27 I. & N. Dec. 745
BIA2020Background:
- Respondents (mother and son, Mexican nationals) were served Notices to Appear (NTAs) dated Aug 13, 2015 that omitted the time, date, and address (place) of the Immigration Court where DHS would file the charging document.
- DHS later served notices of hearing (Nov 21, 2015) specifying time, date, and the Los Angeles Immigration Court address; respondents appeared at the Dec 7, 2015 hearing and venue was later changed to San Francisco.
- On June 27, 2019 respondents moved to terminate removal proceedings, arguing the defective NTAs deprived the Immigration Court of subject-matter jurisdiction under 8 C.F.R. §§ 1003.15(b)(6) and 1003.14(a).
- The Immigration Judge agreed and terminated the proceedings for lack of jurisdiction.
- DHS appealed, arguing (relying on Matter of Bermudez-Cota and Karingithi) that the later notices of hearing cured the defects and that the regulations are claim-processing/internal docketing rules, not jurisdictional limits.
- The BIA sustained DHS’s appeal, held the challenged regulations are claim-processing/internal docketing rules, ruled later notices of hearing can cure an NTA that omits the court address or certificate detail, vacated termination, and reinstated/remanded the proceedings.
Issues:
| Issue | Respondents' Argument | DHS' Argument | Held |
|---|---|---|---|
| Does omission of the Immigration Court address in the NTA deprive the Immigration Court of subject-matter jurisdiction? | NTA lacking the court address means jurisdiction never vested under 8 C.F.R. §1003.15(b)(6) and §1003.14(a). | The address requirement is an internal docketing/claim-processing rule; a later notice of hearing can supply the missing information. | Held: Omission does not deprive the court of subject-matter jurisdiction; the defect is claim-processing and cureable by later notice of hearing. |
| Does failure to include a certificate of service indicating the Immigration Court (second sentence of §1003.14(a)) deprive the court of jurisdiction? | The missing certificate detail prevents proper commencement of proceedings and thus jurisdiction is lacking. | The certificate requirement is a procedural/docketing rule aimed at administrative efficiency and notice, not subject-matter jurisdiction. | Held: Certificate requirement is claim-processing; its omission alone is not a basis to terminate proceedings. |
| Can a subsequent notice of hearing that supplies time, date, and place cure an otherwise defective NTA? | Subsequent notice cannot cure a jurisdictional defect; termination is required. | Subsequent notice cures the defects; jurisdiction vested when charging document process is completed consistent with the rules. | Held: Subsequent notice of hearing can cure an NTA omission (including place/address); cure renders termination inappropriate absent prejudice. |
| Is 8 C.F.R. §1003.14(a) a rule that implicates subject-matter jurisdiction or a claim-processing/internal docketing rule? | §1003.14(a) (jurisdiction vests when charging document filed) is jurisdictional and cannot be altered by regulation. | §1003.14(a) is a claim-processing/internal docketing rule; the term "jurisdiction" in the regulation does not mean nonwaivable subject-matter jurisdiction. | Held: §1003.14(a) is a claim-processing/internal docketing rule, not a limit on subject-matter jurisdiction. |
Key Cases Cited
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (deferred to BIA’s Bermudez‑Cota holding that an NTA lacking time/date does not strip IJ jurisdiction when later cured)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (an NTA missing time/place does not trigger the immigration "stop‑time" rule)
- Union Pacific R.R. v. Brotherhood of Locomotive Engineers, 558 U.S. 67 (2009) (the term "jurisdiction" has multiple meanings; not all mandatory prescriptions are jurisdictional)
- Lopez‑Munoz v. Barr, 941 F.3d 1013 (10th Cir. 2019) (8 C.F.R. §1003.14 is a claim‑processing rule)
- Perez‑Sanchez v. U.S. Att’y Gen., 935 F.3d 1148 (11th Cir. 2019) (same)
- Pierre‑Paul v. Barr, 930 F.3d 684 (5th Cir. 2019) (same)
- United States v. Cortez, 930 F.3d 350 (4th Cir. 2019) (same)
- Ortiz‑Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019) (same)