Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022)

On August 4, 2021, the Board of Immigration Appeals (BIA) held that the Immigration Judge erred in denying the plaintiff’s motion to terminate based on receiving defective notice.  

The BIA decision states that “On March 1, 2021, the Department of Homeland Security (“DHS”) personally served a notice to appear on the respondent. The notice to appear ordered the respondent to appear before an Immigration Judge at the Boston Immigration Court at a date and time “to be set”…At the May 6, 2021, hearing, the respondent expressly declined to concede proper service of the notice to appear and requested an opportunity to submit a motion to dismiss because the notice to appear did not specify the date and time of the initial hearing.”

“The Immigration Judge did not address the adequacy of the notice to appear.  Instead, he found that the respondent was removable as charged and afforded him an opportunity to submit a written brief.  On May 25, 2021, the respondent filed a motion…arguing that the notice to appear was defective because it lacked date and time information.  DHS filed an opposition to the motion. On June 17, 2021, the Immigration Judge denied respondent’s motion and ordered him removed.”

The BIA remanded the case to the Immigration Judge to remedy the deficient notice to appear based on the following:  

“(1) The time and place requirement in section 239(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(1) (2018), is a claim-processing rule, not a jurisdictional requirement.

(2) An objection to a noncompliant notice to appear will generally be considered timely if it is raised prior to the closing of pleadings before the Immigration Judge.

(3) A respondent who has made a timely objection to a noncompliant notice to appear is not generally required to show he or she was prejudiced by missing time or place information.

(4) An Immigration Judge may allow the Department Homeland Security to remedy a noncompliant notice to appear without ordering the termination of removal proceedings.”