Thursday, September 23, 2021

BIA Distinguishes Niz-Chavez, Pereira, Finds No Jx Problem With NTA Lacking Time/Date

The Board of Immigration Appeals has issued a decision in Matter of  Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021). Here is the summary:

(1) A Notice to Appear that does not specify the time and place of a respondent’s initial removal hearing does not deprive the Immigration Judge of jurisdiction over the respondent’s removal proceedings. Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), distinguished; Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), and Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745 (BIA 2020), followed.

(2) A Notice to Appear that lacks the time and place of a respondent’s initial removal hearing constitutes a “charging document” as defined in 8 C.F.R. § 1003.13 (2021), and is sufficient to terminate a noncitizen’s grant of parole under 8 C.F.R. § 212.5(e)(2)(i) (2021).

In my 2018 article, Pereira v. Sessions: A Jurisdictional Surprise for Immigration Courts, I reached the exact opposite conclusion.

I am hardly the only one to argue that such an NTA should deprive the court of jurisdiction. Immprof Geoffrey Hoffman (Houston), frequent contributor to this blog, submitted an amicus brief to the BIA on this case arguing that an NTA without time or place information is "defective" under Niz-Chavez and cannot be cured by the later issuance of a Notice of Hearing.

Now the waiting game for SCOTUS intervention begins again. I'm hoping for another scathing opinion by Justice Gorsuch. His Niz-Chavez decision was fire.


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