Timing of Objections to Deficient Notices to Appear

On April 29, 2021, the Supreme Court of the United States published a decision in Niz-Chavez v. Garland, 141 S.Ct. 1474 (2021) [PDF version]. The Court ruled that in order for a Notice to Appear to trigger the “stop-time rule” — which halts the accrual of continuous physical presence toward eligibility for non-permanent cancellation of removal (see INA 240A(b) and 240A(d)(1)) — the Notice to Appear must include all of the information specified in INA 239(a)(1), including “[t]he time and place at which the proceedings will be held” (239(a)(1)(G)(i)).

(See our related articles on deficient Notices to Appear.)

Following Niz-Chavez, the Board of Immigration Appeals published a precedential decision in Matter of Nchifor, 28 I&N Dec. 585 (BIA 2022) [PDF version]. The alien respondent in Matter of Nichifor had applied for admission without valid immigration documents. The Department of Homeland Security (DHS) served the respondent with a Notice to Appear on October 9, 2019. The Notice to Appear did not specify the time and date of the respondent's removal hearing, but the Jena Immigration Court subsequently issued a Notice of Hearing informing the respondent that his first hearing would take place at that Court on December 20, 2019. The respondent appeared at his hearing and appeared at subsequent hearings in accordance with notices of hearing that specified the dates of those hearings. However, the respondent was never issued a Notice to Appear that specified the time and date of his removal hearing(s). The respondent was ordered removed on April 2, 2020, after the immigration judge adjudicated him removable as charged and denied his applications for relief from removal. The Board denied the respondent's appeal of the decision on May 11, 2021.

On June 16, 2021, the respondent timely filed a Motion to Reopen his removal proceedings in light of the Supreme Court's decision in Niz-Chavez. The respondent's motion was premised on the assertion that Niz-Chavez represented a change in law that warranted the termination of his removal proceedings.

The Board rejected the respondent's claim to the extent that the respondent argued that his motion to reopen and terminate proceedings should be granted on account of missing time and place information in his Notice to Appear. Following controlling precedent in Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019) [PDF version] (Matter if Nichifor arose within the jurisdiction [see article] of the Fifth Circuit), the Board held:

A respondent who raises an objection to missing time or place information in a notice to appear for the first time in a motion to reopen has forfeited that option.

The Board concurred with the Fifth Circuit's position in Pierre-Paul that the regulatory requirement for a Notice to Appear is a claim-processing rule rather than a jurisdictional rule. As a result, the Board agreed with the Fifth Circuit's conclusion that “any alleged defect with the charging document must be raised properly and can be forfeited if the [respondent] waits too long to raise it.” Matter of Nichifor, 28 I&N Dec. at 587, quoting Pierre-Paul, 930 F.3d at 693. With respect to proceedings involving the Board, the Board held that a respondent cannot raise a claim regarding the validity of a Notice to Appear as a charging document in the first instance in a Motion to Reopen. Moreover, the Board concluded that Niz-Chavez did not disturb the Fifth Circuit's central holding regarding claim-processing claims in Pierre-Paul.

The Board applied its ruling in Nichifor to all cases arising outside the jurisdiction of the United States Court of Appeals for the Seventh Circuit (Illinois, Indiana, and Wisconsin), which has held that claim-processing objections are “available for those who make timely objections, as well as those whose timing is excusable and who can show prejudice.” Matter of Nichifor, 28 Dec. at 588, quoting Ortiz-Santiago v. Barr, 924 F.3d 956, 965 (7th Cir. 2019) [PDF version]. While the Board disagreed with the Seventh Circuit's precedent, it acknowledged that it is bound to follow it in cases arising in the jurisdiction of the Seventh Circuit.

However, the Board found that one claim based on Niz-Chavez remained open to the respondent. Niz-Chavez dealt specifically with the effect of a deficient Notice to Appear on an alien's accrual of continuous physical presence counting toward eligibility for non-permanent resident cancellation of removal. While cancellation of removal was not at issue in Matter of Nichifor, the Board noted that the deficient Notice to Appear “[did] not preclude [the respondent] from accruing the requisite period of physical presence for purposes of voluntary departure at the conclusion of removal proceedings for purposes of section 240(B)(b) of the INA.” The Board recently held in Matter of M-F-O, 28 I&N Dec. 408 (BIA 2021) [PDF version] that a Notice to Appear that does not specify the time and place of the respondent's removal hearing does not halt an alien's accrual of physical presence under INA 240(B)(b)(1)(A) for purpose of eligibility for voluntary departure. In reaching this result, the Board expressly followed the logic of Niz-Chavez.

Thus, the Board granted the respondent's Motion to Reopen and Remand in Nichifor for the purpose of allowing the immigration judge to consider the respondent's eligibility for voluntary departure under section 240B(b) of the INA.

The Board's decision in Matter of Nichifor seeks to clarify the scope of the logic of the Supreme Court's important decision in Niz-Chavez. The Board found that Niz-Chavez did not, in and of itself, change the rules for challenging deficient Notices to Appear outside the context of halting the accrual of physical presence in the United States — which implicates forms of relief such as non-permanent resident cancellation and voluntary departure. Thus, the Board concluded that other than in the jurisdiction of the Seventh Circuit, an alien cannot raise a claim regarding the validity of a Notice to Appear outside of the scenarios covered by Niz-Chavez and Matter of M-F-O in the first instance in a Motion to Reopen.

As always, we recommend that individuals in removal proceedings consult with an experienced immigration attorney throughout the removal process. An attorney will be able to assist the individual in raising potential claims in an expeditious manner in proceedings. Niz-Chavez is still a relatively new Supreme Court decision, and we expect it to be subject to continued litigation in the immigration court system and Federal appellate courts.