Ninth Circuit Finds Incomplete NTA Presents Claim Processing Rule

The Ninth Circuit, sitting en banc, has again determined that a Notice to Appear lacking information about the first removal hearing does not deprive the immigration court of jurisdiction. However, the court also recognized that the failure to meet the regulatory requirement to include this information in the regulations is a claim processing rule violation. “The only sensible way to read 8 C.F.R. § 1003.14(a), then, is as a docketing rule whose function extends no further than providing for the orderly administration of proceedings, including deportation proceedings, before the immigration judges.”

Notably, the court did not discuss when an objection to a violation of a claim processing rule would be timely, or what the proper remedy for such a violation would be.

The full text of US v. Bastide-Hernandez can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/07/11/19-30006.pdf

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