The Supreme Court issued a decision limiting the ability of noncitizens to reopen and rescind in absentia orders of removal issued against them. Campos-Chaves v Garland, 602 U.S. __ (2024). The noncitizens had argued that they had been served with deficient Notices to Appear (NTAs) that did not provide adequate notice of their proceedings. The decision was somewhat surprising, given the Court’s previous decisions in Niz-Chavez v. Garland, 593 U. S. 155 (2021), and Pereira v. Sessions, 585 U. S. 198 (2018). In those earlier decisions, the Supreme Court held that only a statutorily compliant NTA that contained the time and place of the removal proceeding could stop the accrual of continuous physical presence for purposes of cancellation of removal under INA § 240A.

However, Campos-Chaves reached a different result when considering the notice requirements necessary for immigration judges to issue in absentia removal orders. Under INA § 239(a)(1), an NTA, which initiates removal proceedings, must contain “the time and place at which the proceedings will be held.” For many years, the majority of NTAs lacked this required information, stating only “TBD” in lieu of the actual time and place of the removal proceedings. The immigration courts would typically then send a later notice of hearing referenced under INA § 239(a)(2) to the noncitizen with the actual time, date, and place of the hearing.

A separate statutory provision allows for entry of in absentia order of removal if the noncitizen has received “written notice” under paragraph (1) or (2) of section 239 and DHS establishes that that the noncitizen is removable.

The fact pattern in the consolidated cases before the court in Campos-Chaves was the same. Each noncitizen received a defective NTA that lacked the time and place of the hearing. Each later received a notice of hearing containing the time and place of the hearing. Had the noncitizen received proper notice such that an in absentia order of removal could be issued? The Court held yes, in a divided 5-4 opinion. The Court reasoned that the ordinary meaning of the specific statutory provision was that either a paragraph (1) notice (i.e., an NTA) or a paragraph (2) notice (i.e., a separate notice of hearing) can count as “notice in accordance with paragraph (1) or (2).” Thus, the noncitizens had received proper notice in this case. The Court also held that an in absentia order of removal can only be rescinded based on lack of notice if the noncitizen establishes that they did not receive written notice that would have informed them of the relevant hearing they missed.

Justice Jackson, in dissent, criticized the majority's opinion as inconsistent with prior precedent in Niz-Chavez and Pereira, as well as the clear requirements of the statute. Her dissent argues that the statute first requires the provision of a compliant NTA; a subsequent notice of hearing under paragraph (2) of INA § 239 can only function to “change” the prior hearing. This subsequent notice is meant to supplement the prior notice, not to supplant it. Since the statutory scheme was not properly followed here, in her view the noncitizens were entitled to rescission of the in absentia removal orders issued against them.

Implications for Practitioners:

• In reaching its decision, the Supreme Court overruled favorable precedential decisions in the First, Third, Fourth, and Ninth Circuits. Laparra-Deleon v. Garland, 52 F.4th 514 (1st Cir. 2022); Madrid-Mancia v. U.S. Att’y Gen., 72 F.4th 508 (3d Cir. 2023); Lazo-Gavidia v. Garland, 73 F.4th 244 (4th Cir. 2023); Singh v. Garland, 24 F.4th 1315 (9th Cir. 2022). Thus, reopening an in absentia order of removal in those circuits will now be much more difficult. In all circuits, practitioners will have to establish that the noncitizen did not receive notice of the hearing that they missed. A defective NTA is not sufficient to show lack of notice.
• This case only dealt with the notice requirements for an in absentia order of removal to be issued. Practitioners may continue to object to deficient NTAs and may continue to raise arguments for remedies, including termination of proceedings, when DHS has issued a defective NTA. See Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022) (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); Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024) (DHS cannot remedy a defective NTA by filing an I-261). Indeed, in dicta, the majority opinion states that: “[a]lthough an alien who receives only paragraph (2) notice must still attend the hearing or face in absentia removal, he can raise issues regarding incomplete notice at that time.”
• Niz-Chavez and Pereira remain good law and are not overruled by this decision. Thus, to trigger the stop-time rule for removal cancellation, a noncitizen must be served with a statutorily compliant NTA.