2 F.4th 685
7th Cir.2021Background:
- Cristian Avila de la Rosa, a Mexican national who entered the U.S. as a minor and lived here continuously, was placed in removal proceedings after a 2019 disorderly conduct conviction.
- The Department served an initial Notice to Appear (NTA) that omitted the time and place of the removal hearing, in violation of 8 U.S.C. § 1229(a).
- Avila promptly filed a motion to terminate the proceedings on June 9, 2019, objecting to the defective NTA; the immigration judge denied the motion and ordered removal.
- The Board of Immigration Appeals (BIA) acknowledged the NTA was noncompliant but affirmed the removal order on the ground that Avila had not shown prejudice from the defect.
- Avila petitioned the Seventh Circuit for review, arguing a timely objection to a defective NTA entitles dismissal without a separate showing of prejudice.
- The Seventh Circuit granted the petition, holding the BIA erred in requiring a prejudice showing where a timely objection invoked the mandatory claims-processing rules; the case was remanded to the BIA.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a timely objection to a defective NTA requires a showing of prejudice to obtain dismissal | Avila: A timely objection to a noncompliant NTA invokes mandatory §1229(a) protections and entitles relief without proof of prejudice | Government/BIA: Relief requires a showing of prejudice from the NTA defect | The court held that a timely objection to a defective NTA is sufficient; the BIA erred by imposing a prejudice requirement |
Key Cases Cited:
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (statute requires a single, complete NTA; rejects "notice-by-installment")
- Periera v. Sessions, 138 S. Ct. 2105 (2018) (guidance on what constitutes adequate removal notice)
- Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019) (§1229 requirements are mandatory claims-processing rules; timely objection preserves relief)
- Alvarez-Espino v. Barr, 959 F.3d 813 (7th Cir. 2020) (denial of relief where objection was untimely and prejudice not shown)
- Vyloha v. Barr, 929 F.3d 812 (7th Cir. 2019) (timeliness and prejudice framework applied)
- Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13 (2017) (claims-processing rules may be enforced but can be waived or forfeited)
- Sobaleva v. Holder, 760 F.3d 592 (7th Cir. 2014) (standard of review for legal questions)
- Ahmed v. Ashcroft, 348 F.3d 611 (7th Cir. 2003) (distinguishing when substantial-evidence review applies)