required information, and therefore a notice of hearing cannot cure a defective NTA. The BIA concluded that its decision in this case is consistent with that in Matter of Fernandes in that DHS must remedy a defect in an NTA when the respondent timely raises an objection, but filing Form I-261 is not the appropriate mechanism to do so.

The BIA sidesteps discussion of what action DHS is authorized to take to remedy a defective NTA. There is no clear mechanism for DHS to remedy a defective NTA outside of dismissing proceedings and issuing a new NTA. This decision affirms that this is a claims processing rule — not a jurisdictional rule. If the NTA is defective, the Respondent must affirmatively move for termination.

Practitioners should carefully weigh the benefits of termination to the client before pleadings are complete. Seeking termination may not be in a client’s best interest. For example, a defective NTA does not stop the clock with respect to the 10 years of continuous residency in the United States. Foregoing termination may allow a client to accrue 10 years of continuous presence, making them eligible for non-LPR cancellation of removal. Likewise, clients who may be subject to mandatory detention – but not currently detained – may not want to seek termination. Many individuals subject to mandatory detention were released pursuant to the Ninth Circuit’s decision in Fraihat v. ICE, 16 F.4th 613 (9th Cir. 2021), which required consideration of an individual’s risk of contracting COVID-19. When issuing a new NTA, DHS may reconsider the decision to release an individual who is subject to mandatory detention.

Individuals who do not have a strong claim for relief in removal proceedings or who are eligible for and would prefer to pursue relief before U.S. Citizenship and Immigration Services

(USCIS) will likely benefit from termination. Practitioners should follow local trends in their jurisdiction to determine the likelihood that DHS will issue a new NTA if proceedings are terminated and advise clients accordingly.