In Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022), a three-member panel on the board of immigration appeals (BIA) held, in a two – one decision, that indeed, alien respondents could claim that a Notice to Appear was deficient, as long as such claim was made prior to the conclusion of pleadings being taken before the immigration judge.
However, such a claim would not lead to termination of the removal case but would allow an immigration judge to give the Department of Homeland Security time to remedy the defective Notice to Appear by issuing a new NTA.
This decision is flawed for a number of reasons.
First, it does not address what happens to all the cases, in which pleadings were already taken well before the Fernandes decision. It also does not address cases where the matter might already be terminated, and DHS has not issued a new notice to appear. Finally, the BIA once again raises the issue of “claims processing” versus “jurisdictional” rules, while the underlying Supreme Court decisions in Pereira v Sessions, 138 S. Ct. 2105 (2018), Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), make no mention of jurisdictional versus claims processing rules.
The one clarity from the Fernandes decision is that it is clear that an alien may raise this defense in a removal proceeding, and that the DHS may remedy a defective NTA. Obviously, it is up to the DHS to remedy the NTA within such time as would be allowed by the immigration judge, or else the proceedings should be terminated if a compliant NTA is not issued. Nevertheless, the Fernandes decision does not clarify that IJs could – and should – dismiss cases if new NTAs are not filed.
There is definitely more to come on the matter of termination of removal cases due to defective NTAs under both the Pereira and Niz-Chavez decisions, as the board fine-tunes its approach to these cases.
For now, with the Fernandes decision, the board has cracked open its previous hard-line approach. Now, motions to terminate under Pereira and Niz-Chavez are limited not only to cases where the 10 year statute of limitations would have run for the purpose of filing applications for cancellation of removal but for the service of the defective NTA. The Fernandes decision swings open that door just a little bit, to allow for respondents to assert a defective NTA in ALL circumstances, as long as the defect is raised before pleadings are completed.
© Farhad Sethna, Attorney, 2022
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 AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.