28 I. & N. Dec. 425
BIA2022Background
- Respondent (Guatemalan) entered without inspection; DHS personally served a Notice to Appear (NTA) on July 15, 2008 that did not specify time/place of the initial hearing.
- Immigration Court later sent a statutorily compliant Notice of Hearing (Mar. 19, 2010) scheduling the initial hearing for Apr. 8, 2010 at 1:30 p.m. and warning of in absentia consequences.
- Respondent failed to appear at the April 8, 2010 hearing and the Immigration Judge entered an in absentia removal order.
- Respondent moved to reopen and terminate or rescind the in absentia order, relying on Pereira v. Sessions and Niz-Chavez v. Garland to argue lack of jurisdiction and insufficient "written notice."
- The Board concluded the IJ had jurisdiction because the later, compliant notice of hearing supplied the missing time/place information, and that the compliant hearing notice satisfied the in absentia notice requirements; the motions were denied.
Issues
| Issue | Respondent's Argument | Government/Board's Argument | Held |
|---|---|---|---|
| Whether a noncompliant NTA (without time/place) deprives the Immigration Court of jurisdiction and requires termination | Niz-Chavez and Pereira mean the initial NTA must be a single compliant document; without it, IJ lacked jurisdiction; proceedings should be terminated | A later, statutorily compliant notice of hearing vests/maintains IJ jurisdiction; Niz-Chavez does not change the jurisdictional analysis | Denied — IJ had jurisdiction because respondent received a compliant notice of hearing after the NTA (Matter of Arambula‑Bravo followed) |
| Whether an in absentia removal order must be rescinded because the NTA lacked time/place information despite a later compliant notice of hearing | The in absentia order is invalid because respondent did not receive the statutorily required "written notice" as a single document (relying on Niz‑Chavez reasoning) | Sections 240(b)(5)(A) and (C)(ii) allow "written notice" to be satisfied either by a compliant NTA or by a subsequent compliant notice of hearing; the later hearing notice here provided the time/place and consequences, so rescission is not required | Denied — the compliant notice of hearing supplied sufficient "written notice" to support the in absentia order (reaffirming Matter of Pena‑Mejia and Miranda‑Cordiero) |
Key Cases Cited
- Niz‑Chavez v. Garland, 141 S. Ct. 1474 (2021) (Supreme Court held the stop‑time rule requires a single notice to appear containing all required information)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (Supreme Court held a deficient NTA without time/place cannot trigger the stop‑time rule)
- United States v. Castillo‑Martinez, 16 F.4th 906 (1st Cir. 2021) (circuit decision consistent with holding that later hearing notice can vest jurisdiction)
- Santos‑Santos v. Barr, 917 F.3d 486 (6th Cir. 2019) (held a later compliant notice of hearing can satisfy § 240(b)(5)(A) even if the original NTA lacked time/place)
- Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021) (reached a contrary conclusion on sufficiency of notice; relied on single‑document reading)
- Chery v. Garland, 16 F.4th 980 (2d Cir. 2021) (distinguished Niz‑Chavez for jurisdictional/in‑absentia contexts)