24 F.4th 1315
9th Cir.2022Background
- Varinder Singh, an Indian national who entered without inspection in 2016, was issued a Notice to Appear (NTA) that omitted the hearing date and time (listed as “TBD”).
- Singh provided the court a mailing address different from his residence; subsequent hearing notices that did include date/time were mailed to that address but were not forwarded to him until 2019.
- Singh failed to appear at a December 2018 hearing and was ordered removed in absentia; he filed a timely motion to reopen within 180 days asserting two grounds: defective notice under §1229(a) (relying on Pereira/Niz-Chavez) and, alternatively, “exceptional circumstances.”
- The Immigration Judge denied the motion as harmless error because later hearing notices provided the date/time; the BIA affirmed, relying on Matter of Pena‑Mejia to limit Pereira and holding later notices could cure the defect.
- The Ninth Circuit reviewed legal questions de novo, held that §1229(a) requires a single-document NTA containing time and date, found Singh’s initial NTA defective, granted the petition, and remanded to the BIA; the court did not decide the exceptional‑circumstances claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an NTA lacking time/date satisfies §1229(a) | Singh: An NTA must include time and date in a single document; omission invalidates notice (Pereira/Niz‑Chavez) | Government/BIA: Pereira limited; omission is curable and does not render NTA invalid | Court: NTA must be a single statutorily compliant document including time/date; omission is defective |
| Whether subsequent hearing notices under §1229(a)(2) can cure a defective NTA | Singh: Paragraph (2) notices cannot substitute for a compliant paragraph (1) NTA | Government/BIA: Paragraph (2) hearing notices cure the defect; the disjunctive “or” allows reliance on paragraph (2) | Court: Paragraph (2) cannot standalone; hearing notices supplement but do not replace the paragraph (1) NTA; the two‑step practice is rejected per Niz‑Chavez |
| Whether Singh’s absence was due to “exceptional circumstances” excusing his failure to appear | Singh: Delay in receiving mailed hearing notices (household forwarding failure) constituted exceptional circumstances | Government: Plaintiff/control of friend’s household meant no exceptional circumstances | Court: Did not reach this issue after resolving defective‑notice claim |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (an NTA that omits time/place is not a §1229(a) "notice to appear")
- Niz‑Chavez v. Garland, 141 S. Ct. 1474 (2021) (requires a single, §1229(a)‑compliant document; rejects two‑step NTA + later hearing‑notice practice)
- Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021) (applies Niz‑Chavez to in‑absentia context)
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (connects §1229(a) requirements to in‑absentia consequences)
- Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016) (standard of review: legal questions reviewed de novo)