R-T-P , 28 I. & N. Dec. 828 ( 2024 )

Cite as 28 I&N Dec. 828 (BIA 2024) Interim Decision #4079
Matter of R-T-P-, Respondent
Decided September 6, 2024
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) A proper remedy for a violation of the claim-processing rule at section 239(a)(1)(G)(i)
of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(1)(G)(i) (2018), should
(1) result in a notice to appear as a single document; (2) be consistent with the rules
governing the procedures used for remedy; (3) help to promote the underlying purpose
of claim-processing rules generally and the rule that the notice to appear include the
time and place of the hearing in particular; and (4) not prejudice the respondent.
(2) Written amendments made by an Immigration Judge, upon the motion of the
Department of Homeland Security, to the time and place of the hearing on the notice to
appear may satisfy the requirements for a proper remedy to a noncompliant notice to
appear.
FOR THE RESPONDENT: Stephen J. O’Connor, Esquire, Austin, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: Donald Cassidy, Associate
Legal Counsel
BEFORE: Board Panel: MONTANTE and OWEN, Appellate Immigration Judges;
BORKOWSKI, Temporary Appellate Immigration Judge.
BORKOWSKI, Temporary Appellate Immigration Judge:
In a decision dated September 21, 2022, the Immigration Judge granted
the respondent’s motion to terminate the removal proceedings. The
Department of Homeland Security (“DHS”) has appealed from that decision,
arguing that the Immigration Judge erred in concluding that DHS’ proposed
remedies for a noncompliant notice to appear missing the date and time of
the hearing did not cure the defect under Matter of Fernandes, 28 I&N
Dec. 605 (BIA 2022).1 DHS’ appeal will be sustained, and the record will
be remanded.
1
The Board requested and received supplemental briefs from the parties and amici curiae.
We acknowledge with appreciation the briefs submitted by the parties and amici.
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I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of Cuba, was personally served with
a notice to appear on November 25, 2021. The notice to appear ordered the
respondent to appear at the San Antonio Immigration Court on “a date to be
set” at “a time to be [set].” The Immigration Court issued notices of hearing,
setting the initial hearing for June 23, 2022, at 9 a.m. and later rescheduling
it to June 28, 2022, at 9 a.m. The respondent attended the hearing and was
granted a continuance to hire counsel.
At the next hearing, the respondent appeared before the Immigration
Judge with counsel and entered pleadings denying the factual allegations and
the charge of removability. He also objected to the notice to appear because
it did not contain the date and time for the hearing, as required by section
239(a)(1)(G)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1229(a)(1)(G)(i) (2018).2 The Immigration Judge determined that the
respondent waived the objection to the notice to appear by his appearance at
a previous hearing and found the respondent removable as charged.
After the Board issued Matter of Fernandes, the respondent filed a
motion to terminate proceedings and renewed his objection to the
noncompliant notice to appear. The Immigration Judge found the objection
timely under Matter of Fernandes, 28 I&N Dec. at 610–11.
DHS sought to remedy the noncompliant notice to appear by one of the
following means: (1) filing a Form I-261, Additional Charges of
Inadmissibility/Deportability, which contained the hearing date and time
reflected on the first notice of hearing; (2) filing a copy of the first page of
the noncompliant notice to appear as an exhibit with a written amendment
reflecting the date and time of the respondent’s initial hearing as presented
on the first notice of hearing;3 and (3) requesting that the Immigration Judge
make the necessary written amendment to the date and time contained on the
noncompliant notice to appear. The respondent objected to the proposed
remedies. The Immigration Judge concluded that each of DHS’ proposed
remedies was improper and terminated the respondent’s removal
proceedings without prejudice. This appeal followed.
2
Section 239(a)(1)(G)(i) of the INA, 8 U.S.C. § 1229(a)(1)(G)(i), requires that a notice
to appear specify the “time and place at which the proceedings will be held.” (Emphasis
added.) We construe “time” as including the date of the hearing, and we will use “date and
time” interchangeably with “time” in this decision.
3
This type of written amendment is commonly referred to as a “pen and ink” amendment.
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II. DISCUSSION
A. Legal Background
Section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), provides that a
“written notice” in the form of “a ‘notice to appear’[] shall be given . . . to
the alien” in removal proceedings, specifying, among other things, “[t]he
time and place at which the proceedings will be held.” In Pereira v. Sessions,
585 U.S. 198 (2018), and Niz-Chavez v. Garland, 593 U.S. 155 (2021), the
Supreme Court of the United States held that a notice to appear that does not
comply with this requirement would not trigger the so-called “stop-time” rule
under section 240A(d)(1)(A) of the INA, 8 U.S.C. § 1229b(d)(1)(A) (2018),
which provides that “any period of continuous residence or continuous
physical presence” for purposes of cancellation of removal “shall be deemed
to end . . . when the alien is served a notice to appear under section 239(a)”
of the INA, 8 U.S.C. § 1229(a). In Niz-Chavez, 593 U.S. at 161, the Supreme
Court emphasized that “[t]o trigger the stop-time rule,” a notice to appear
must be a “single document” specifying the time and place of the hearing,
and a notice of hearing issued after a noncompliant notice to appear does not
cure the noncompliant notice to appear or trigger the stop-time rule.
Following Pereira and Niz-Chavez, the Board—agreeing with all the
courts of appeals that have addressed the matter—held that section 239(a)(1)
of the INA, 8 U.S.C. § 1229(a)(1), is not a jurisdictional requirement and that
noncompliant notices to appear do not affect the Immigration Court’s
jurisdiction over the removal proceedings. Matter of Arambula-Bravo,
28 I&N Dec. 388, 389–92 (BIA 2021), aff’d, No. 21-826, 2024 WL 1299986(9th Cir. Mar. 27, 2024). We affirmed this holding in Matter of Fernandes,
28 I&N Dec. at 607–09, and concluded that section 239(a)(1) of the INA,
8 U.S.C. § 1229(a)(1), is a claim-processing rule.
We further held that a respondent who has timely objected to a violation
of this claim-processing rule need not demonstrate that he or she was
prejudiced by the missing time or place information to obtain a remedy. See
Matter of Fernandes, 28 I&N Dec. at 610–13, 616. Although we rejected
the argument that the only appropriate remedy for a violation of this
claim-processing rule is the termination of proceedings, we left open the
question of the “precise contours of permissible remedies,” noting that “the
nature of the violation [should] inform the nature of the remedy.” Id. at
613–16. We recognized that DHS may request dismissal of proceedings
without prejudice and file a new notice to appear that complies with
section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), but held that an
Immigration Judge may also allow DHS to remedy a noncompliant notice to
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appear without ordering termination of removal proceedings. See id. at
614–16.
More recently, in Matter of Aguilar Hernandez, 28 I&N Dec. 774(BIA 2024), the Board held that DHS cannot remedy a noncompliant notice
to appear by filing a Form I-261. Specifically, the Board concluded that
8 C.F.R. § 1003.30 (2024), the regulation governing this form, does not
permit the form to be used to provide the time and place of a hearing.
Matter of Aguilar Hernandez, 28 I&N Dec. at 777–78. We also noted that
the use of a Form I-261 for this purpose would be inconsistent with the
“single document” requirement for a notice to appear set forth by the
Supreme Court in Niz-Chavez. See Matter of Aguilar Hernandez, 28 I&N
Dec. at 778–79 (quoting Niz-Chavez, 593 U.S. at 161).
The Supreme Court has recently addressed the issue of noncompliant
notices to appear in the context of in absentia orders of removal. In
Campos-Chaves v. Garland, 144 S. Ct. 1637, 1647 (2024), the Supreme
Court held that a respondent served with a noncompliant notice to appear
may be ordered removed in absentia under section 240(b)(5)(A) of the INA,
8 U.S.C. § 1229a(b)(5)(A) (2018), if the respondent received a notice of
hearing under section 239(a)(2) of the INA, 8 U.S.C. § 1229(a)(2), and
subsequently failed to appear at the hearing. See also Matter of Laparra,
28 I&N Dec. 425, 434 (BIA 2022), vacated in part sub nom. Laparra-Deleon
v. Garland, 52 F.4th 514 (1st Cir. 2022); Matter of Pena-Mejia, 27 I&N
Dec. 546, 548 (BIA 2019). The Supreme Court rejected the argument that
where a notice to appear did not specify the time and place of the proceedings
as required in section 239(a)(1)(G)(i) of the INA, 8 U.S.C.
§ 1229(a)(1)(G)(i), a notice of hearing cannot provide a “new” time or place
of the proceedings as required in section 239(a)(2)(A)(i) of the INA, 8 U.S.C.
§ 1229(a)(2)(A)(i). Campos-Chaves, 144 S. Ct. at 1650.
B. Criteria for Proper Remedy
Neither Matter of Fernandes nor Matter of Aguilar Hernandez defined
what would constitute a proper remedy for a notice to appear that is missing
time and place information, or how the remedy can be provided.
Nevertheless, these decisions, considered with the Supreme Court’s
decisions, illustrate the following essential criteria for a proper remedy.
1. Single Document
First, as emphasized by the Supreme Court’s decision in Niz-Chavez, the
remedy should result in a notice to appear as a single document. See
Niz-Chavez, 593 U.S. at 161-65.
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The single document requirement, however, does not mean that a
document, once submitted and filed, can never be amended. Although the
INA does not specifically provide for the amendment of a notice to appear,
neither does it specifically prohibit it. See INA § 239(a)(1), 8 U.S.C.
§ 1229(a)(1). We decline to construe the lack of specific provisions
concerning amendment of notices to appear as a prohibition. Many detailed
and specific procedural aspects of litigation are addressed by rules,
regulations, and general principles of litigation and jurisprudence, rather than
by statute. Therefore, general principles and jurisprudence regarding
litigation and amending of documents (especially case-initiating documents)
provide helpful guidance in this regard.
A notice to appear is a case-initiating document comparable to “an
indictment in a criminal case [or] a complaint in a civil case.” Niz-Chavez,
593 U.S. at 164 (alteration in original) (citation omitted). As we noted in
Matter of Fernandes, a defective civil complaint or criminal information may
be amended when necessary, rather than requiring a dismissal or termination
of the case. Matter of Fernandes, 28 I&N Dec. at 615; see, e.g., Fed. R.
Civ. P. 15 (allowing for amended and supplemental complaints); Fed. R.
Crim. P. 7(e) (providing that “the court may permit an information to be
amended at any time before the verdict or finding,” if certain conditions are
met); cf. Gonzalez v. Thaler, 565 U.S. 134, 146 (2012) (providing that where
a party timely objects to a defective certificate of appealability, “the court of
appeals panel must address the defect by considering an amendment to the
[certificate] or remanding to the district judge for specification of the
issues”). Federal courts have taken a liberal stance toward the amendment
of pleadings where it is consistent with their longstanding policy favoring the
resolution of disputes on the merits. See Amyndas Pharms., S.A. v. Zealand
Pharma A/S, 48 F.4th 18, 36 (1st Cir. 2022) (citing Foman v. Davis, 371 U.S.
178, 182 (1962)); United States ex rel. Nicholson v. MedCom Carolinas, Inc.,
42 F.4th 185, 197 (4th Cir. 2022); Mullin v. Balicki, 875 F.3d 140, 149
(3d Cir. 2017).
The possibility of amending a document, including a case-initiating
document, is inherent in the context of most litigation. Thus, we are not
persuaded that immigration court proceedings should be treated differently,
as neither the statute nor regulations prohibit an amendment to a notice to
appear.4
4
The Board and the Immigration Courts are Federal administrative courts that perform
quasi-judicial functions but are separate and apart from the Federal judiciary system
provided for in Article III of the United States Constitution. See Reno v. Flores,
507 U.S. 292, 308 (1993) (“The immigration judge is a quasi-judicial officer.”); Costa v.
INS, 233 F.3d 31, 33 n.1 (1st Cir. 2000) (recognizing that the “Immigration Court . . . is an
administrative court”); see also United States v. McLean, 891 F.3d 1308, 1311
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An amended or superseding document would not violate the single
document requirement. The notice of hearing found to violate the single
document requirement in Niz-Chavez does not purport to amend the notice
to appear. See INA § 239(a)(2), 8 U.S.C. § 1229(a)(2). Rather, it is a legally
separate document provided for in a different paragraph of section 239(a) of
the INA, 8 U.S.C. § 1229(a). In contrast, an amended or superseding
document may take the place of the original document to remedy a
noncompliant aspect of the original document, and may constitute a single,
compliant document.
The courts have generally held that an amended civil complaint
supersedes the original complaint. See, e.g., New Orleans Ass’n of Cemetery
Tour Guides & Cos. v. New Orleans Archdiocesan Cemeteries, 56 F.4th
1026, 1033 (5th Cir. 2023). Thus, the filing of a subsequent notice to appear
that complies with the statutory and regulatory requirements would allow
proceedings to continue without termination. Cf. United States v.
Rojas-Contreras, 474 U.S. 231, 237 (1985) (Blackmun, J., concurring) (“The
term ‘superseding indictment’ refers to a second indictment issued in the
absence of a dismissal of the first.”).
2. Remedy Consistent with Rules Governing Its Use
Second, any procedure or mechanism used to remedy a noncompliant
notice to appear should be consistent with the rules governing the use of such
procedure or mechanism. When a pleading is amended in civil or criminal
litigation, the specific procedure and manner of amending generally depend
on the timing and procedural posture of the case. For example, in Federal
civil litigation, a litigant may amend a complaint as of right within a set
number of days of the opposing party’s response, and after that period, by
(11th Cir. 2018) (recognizing that an Immigration Judge “exercises the authority of the
Attorney General . . . of the United States”); cert. denied, 139 S. Ct. 1374 (2019) (mem.).
Thus, analogy from the Article III context, while useful, cannot be perfect and cannot be
expected to address or resolve all issues arising in administrative proceedings such as
immigration proceedings. Immigration Court proceedings have several unique features
and procedures that are not shared with litigation in Article III court proceedings. Indeed,
as the respondent admits, the requirement of including the time and place of proceedings
in the notice to appear is one of the characteristics not found in Article III court
proceedings, as a case-initiating document in a civil or criminal case in the Federal court
is not required to provide such information. Compare Fed. R. Civ. P. 8(a) (contents of
complaint), and Fed. R. Crim. P. 7(c)(1) (contents of indictment), with Fed. R.
Civ. P. 16(b)(2) (providing that a judge must issue a scheduling order within a certain time
period of a civil defendant having been served with a complaint), and Fed. R. Crim P. 4(b)
(providing that a judge may issue a summons requiring the criminal defendant “to appear
. . . at a stated time and place”).
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leave of the court, Fed. R. Civ. P. 15(a)–(b), which should be “freely” granted
“when justice so requires.” Hoang v. Bank of America, N.A., 910 F.3d 1096,
1102 (9th Cir. 2018) (quoting Fed. R. Civ. P. 15(a)(2)).
In Matter of Aguilar Hernandez, 28 I&N Dec. at 778, the Board
concluded that the use of a Form I-261 to supply the missing date and time
was not a proper mechanism for remedy. The regulation governing the use
of this form provides that “[a]t any time during . . . removal proceedings,
additional or substituted charges of deportability and/or factual allegations
may be lodged by the [DHS] in writing.” 8 C.F.R. § 1003.30. Thus, the
plain regulatory language foreclosed DHS’ argument that this form could be
used to remedy a noncompliant notice to appear. Matter of Aguilar
Hernandez, 28 I&N Dec. at 777–78.
3. Promote the Purpose of the Claim-Processing Rule
Third, the remedy should help to promote the underlying purpose of
claim-processing rules in general as well as the particular claim-processing
rule at issue. The purpose of claim-processing rules in general is “to promote
the orderly progress of litigation by requiring that the parties take certain
procedural steps at specified times.” Matter of Fernandes, 28 I&N Dec. at
608 (quoting Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435
(2011)).
The particular claim-processing rule at issue here—the requirement in
section 239(a)(1)(G)(i) of the INA, 8 U.S.C. § 1229(a)(1)(G)(i), that a notice
to appear specify the “time and place at which the proceedings will be
held,”—promotes the orderly process of immigration proceedings in a
number of ways. It enables respondents to attend a scheduled hearing by
giving them notice of the time and place of the hearing. It also promotes the
respondents’ opportunity to secure counsel and helps the respondents ensure
the availability of counsel by ensuring that the hearing date shall not be
scheduled earlier than 10 days after the service of the notice to appear, unless
the respondent requests in writing an earlier hearing date. INA § 239(b)(1),
8 U.S.C. § 1229(b)(1). There is no such requirement for a notice of hearing.
See INA § 239(a)(2), 8 U.S.C. § 1229(a)(2).
4. Not Prejudice the Respondent
Fourth, the remedy should not prejudice the respondent. We held in
Matter of Fernandes, 28 I&N Dec. at 611–13, that a respondent objecting to
the violation of the claim-processing rule at section 239(a)(1)(G)(i) of the
INA, 8 U.S.C. § 1229(a)(1)(G)(i), does not have to show prejudice because
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the statute does not require it. A remedy that itself creates prejudice to the
respondents can hardly be characterized as a remedy.
In sum, we conclude that a proper remedy for a violation of the
claim-processing rule at section 239(a)(1)(G)(i) of the INA, 8 U.S.C.
§ 1229(a)(1)(G)(i), should (1) result in a notice to appear as a single
document; (2) be consistent with the rules governing the procedures used for
remedy; (3) help to promote the underlying purpose of claim-processing
rules generally and the rule that the notice to appear include the time and
place of the hearing in particular; and (4) not prejudice the respondent.
C. Remedies Proposed By DHS
The respondent timely objected to the noncompliant notice to appear
before the close of pleadings.5 Matter of Fernandes, 28 I&N Dec. at 610–11;
see also Pierre-Paul v. Barr, 930 F.3d 684, 693 n.6 (5th Cir. 2019)
(concluding that a respondent generally waives his challenge to a
noncompliant notice to appear by failing to raise this objection at the time he
concedes removability), overruled in part on other grounds by Niz-Chavez,
593 U.S. 155. Thus, he is entitled to a remedy.
DHS offered three possible remedies to the noncompliant notice to appear
at the hearing before the Immigration Judge: (1) filing a Form I-261;
(2) filing a copy of the first page of the noncompliant notice to appear as an
exhibit with a written amendment reflecting the date, time, and place of the
respondent’s initial hearing; and (3) requesting that the Immigration Judge
make the necessary written amendment to the date and time contained on the
noncompliant notice to appear. The Immigration Judge terminated
proceedings after concluding that the remedies offered by DHS did not
satisfy the single document requirement in Niz-Chavez and incorrectly
provided a date and time for a hearing that had already taken place. We
review the viability of these proposed remedies de novo. 8 C.F.R.
§ 1003.1(d)(3)(ii) (2024).
5
DHS argues for the first time in its supplemental appellate brief that the respondent
waived his objection to the noncompliant notice to appear because he filed a relief
application prior to making this objection. Before the Immigration Judge, DHS only
offered potential remedies for the noncompliant notice to appear and did not raise this
waiver argument, although it had an opportunity to do so. Because DHS did not raise this
argument before the Immigration Judge, it is not properly before us on appeal, and we
decline to consider it. See, e.g., Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 190
(BIA 2018) (“We have long held that we generally will not consider an argument or claim
that could have been, but was not, advanced before the Immigration Judge.”); Matter of
J-Y-C-, 24 I&N Dec. 260, 261 n.1 (BIA 2007) (declining to consider for the first time on
appeal a basis for asylum that was not raised below).
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1. Form I-261
DHS’ submission of a Form I-261 to supply the missing information is
not a proper remedy for the noncompliant notice to appear under the criteria
discussed above and under Matter of Aguilar Hernandez, which was
published after the Immigration Judge’s decision. This proposed remedy did
not result in a notice to appear as a single document and did not comply with
the regulations governing the use of the form. It also did not further the
purpose of the claim-processing rule because it did not provide notice of a
future hearing to the respondent so he could attend and retain counsel if he
chose to do so. We will now consider the remaining remedies proposed by
DHS.
2. DHS Submission of Amended Partial Notice to Appear
To remedy the noncompliant notice to appear, DHS also submitted, as an
exhibit, a copy of the first page of the notice to appear with handwritten
amendments to the street address for the San Antonio Immigration Court and
the date and time of the hearing. The document crossed out “a date to be set”
and “a time to be [set]” and provided June 28, 2022, at 9 a.m. as the date and
time of the hearing, which was the respondent’s initial master calendar
hearing. It only contained the first page of the notice to appear and did not
contain any other pages.
This is not a proper remedy for the claim-processing rule violation for
various reasons. First, the submission of the amended first page of the notice
to appear does not result in the notice to appear as a “single document” as
required in Niz-Chavez, 593 U.S. at 161. Although we agree with the
Immigration Judge that the proposed remedy fails the single document
requirement, we disagree with the Immigration Judge’s reasoning that it fails
because it introduces a second notice to appear into the record. Rather, it
fails because the amended first page does not include all the information
required by section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1). The
subsequent pages of the notice to appear provide information satisfying other
requirements set forth in section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1),
including notifying the respondent that he may be represented by counsel
during proceedings, that he must provide and update his contact information,
and that his failure to provide the required contact information or to appear
for proceedings will result in certain consequences. INA § 239(a)(1)(E)–(G),
8 U.S.C. § 1229(a)(1)(E)–(G). Thus, this remedy resembles
“notice-by-installment,” which was rejected by Niz-Chavez, 593 U.S. at
160–61, as contrary to the single document requirement.
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Second, this amended first page does not comport with the rules
governing the issuance of a notice to appear, as it does not appear to have
been authorized by a designated DHS official. The types of DHS officers
who can issue notices to appear are specifically determined by 8 C.F.R.
§ 239.1(a) (2024). The regulation specifically lists 45 different types of
officers authorized to issue a notice to appear and provides that this authority
can be delegated under 8 C.F.R. § 2.1 (2024). 8 C.F.R. § 239.1(a).
There is no dispute that the respondent’s notice to appear was initially
issued by a DHS officer whose name, signature, and title appear on the first
page of the notice to appear and who was authorized to issue the document.
The amended first page includes the same name, signature, and title of the
issuing officer, but there is no indication that this officer, or any other officer
designated in 8 C.F.R. § 239.1(a), authorized the amendment. See Ali v.
Gonzales, 435 F.3d 544, 546-47 (5th Cir. 2006) (recognizing that
“[c]onceptually, ‘issue’ is . . . more akin to ‘authorize’ than to the mechanics
of signature-affixing” and thus the question is whether the notice to appear
was authorized by a designated officer (quoting Diaz-Soto v. INS, 797 F.2d
262, 264 (5th Cir. 1986))).
Relying on 8 C.F.R. § 1240.10(e) (2024), DHS suggests that although a
notice to appear can only be issued by an officer specified in 8 C.F.R.
§ 239.1(a), it may be amended by DHS counsel handling the case once the
removal proceedings commence. However, 8 C.F.R. § 1240.10(e), which is
similar to the provision at issue in Matter of Aguilar Hernandez, applies to
the addition or substitution of charges of inadmissibility or deportability and
of factual allegations through a Form I-261, which we previously held cannot
remedy a noncompliant notice to appear. Matter of Aguilar-Hernandez,
28 I&N Dec. at 777–78.
We are further unpersuaded by DHS’ analogy to 8 C.F.R. § 239.2 (2024).
Under this regulation, while only DHS officers authorized to issue a notice
to appear may cancel the notice unilaterally, once the notice to appear is filed
with the Immigration Court and jurisdiction is vested with the Immigration
Judge, the regulations specifically provide that DHS counsel may move for
dismissal of the matter. 8 C.F.R. §§ 239.2(a), (c), 1239.2(c). Dismissal of
the proceedings, however, does not involve an amended notice to appear.
Moreover, an amended notice to appear that meets the requirement for a
single document would, in essence, be a superseding notice to appear, which
DHS concedes should be issued by an officer specified in 8 C.F.R. § 239.1(a).
While we recognize DHS’ argument regarding the time and labor
involved in returning a case to an official authorized to issue a
notice to appear under 8 C.F.R. § 239.1(a), the Supreme Court has long
made clear that practical considerations and pleas of administrative
inconvenience do not justify noncompliance with procedural obligations.
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See Niz-Chavez, 593 U.S. at 169 (providing that “pleas of administrative
inconvenience and self-serving regulations never ‘justify departing from the
statute’s clear text’” (quoting Pereira, 585 U.S. at 217)); Pereira, 585 U.S.
at 217 (rejecting the agency’s “practical considerations” as meritless).
Moreover, as noted above, the Secretary of Homeland Security is permitted
to delegate authority to issue notices to appear to other officers and
employees of DHS or of the United States not explicitly listed in the
regulation at 8 C.F.R. § 239.1(a), which could potentially include DHS
counsel who appear in Immigration Court. See 8 C.F.R. §§ 2.1, 239.1(a)(46).
Third, the amended first page submitted by DHS is not a proper remedy
for a claim-processing rule violation because it does not promote the goal of
the claim-processing rule at section 239(a)(1)(G)(i) of the INA, 8 U.S.C.
§ 1229(a)(1)(G)(i). The statute at issue requires that the notice to appear
advise the respondents of the “time and place at which the proceedings will
be held.” INA § 239(a)(1)(G)(i), 8 U.S.C. § 1229(a)(1)(G)(i) (emphasis
added). The use of the future tense indicates that the date and time provided
in the document should be for a future hearing. Section 239(b) of the INA,
8 U.S.C. § 1229(b), further provides that a hearing will not be scheduled
earlier than 10 days after the service of the notice to appear to enable the
respondent to secure counsel if desired. Thus, the statute clearly requires that
a notice to appear contain a future date—not a date already passed or the date
of a past hearing—to enable the respondent to attend the future hearing with
counsel if desired. Because the document submitted by DHS did not include
a future date, it did not promote the goal of providing notice to the respondent
to enable him to attend a hearing or secure counsel for the hearing. Thus,
DHS’ submission of an amended first page of the notice to appear does not
meet the criteria for a proper remedy.6
3. DHS Motion for Immigration Judge to Amend Notice to Appear
6
Our decision does not foreclose DHS from fashioning a proper remedy through a
superseding or amended notice to appear as discussed in section II.B.1, supra. See Matter
of Fernandes, 28 I&N Dec. at 615 (raising the possibility of an amended notice to appear).
The new document would need to include all the information set forth in section 239(a)(1)
of the INA, 8 U.S.C. § 1229(a)(1), and be issued by a DHS official specified in 8 C.F.R.
§ 239.1(a). The authorizing official need not be the same officer who issued the original
notice to appear or be an officer or employee within the same component of DHS that
authorized the original notice to appear. The superseding or amended notice to appear
could be admitted into the record of proceeding as a separate exhibit. As noted above, the
presence of two notices to appear in a record of proceeding would not violate the “single
document” requirement set forth by the Supreme Court in Niz-Chavez, 593 U.S. at 161, as
long as one single document contains all the information required under section 239(a)(1)
of the INA, 8 U.S.C. § 1229(a)(1). Such a document may constitute a proper remedy for a
noncompliant notice to appear if it does not result in prejudice to the respondent.
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Finally, DHS proposed as a remedy that upon a motion, the Immigration
Judge make written amendments to the notice to appear by adding the date
and time of a future hearing. We conclude upon de novo review that this
proposed remedy satisfies the criteria delineated in this decision for a proper
remedy of the claim processing rule at section 239(a)(1)(G)(i) of the INA,
8 U.S.C. § 1229(a)(1)(G)(i). See 8 C.F.R. § 1003.1(d)(3)(ii). First, because
the written amendment would be made on the notice to appear already in the
record, this proposed remedy would not result in a separate document, and
the amended notice to appear would have all the information required in
section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1). As to the date to be
provided in the amendment, the notice to appear may be amended to include
a future hearing date no fewer than 10 days after the date the amended notice
to appear is served.
Second, this proposed remedy is consistent with the Immigration Judge’s
broad authority to grant motions to amend documents in removal
proceedings. The respondent argues that because the date and time
requirement in section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), is unique
to case-initiating documents in immigration proceedings, this information
cannot be amended or supplemented. The respondent, however, points to no
statutory or regulatory authority prohibiting an amendment or
supplementation of the contents of the notice to appear, including the time
and place of the hearing, merely because case-initiating documents for other
types of proceedings do not include this requirement.
As we noted in Matter of Fernandes, 28 I&N Dec. at 613–14, the
claim-processing rule at section 239(a)(1) is not jurisdictional and relates to
matters within an Immigration Judge’s authority. Thus, it follows that an
Immigration Judge may exercise judgment and discretion to enforce that rule
as he or she deems appropriate to promote the rule’s underlying purpose. See
8 C.F.R. § 1003.10(b) (2024) (“[I]mmigration judges shall exercise their
independent judgment and discretion and may take any action consistent with
their authorities under the [INA] and regulations that is necessary or
appropriate for the disposition . . . of such cases.”); see also 8 C.F.R.
§ 1240.1(a)(1)(iv) (2024). Such authority, where appropriate and necessary,
includes the authority to grant the parties’ motions to amend pleadings,
applications, and other documents. See, e.g., Lima v. Holder, 758 F.3d 72,
81–82 (1st Cir. 2014) (recognizing an Immigration Judges’ discretionary
authority to permit a respondent to amend pleadings).
In granting DHS’ request that the Immigration Judge amend the notice to
appear, the Immigration Judge would not be “issuing” a notice to appear
within the meaning of 8 C.F.R. § 239.1(a)(1). Rather, the Immigration Judge
would be amending the notice to appear that was already issued and filed,
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consistent with the Immigration Judge’s broad authority to grant motions to
amend in removal proceedings. Indeed, in practice, Immigration Judges
routinely amend notices to appear upon the motion of a party to correct
typographical errors or to amend factual allegations. Similarly, Immigration
Judges amend applications for relief to correct or update information
contained therein.
Moreover, the date and time of the hearing is information that is
exclusively controlled and provided by the Immigration Court. While other
contents of the notice to appear, such as factual allegations and charges of
removability, are based on information belonging to the parties, the date and
time for the hearing is solely determined by the Immigration Court and can
only be included on the notice to appear through procedures established by
the Immigration Court. Thus, by amending the date and time on a notice to
appear, the Immigration Judge is amending the Immigration Court’s own
previously provided information.
Third, the Immigration Judge’s amendment of a notice to appear upon the
motion of DHS would be generally consistent with the purpose of the
claim-processing rule at section 239(a)(1)(G)(i) of the INA, 8 U.S.C.
§ 1229(a)(1)(G)(i). The proposed remedy provides notice to the respondents
to enable them to attend the future hearing and secure counsel. Once the
notice to appear is amended, it can be served on the respondent in person at
the hearing or by mail, as appropriate.7 Thus, the remedy would also advance
the general purpose of claim-processing rules to “promote the orderly
progress of litigation.” Matter of Fernandes, 28 I&N Dec. at 608 (quoting
Henderson, 562 U.S. at 435).
This remedy is also consistent with the Supreme Court’s decision in
Campos-Chaves, which addressed noncompliant notices to appear in in
absentia proceedings. The Supreme Court held that a respondent who
received a noncompliant notice to appear followed by a notice of hearing
must attend the hearing, and at the hearing can raise issues regarding the
noncompliant notice to appear. Campos-Chaves, 144 S. Ct. at 1651. The
Court noted that this would “give[] the immigration judge a chance to
reschedule the hearing to cure any prejudice from the missing information.”
Id.
7
The practical logistics of providing the remedy would depend on the Immigration
Court’s procedures and the circumstances of the case, including whether the record of
proceedings is in paper or electronic format. For example, upon timely objection to the
noncompliant notice to appear by the respondent, DHS could make a written or oral motion
to amend the notice to appear and, once the notice to appear is amended by the Immigration
Judge, the compliant notice to appear could be included in the record of the proceedings
by appropriate means and served on the parties.
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The respondent and some amici argue that termination or dismissal of the
proceedings is the only proper remedy for a violation of the claim-processing
rule at section 239(a)(1)(G)(i) of the INA, 8 U.S.C. § 1229(a)(1)(G)(i),
because DHS should have issued a compliant notice to appear in the first
place. In Matter of Fernandes, 28 I&N Dec. at 613–16, we rejected this
argument, holding that termination of the proceedings is not required, and
the Immigration Judge may allow DHS to remedy the noncompliant notice
to appear. For the reasons discussed in Matter of Fernandes, we reaffirm
this holding.
We are not persuaded by the respondent’s general arguments that
permitting a notice to appear to be remedied would disadvantage the
respondent because of the complexities of removal proceedings. While the
requirement that a notice to appear include the time and place of the hearing
serves an important goal, as discussed above, the burden on respondents
whose removal proceedings are initiated by a noncompliant notice to appear
is similar to the burden placed on those in proceedings that are initiated by a
compliant notice to appear. For example, regardless of whether a
respondent’s notice to appear specifies the date and time of the hearing, the
respondent has an ongoing obligation under section 239(a)(1)(F) of the INA,
8 U.S.C. § 1229(a)(1)(F), to notify the Immigration Court of a change of
address because the hearing date on the notice to appear may be changed
through a subsequently mailed notice of hearing.8 See INA § 239(a)(2),
8 U.S.C. § 1229(a)(2).
Overall, we conclude that written amendments made by an Immigration
Judge, upon the motion of DHS, to the time and place of the hearing on the
notice to appear may satisfy the requirements for a proper remedy to a
noncompliant notice to appear. Whether the remedy satisfies the fourth
requirement that it not prejudice the respondent requires a case-by-case
determination. A respondent who believes he or she is prejudiced by the
proposed remedy can object to the remedy, either orally or in writing in
response to DHS’ motion to amend. If the Immigration Judge determines
that the respondent has established that the remedy proposed by DHS results
in prejudice, a different date, time, and place may be provided, or the
Immigration Judge may take other necessary and appropriate action to
address the prejudice. Moreover, if any circumstances that would prevent
the respondent and counsel from attending the hearing were to arise after the
8
The respondent also argues that the lack of the date and time of the hearing in the notice
to appear places respondents at the risk of being subject to in absentia orders of removal.
However, the statute and regulation provide procedures for rescinding in absentia orders
of removal. INA § 240(b)(5)(C)(ii), 8 U.S.C. § 1229a(b)(5)(C)(ii); 8 C.F.R.
§ 1003.23(b)(4)(ii) (2024); see also Campos-Chaves, 144 S. Ct. at 1647–51 (discussing
noncompliant notices to appear in the context of in absentia removal orders).
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compliant notice to appear is served, the parties may request a continuance
consistent with the regulations and the Immigration Court’s procedures. See
8 C.F.R. § 1003.29 (2020); see also Matter of L-A-B-R-, 27 I&N Dec. 405,
411–13 (A.G. 2018) (discussing the requirement of showing good cause for
a continuance).
III. CONCLUSION
The requirement that a notice to appear specify the time and place of the
hearing is not a jurisdictional rule. Rather, it is a claim-processing rule that
can and should be remedied where possible. We decline to establish a
procedural rule that would disallow remedying a noncompliant notice to
appear and limit the jurisdiction bestowed by Congress upon the Immigration
Court and the Board. This decision addresses the specific remedies proposed
by DHS in this case and does not foreclose the possibility of additional
permissible remedies that comply with the four criteria discussed above.
Based on the foregoing, we will uphold the Immigration Judge’s decision
rejecting DHS’ proposed remedies of a Form I-261 and an amended first
page of the notice appear, as these remedies do not comply with the criteria
set forth in this decision. However, with respect to DHS’ third proposed
remedy, we will sustain the appeal, vacate the Immigration Judge’s decision,
and remand the record for further proceedings consistent with our decision.
ORDER: DHS’ appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing order and for the
entry of a new decision.
842