Positive Ruling from the Ninth Circuit on Validity of “Notices to Appear” in Immigration Court

By: Attorney Brittany Milliasseau

Just a few weeks after the Board of Immigration Appeals (BIA) issued a decision which drastically limited relief available to certain noncitizens who received

defective Notices to Appear in Immigration Court, a ruling from the Ninth Circuit Court of Appeals was recently issued which now restores hope to those same noncitizens. Before discussing the Ninth Circuit ruling, it is helpful to look back at how the law in this area has developed over the past year.

Being placed into Immigration Court Removal Proceedings begins with the issuance and service of a document called a Notice to Appear (NTA).  The law requires that the NTA state the time and place of the first hearing in Immigration Court. However, in the interest of expediency, the Department of Homeland Security (DHS) has issued many NTAs stating that the date and place of that first hearing will be provided at a later time.

Last year, the United States Supreme Court issued a decision, Pereira v. Sessions, which held that NTAs that do not state a time and place of the Immigration Court hearing do not comply with the law and are not valid. In Pereira, the noncitizen was able to utilize the time from his date of entry onward when determining his physical presence in the United States. Because no date or time was specified in that NTA, his 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. On May 1, 2019, the BIA issued a decision, Matter of Mendoza-Hernandez, which discussed that deficient NTAs may be perfected so that the stop-time rule applies. Essentially, the BIA held that 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 an NTA and Notice of Hearing such that all required information is in their hands, they have been served with a sufficient NTA.

Just a few weeks after the BIA’s decision in Matter of Mendoza-Hernandez, the Ninth Circuit issued a decision to the contrary.  In its May 22, 2019 decision, Lorenzo Lopez v. Barr, the Ninth Circuit held that a defective NTA (one that does not state the time and place of the hearing) cannot be cured by a subsequent Notice of Hearing.  Specifically, the Ninth Circuit reasoned that the law does not permit multiple documents to collectively satisfy the requirements of an NTA.  In reaching its conclusion, the Ninth Circuit noted that the primary function of an NTA is to give notice to the respondent, which is essential to removal proceedings.  Further, since the requirements of an NTA are substantive, the failure to conform with the substantive requirements of the law may not be cured by a subsequent Notice of Hearing.  The Court also points out that nothing precludes DHS from issuing NTAs that conform to the statutory definition.

This recent decision means that even after the BIA’s decision, many noncitizens living in the Ninth Circuit’s jurisdiction may still be eligible for relief before an immigration judge based on the Ninth Circuit’s clarification of the requirements regarding a defective NTA and its impact on the stop-time rule.  Noncitizens in immigration court proceedings living outside of the Ninth Circuit should consult with a knowledge immigration attorney to discuss how the law is being applied in their particular circuit.

It is important to note that this is a developing area of law.  Those in immigration court proceedings who received an NTA without a specific time and place of hearing should consult with an experienced immigration attorney as soon as possible to discuss how the recent developments in immigration law may impact their particular case.