Introduction
On December 21, 2018, Executive Office of Immigration Review (EOIR) Director James McHenry published policy guidance to all EOIR components titled “Acceptance of Notices to Appear and Use of the Interactive Scheduling System” [PDF version]. The guidance addresses a variety of issues involving Notices to Appear and immigration proceedings in the aftermath of the United States Supreme Court of ‘ decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018) [PDF version], wherein the Court held that a putative notice to appear which does not include the date and place of the initial removal hearing does not trigger the stop-time rule for cancellation of removal.
In this article, we will examine Director McHenry’s December 21, 2018 guidance on notices to appear. Please see our article index on Pereira v. Sessions [see index] and our article on the Pereira decision specifically [see article] to learn about related issues involving notices to appear in the post-Pereira environment.
Explanation of Issues
Director McHenry explained that “[t]he initiation of removal proceedings generally involves two steps.” These steps are as follows:
1. “[A] component of the Department of Homeland Security (DHS) … serves an individual with a Notice to Appear … alleging that person’s removability from the United States.”
2. “DHS files that [Notice to Appear] with an immigration court.”
Under 8 C.F.R. 1003.14(a), jurisdiction over removal proceedings does not vest with the immigration judge until the Notice to Appear is filed with the immigration court. As a result, “although DHS may serve the [Notice to Appear] to an individual with a time and date for a hearing on it, the immigration court does not actually acquire jurisdiction-and, thus, the case is not actually ‘scheduled’ and no record of proceedings exists-until DHS files the [Notice to Appear] with the court.”
Post-Pereira Guidance
After the Supreme Court published its decision in Pereira, the “EOIR began providing dates and times directly to DHS to use on [Notices to Appear] for some non-detained cases while it worked to provide access to DHS to its Interactive Scheduling System…” At the time of the publication of the McHenry memorandum, the EOIR had provided dates to DHS for such cases through January 31, 2019. In a footnote, Director McHenry explained that EOIR had initially tried to use the Interactive Scheduling System for detained cases in the aftermath of Pereira, but it abandoned the effort due to logistical difficulties. Instead, the “EOIR provides hearing dates directly to DHS for use on [Notices to Appear] for detained cases and will continue to do so.”
Director McHenry stated that as of December 21, 2018, all three DHS components — United States Customs and Border Protection (CBP), United States Immigration and Customs Enforcement (ICE), and United States Citizenship and Immigration Services (USCIS) — have access to the EOIR’s Interactive Scheduling System. For that reason, EOIR ceased providing initial hearing dates to DHS in non-detained cases for use on Notices to Appear after January 31, 2019. Thus, the CBP, ICE, and USCIS may use the Interactive Scheduling System to enter initial hearing dates on Notices to Appear in non-detained cases — although the Board held in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018) [PDF version] — which we discuss in an article on site [see article] — that a deficient Notice to Appear lacking the initial hearing date and time may nevertheless vest jurisdiction over removal proceedings in the immigration court under certain circumstances.
Director McHenry explained, however, that the EOIR will reject any Notices to Appear “in which the time or date of the scheduled hearing is facially incorrect…” For example, “a hearing scheduled on a weekend or holiday or at a time when the court is not open.”
There are certain circumstances in which the failure on the part of the DHS to properly file the Notice to Appear with the immigration court after entering a time and date for the initial hearing may scuttle the proceedings. First, if the DHS fails to file the Notice to Appear with the immigration court as of the time and date of the initial removal hearing, the “EOIR will classify that case as a ‘failure to prosecute.’” The EOIR will reject the Notice to Appear if the DHS attempts to file it after the time and date of the hearing listed on the Notice to Appear. In such cases, the DHS would be required to re-serve the alien with a new Notice to Appear and then properly file the new Notice to Appear — in a timely manner — with the immigration court.
In cases where the DHS files the Notice to Appear within 10 calendar days of the first scheduled hearing, the immigration judge has the discretion to either proceed with the hearing as scheduled or to reschedule the case. Director McHenry provided that “[t]he case may be rescheduled if there is not sufficient time to process the NTA or sufficient docket space for it on the scheduled date.” If the immigration judge opts to reschedule the hearing, the immigration court “will endeavor to notify the respondent as quickly as possible of that decision.”
Conclusion
Director McHenry’s December 2018 memorandum provides important guidance on how the EOIR will look at Notices to Appear post-Pereira. The EOIR has made changes to make it easier for the DHS to enter the time and date for initial removal hearings in non-detained cases on its own initiative. The EOIR will reject Notices to Appear filed by the DHS after the time and date for the initial hearing listed on the Notice to Appear. The EOIR also retains discretion to reschedule removal hearings when the DHS files the Notice to Appear within 10 calendar days of the initial hearing. The McHenry memorandum does, however, recognize the BIA precedent in Matter of Bermudez-Cota that under certain circumstances, the filing of a Notice to Appear without the time and date of the initial removal hearing suffices for vesting jurisdiction over the removal proceedings in the immigration court.
An alien facing removal proceedings should consult with an experienced immigration attorney immediately for an assessment and case-specific guidance.
