28 I. & N. Dec. 585
BIA2022Background
- Respondent: native of Cameroon, entered U.S. without valid documents; DHS personally served an NTA on Oct. 9, 2019 that omitted the initial hearing time/place, and later served a notice of hearing with the date.
- Respondent appeared at hearings, obtained counsel, conceded removability, applied for relief; IJ denied relief on Apr. 2, 2020; BIA dismissed the appeal on May 11, 2021.
- On June 16, 2021 respondent filed a timely motion to reopen relying on Niz-Chavez v. Garland (asserting the defective NTA required termination of proceedings).
- DHS opposed termination. The Board concluded Niz-Chavez did not require termination but that under post-Niz-Chavez precedent a defective NTA does not necessarily bar accrual of physical presence for voluntary departure.
- The Board held the respondent forfeited his objection to the missing time/place because he raised it first in a motion to reopen, granted the motion to reopen in part, denied termination, and remanded for the IJ to consider eligibility for voluntary departure.
Issues
| Issue | Respondent's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether Niz‑Chavez requires termination of proceedings because the NTA lacked time/place | Niz‑Chavez means an NTA missing time/place is defective and mandates termination | Niz‑Chavez did not disturb circuit precedent treating such defects as claim‑processing and forfeitable if not timely raised | Forfeited; Niz‑Chavez does not by itself require termination |
| Whether raising the missing time/place objection for the first time in a motion to reopen is timely | First raised in the motion to reopen so should be considered | Forfeited under Fifth Circuit precedent if not raised earlier | Forfeited; objection untimely under Pierre‑Paul approach |
| Effect of defective NTA on accrual of physical presence for voluntary departure | Niz‑Chavez may affect stop‑time and accrual | DHS opposed termination but the Board recognized post‑Niz‑Chavez guidance on accrual | NTA lacking time/place does not preclude accrual for voluntary departure; remand to assess eligibility and discretion |
| Appropriate remedy (reopen / terminate / remand) | Move to reopen and terminate | Oppose termination; limited relief sought by DHS | Motion to reopen granted in part; termination denied; record remanded to IJ for voluntary departure consideration |
Key Cases Cited
- Niz‑Chavez v. Garland, 141 S. Ct. 1474 (2021) (Supreme Court held stop‑time requires a single‑document NTA containing statutorily required information)
- Pierre‑Paul v. Barr, 930 F.3d 684 (5th Cir. 2019) (treats NTA defects as claim‑processing rules that can be forfeited if not timely raised)
- Maniar v. Garland, 998 F.3d 235 (5th Cir. 2021) (confirms Pierre‑Paul remains controlling after Niz‑Chavez)
- Kontrick v. Ryan, 540 U.S. 443 (2004) (distinguishes forfeiture from waiver in claim‑processing context)
- Henderson v. Shinseki, 562 U.S. 428 (2011) (explains purpose of claim‑processing rules: efficiency and fairness)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (addressed when a notice to appear triggers stop‑time rule)
- Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145 (2013) (discusses prompting parties to act and finality in claim‑processing jurisprudence)
- Fort Bend Cty. v. Davis, 139 S. Ct. 1843 (2019) (addresses forfeiture principles)