Sunday, May 2, 2021
Niz-Chavez and Jurisdiction? by Geoffrey A. Hoffman
The Supreme Court's decision earlier this week in Niz-Chavez v. Garland is potentially revolutionary. First, it rejected the impoverished and incorrect interpretation by circuit courts and the BIA of Pereira v. Sessions (20-18) about the alleged "curing" of a defective Notice to Appear (NTA) by a subsequent notice of hearing. Such an interpretation was not at all supported by Pereira and indeed foreclosed by that decision. Furthermore, more importantly, if interpreted correctly, it may upend the jurisdiction in many cases of the immigration court. I want to emphasize at the outset that the majority does not say anything about jurisdiction and the effect of a deficient NTA on the immigration court's jurisdiction. That said, the issue was not before the Supreme Court and so they were constrained by the issues that were presented to them. It did not have a reason to opine on jurisdiction. Nevertheless, I would point anyone to the following language in the last paragraph in the decision:
".... In this case, the law’s terms ensure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them." (emphasis added).
This language seems to mandate that no NTA can be valid unless a single document with the time and date and therefore the Supreme Court has clarified what amounts to a proper and legitimate NTA. The argument is that having so defined the proper NTA (and thus clarified Pereira v. Sessions) the government now would have to dismiss the cases with deficient NTAs as of now and issue new NTAs. This still does not get us to a wholesale decision on jurisdiction, but it is pretty close. At this point, attorneys may argue that if there was a deficient NTA termination is appropriate and (of course) DHS can reissue the NTA (with the appropriate info on it) and move forward at that point.
As we know, some courts of appeals and the BIA in Matter of Bermudez-Cota, 27 I&N Dec 441 (BIA 2018), embraced the "claims processing rule" rationale in an effort to reject the jurisdictional argument based on a deficient NTA under Pereira. If courts going forward do buy that argument then likely they would not mandate termination unless there was some "prejudice" to the respondent and it was not waived and the issue was duly preserved. However if the claims processing rule rationale is rejected, as it should be, then jurisdiction never vested and those cases must be terminated or reopened irrespective of any prejudice.
In addition to jurisdiction, Niz-Chavez left unanswered the issue of what to do with in absentia orders with defective NTAs. Such in absentia orders are a special case given the governing statute. These cases should be reopened. First, because under INA in absentia orders cannot be issued unless a NTA was issued (as the statute expressly states) with the "time and place" of proceedings received by the respondent. As it says you may “be ordered removed in absentia” only after receipt of the “written notice required under . . . section 1229(a).” (emphasis added). Second, by definition, since the person was not present at the time of the issuance of the in absentia order they were not able to preserve their claim that the NTA was deficient and so cannot be said to have waived the argument. The pending case, Yanez-Pena v. Garland (No. 19-1208) is currently pending before the Supreme Court on this related issue.
Finally, I think voluntary departure is another special case where Niz-Chavez needs to be applied to reopen those cases wholesale. Those motions should be granted to reopen given the ruling now in Niz-Chavez; the argument here is since voluntary departure is necessarily dependent for the respondent's eligibility on the issuance of a valid NTA then how be granted VD without a valid NTA. As we know at least for at-the-conclusion VD one of the eligibility requirements for this type of relief is that "the alien has been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served under section 1229(a) of this title..." Given that under Niz-Chavez the NTA had to be one single document with the time and date as we know now if someone wanted to reopen who was issued VD and now wanted some other type of relief (to which they are now eligible) they should be able to do so.
On jurisdiction, generally - regardless of the type of relief sought - given the language quoted above in Niz-Chavez practitioners have a strong and viable argument against jurisdiction given the existence of a deficient NTA in the record. The ultimate resolution of this issue may yet need to be decided in future in another installment of the Pereira saga.