The BIA finally identified the proper means for DHS to remedy a defective Notice to Appear (NTA) that lacks time and date information and therefore is in violation of the claim-processing rule at INA § 239(a)(1)(G)(i), which states an NTA must specify the time and place at which the proceedings will be held. In a precedential decision, the Board of Immigration Appeals (BIA) explained that the Department of Homeland Security (DHS) may remedy a defective NTA by moving the Immigration Judge (IJ) to write in the time and date of the hearing. Matter of R-T-P-, 28 I&N Dec. 828 (BIA 2024).

Matter of R-T-P- is the latest decision to address the proper remedy for a deficient NTA. In 2021, the Supreme Court held that an NTA that lacks the time and place of the initial hearing before the IJ was not remedied by a subsequent notice of hearing. Niz-Chavez v. Garland, 593 U.S. 155 (2021). Following Niz-Chavez, the BIA issued Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022). In Matter of Fernandes, the BIA found that IJs may allow DHS to remedy a deficient NTA without ordering termination. However, the decision failed to specify exactly how DHS might remedy a deficient NTA. In Matter of Aguilar Hernandez, the BIA found that DHS could not remedy a deficient NTA by filing Form I-261. Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024). Most recently, the Supreme Court in Campos-Chaves v. Garland held that a respondent served with a noncompliant NTA may still be ordered removed in absentia under INA section 240(b)(5)(A), if the respondent received a notice of hearing under INA section 239(a)(2) and subsequently failed to appear at the hearing. Campos-Chaves v. Garland, 144 S. Ct. 1637, 1647 (2024).

Here, the respondent was personally served an NTA that lacked the date and time of the first immigration hearing. The San Antonio Immigration Court later issued a hearing notice with the time and date of the respondent’s hearing. At that hearing, the IJ granted the respondent a continuance to hire counsel. At the next hearing, with counsel, the respondent objected to the NTA, arguing that it was legally deficient because it lacked the date and time. The IJ found that the respondent had waived the objection to the NTA by failing to object to it at the first master calendar hearing. After the BIA issued Matter of Fernandes, which clarified that an objection to an NTA is timely if done before the close of pleadings, the respondent renewed his objection to the NTA. In response, the DHS sought three remedies to remedy the defective NTA: (1) filing Form I-261; (2) filing a copy of the first page of the noncompliant NTA with written amendments to the NTA; and (3) requesting that the IJ make amendments to the date and time of the hearing on the NTA itself. Finding that none of these remedies were sufficient to correct the NTA, the IJ terminated the respondent’s removal proceedings. DHS then filed an appeal to challenge the termination of proceedings.

The BIA acknowledged that neither of their prior decisions in Matter of Fernandes and Matter of Aguilar Hernandez defined what would constitute a proper remedy for a defective NTA, but that these decisions, considered with Supreme Court’s decisions, illustrate the essential criteria for a proper remedy. The BIA held that a proper remedy should: (1) result in an NTA as a single document; (2) be consistent with the rules governing the procedures used for remedy; (3) help to promote the underlying purpose of claim-processing rules generally and the rule that the NTA include the time and place of the hearing in particular; and (4) not prejudice the respondent.

The BIA went on to clarify that the single document requirement does not mean that once an NTA is filed with the court, it can never be amended just because the INA does not explicitly permit the amendment of an NTA. The BIA also compared immigration proceedings to those of other tribunals, reasoning that both civil complaints and criminal indictments may be amended without the need to first dismiss or terminate proceedings.

In finding that IJs may make written amendments to the NTA by writing in the date and time of the hearing upon DHS motion, the BIA reasoned that this is the appropriate remedy because IJs routinely amend NTAs upon the motion of a party to correct typographical errors, amend factual allegations, and update respondents’ applications for relief. They further reasoned that while the contents of the NTA are based on information belonging to the parties, the date and time of the initial hearing can only be included on the NTA through procedures established by the immigration court, and therefore the IJ is amending the immigration court’s own previously provided information. The BIA further held that the NTA may be amended in this manner so long as it includes a future hearing date no fewer than 10 days after the date the amended NTA is served on the respondent.

Practitioners should object to any motions for the IJ to amend the NTA and articulate why the deficient NTA prejudices their client. In Matter of R-T-P-, the BIA states that whether an amendment is the appropriate remedy continues to be a case-by-case determination and does not require an IJ to amend the NTA in all cases. Practitioners should expect that this issue will be challenged at the Circuit court level. If the IJ amends the NTA at DHS’s request, an objection will preserve the issue for appeal and ensure that clients will benefit from any subsequent developments by the courts of appeals or Supreme Court. Before making any objections, practitioners should continue to carefully weigh the benefits of termination to the client before pleadings are complete. It may not be in the client’s best interest to seek termination if they wish to pursue relief that is only available in proceedings, such as non-LPR (lawful permanent resident) cancellation of removal.