The saga of Niz-Chavez v Garland, 141 S. Ct. 1474 (2021), and Pereira v Sessions, 138 S. Ct. 2105 (2018) continues . . .
At a hearing on January 8, 2024, the Supreme Court heard arguments on two additional cases arriving out of similar sets of facts for the respondents in Pereira and Niz-Chavez:
The appellants in the new cases had received NTAs which lacked a date and time of the hearing. At issue was whether those appellants, even though not seeking cancellation of removal – could make a claim that their notices to appear were insufficient, and therefore, the NTAs were invalid and their cases should be terminated.
In these two consolidated cases, Campos-Chaves v Garland (#22-674) and Garland v Singh and Mendez-Colin, (#22-884), the Supreme Court is once again revisiting the issue of whether an NTA that contains no date and time is a defective NTA.
A ruling will issue this term.
In other related news, the board of immigration appeals issued a decision on January 31, 2024, in Matter of Aguilar-Hernandez, I&N Dec. 774 (BIA 2024). In Aguilar-Hernandez, a three-judge panel of the board held that the Department of Homeland Security could not correct an NTA which lacked a date and time simply by filing a “Form I-261, additional charges of inadmissibility/deportability.”
Let’s not get all excited here – this doesn’t mean that the Board has finally accepted that all NTAs which lack a date and time are automatically defective. The Board of Immigration Appeals simply said that the DHS could not correct a defective NTA – one that lacked a date and time – by filing a Form I-261 containing the appropriate date and time by serving the new form on the respondent. In the case on point, Form I-261 attempted to remedy the initial faulty NTA by ordering the respondent to appear before the Santa Ana immigration court on “March 24, 2023 at 8 AM.” It also went on to state that the initial hearing date was May 13, 2019 at the Adelanto immigration court.
What the BIA said was that the DHS could not amend the NTA by filing a Form I-261. The board continues to hold to its decision in Matter of Fernandes, which instructed the immigration judge to grant time for the DHS to amend its pleadings (i.e., issue a new NTA) rather than dismiss the case entirely. See, Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022).
Consequently, while the decision in Matter of Aguilar-Hernandez certainly needs to be celebrated, it is not by any means the board’s blanket approval and acceptance of the Supreme Court’s rulings in the Niz-Chavez and Pereira cases.
Hopefully, given that the Supreme Court is now considering the two cases mentioned above – Campos-Chaves v Garland and Garland v Singh and Mendez-Colin, we will have some resolution of this issue by the close of the Supreme Court’s current term in June or July of 2024. Notice I did not say “final” resolution!
Stay tuned!
© Farhad Sethna, Attorney, 2024
Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to farhad@sethnalaw.com. We will try to answer as many questions as possible.