Viewing entries tagged
Notice to Appear

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Ninth Circuit Remands Motion to Reopen In Absentia

Two years ago, the Ninth Circuit determined that a court may not issue an in absentia removal order when the Notice to Appear is missing the time and date of the first removal hearing. “We grant Singh’s petition and hold that noncitizens must receive a Notice to Appear in a single document specifying the time and date of the noncitizen’s removal proceedings, otherwise any in absentia removal order directed at the noncitizen is subject to rescission pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii).” The court rejected the Board’s contrary determination in Matter of Laparra.

The full text of Singh v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/04/20-70050.pdf

On remand from the Supreme Court (which rejected the Ninth Circuit’s analysis about the implications of a Notice to Appear missing the first hearing information as it relates to issuance of an in absentia removal order), the Ninth Circuit again remanded this petition for review to the agency, noting the agency failed to consider the totality of the circumstances, including his eligibility for relief, the advancement of his hearing date by the court system, and the role his attorney played.

An updated decision can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/17/20-70050.pdf

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Seventh Circuit Lays Out Timeliness Factors for Objections to Incomplete NTAs

The Seventh Circuit has laid out a number of factors to assess when determining if a petitioner made a timely objection to a Notice to Appear that was lacking the time and date of the first hearing. These factors include: how much time passed, in absolute terms, between the receipt of the Notice and the raising of the objection; did the immigration court set a schedule for filing objections, and did the objection comply with that schedule; and how much of the merits had been discussed or determined prior to the objection? In addition, the court may consider: if the recipient does not speak English, did she object promptly after receiving adequate translation services and notice; did the person have legal counsel at the outset, and if she obtained counsel only later, did counsel object promptly after entering the case; and did the noncitizen file any prior objections but omit this objection?

The full text of Arreola-Ochoa v. Garland can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2022/D05-17/C:21-1179:J:Wood:aut:T:fnOp:N:2877448:S:0

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Ninth Circuit Finds In Absentia Precluded by Incomplete NTA

The Ninth Circuit has determined that a court may not issue an in absentia removal order when the Notice to Appear is missing the time and date of the first removal hearing. “We grant Singh’s petition and hold that noncitizens must receive a Notice to Appear in a single document specifying the time and date of the noncitizen’s removal proceedings, otherwise any in absentia removal order directed at the noncitizen is subject to rescission pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii).” The court rejected the Board’s contrary determination in Matter of Laparra.

The full text of Singh v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/04/20-70050.pdf

On remand from the Supreme Court (which rejected the Ninth Circuit’s analysis about the implications of a Notice to Appear missing the first hearing information as it relates to issuance of an in absentia removal order), the Ninth Circuit again remanded this petition for review to the agency, noting the agency failed to consider the totality of the circumstances, including his eligibility for relief, the advancement of his hearing date by the court system, and the role his attorney played.

An updated decision can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/17/20-70050.pdf

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BIA Declines to Rescind In Absentia Order Premised on Defective NTA

The Board of Immigration Appeals has determined that an in absentia removal order need not be reopened when the respondent was served with a Notice to Appear missing the time and date of the first hearing, but also served with a Notice of Hearing containing that information. The Board acknowledged that its decision is inconsistent with the Fifth Circuit’s recent decision in Rodriguez v. Garland.

The full text of Matter of Laparra can be found here:

https://www.justice.gov/eoir/page/file/1463551/download

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BIA Finds that NTA Lacking Address of Court is not Jurisdictionally Defective

The Board of Immigration Appeals (BIA) has determined that a “notice to appear that does not include the address of the Immigration Court where the Department of Homeland Security will file the charging document, or include a certificate of service indicating the Immigration Court in which the charging document is filed, does not deprive the Immigration Court of subject matter jurisdiction.” Instead, the BIA concluded that the regulations at issue are “claim-processing” or “internal docketing” rules, which do not implicate subject matter jurisdiction, and that a deficiency in the notice to appear can be remedied by providing the information required by the regulations in a later notice of hearing.

In so doing, the BIA equated the address of the court where the charging document will be filed with the “place” of the first hearing, and found that its prior decision in Bermudez Cota already noted that a subsequent hearing notice could cure the missing location of a first hearing. While the BIA noted that a timely objection can be raised to a claim-processing violation (and that the respondents in this matter did so), it found no prejudice to the respondents, and declined to terminate proceedings.

The full text of Matter of Rosales Vargas can be found here:

https://www.justice.gov/eoir/page/file/1233181/download

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