Developments on Validity of Notices To Appear in Immigration Court

By Amanda Kwong

Last year, the U.S. Supreme Court issued a decision stating that Notices to Appear (“NTA”) that do not state a time and place of the deportation hearing in immigration court are not valid. This failure to comply with legal requirements had varying consequences, including some cases being terminated. The U.S. Supreme Court case was Pereira v. Sessions, and you can read more about this case by clicking on the following link –

In that case, the noncitizen was able to utilize the time from their date-of-entry onward when determining their physical presence in the United States. Because no date or time was specified in that NTA, their physical presence continued to be counted, as opposed to the “clock” stopping with the issuance of the NTA. That respondent was thus able to meet eligibility requirements for a specific type of immigration relief called Cancellation of Removal for Non-Permanent Residents

Before the Pereira decision, the “stop-time rule” required a person’s physical presence in the U.S. to effectively stop being counted once the NTA was served. After the decision, however, the clock did not stop since the NTA was not valid. There have been many news reports of fake dates and times for respondents to show up to immigration court. Upon arrival, many realized that their court dates did not exist. The government issued arbitrary dates seemingly to avoid allowing individuals to become eligible for certain types of relief.

On May 1, 2019, the Board of Immigration Appeals (“BIA”) issued a decision in Matter of Mendoza-Hernandez about how the deficient NTAs may be perfected so that the stop-time rule applies. NTAs that do not contain the time and place of initial removal proceedings are perfected by the subsequent service of a notice of hearing specifying that missing information. In other words, once a respondent has both documents such that all required information is in their hands, they have been served with a sufficient NTA.

In reaching the conclusion that a two-step process is acceptable, the BIA looked to the historical actions of different court of appeals, and that the fundamental purpose of the NTA was so that the respondent would know when and where to appear. Thus, if a noncitizen appears for their court date after receiving a notice of hearing issued by the immigration court, then the NTA is cured. The BIA also noted that the respondent in Pereira did not receive a subsequent notice of hearing regarding time and place of initial removal hearing until after the accrual of 10 years of physical presence he needed to qualify for his relief.

The minority opinion disagreed because it believed that the Supreme Court was clear that a deficient NTA does not meet the definition of an NTA under a specific section of law. They believed that a defective notice could not be cured for several reasons. The relevant law refers to an NTA as a single document issued by the Department of Homeland Security (“DHS”), and the immigration court or judge does not have the authority to serve an NTA. Additionally, there is a section of law that allows for the change or postponement of the hearing, and as the Supreme Court stated, there is no time or place to change if the government did not already serve a NTA that specified the time and date. The minority questions the analysis of how courts of appeals handled the issue prior to the Supreme Court’s decision.

For now, it appears unclear how the law will continue to develop. Many noncitizens had their immigration proceedings terminated, and those that requested termination but were not granted may have appealed the judge’s decision already. Other noncitizens, who had requested certain types of relief where the stop-time rule would have continued to run, may still be waiting for their days in court. Because small details make big differences, make sure you are working with a knowledgeable and experienced immigration attorney.