Objection to a Noncompliant NTA

Objection to A Defect in the NTA

The Board has held in Matter of Fernandes, 28 I&N Dec. 605, 610–11 (BIA 2022), that an objection to a noncompliant notice to appear will generally be considered timely if raised prior to the close of pleadings. That decision was not a change in law, and thus Matter of Fernandes applies retroactively.

Section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), provides that a “written notice” in the form of “a ‘notice to appear’[] shall be given . . . to the alien” in removal proceedings, specifying, among other things, “[t]he time and place at which the proceedings will be held.” In Pereira v. Sessions, 585 U.S. 198, 208–09 (2018), and Niz-Chavez v. Garland, 593 U.S. 155, 160–61, the Supreme Court held that a notice to appear that does not comply with this requirement would not trigger the so-called “stop-time” rule under section 240A(d)(1)(A) of the INA, 8 U.S.C. § 1229b(d)(1)(A) (2018). In both cases, the Supreme Court relied on what it determined was the plain statutory language of sections 239(a) and 240A(d)(1)(A) of the INA, 8 U.S.C. §§ 1229(a), 1229b(d)(1)(A), language which had been in the statute for decades.

Following the Supreme Court’s decisions in Pereira and Niz-Chavez, the Board—consistent with all the courts of appeals that had addressed the matter—held that section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), is not a jurisdictional requirement and that noncompliant notices to appear do not affect the Immigration Court’s jurisdiction over the removal proceedings. Matter of Arambula-Bravo, 28 I&N Dec. 388, 389–92 (BIA 2021), aff’d, No. 21-826, 2024 WL 1299986 (9th Cir. Mar. 27, 2024). We reaffirmed that holding in Matter of Fernandes, 28 I&N Dec. at 607.

Published decisions of the Board also recognized the time and place requirement in a notice to appear as a claim-processing rule. See Matter of Fernandes, 28 I&N Dec. at 608–09; Matter of Nchifor, 28 I&N Dec. 585, 586–88, 586 n.4 (BIA 2022) (interpreting the regulatory requirements for a notice to appear); Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec 745, 749, 751–52 (BIA 2020) (same). In Matter of Fernandes, consistent with decisions of courts of appeals that addressed this issue, we concluded that section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), is a claim-processing rule. 28 I&N Dec. at 608. We also held, consistent with Supreme Court and courts of appeals case law addressing claim-processing rules, that “if a respondent does not raise an objection to a defect in the notice to appear in a timely manner, such an objection is waived or forfeited.” Id. at 609. We determined that a claim-processing rule objection “will generally . . . be timely if it is raised prior to the closing of pleadings before the Immigration Judge.” Id. 610–11. In doing so, we characterized this as “a useful guideline regarding . . . timeliness.” Id. at 610.

This Applies Retroactively

A published Board decision that interprets a previously unclear statute, for example, does not constitute a change in law for retroactivity purposes. See Olivas-Motta v. Whitaker, 910 F.3d 1271, 1279 (9th Cir. 2018); Matter of Cordero-Garcia, 27 I&N Dec. at 656. Treating precedents as only prospective runs contrary to the principle that judicial or administrative decisions simply say what the law is and generally are retroactive in application. See Reyes, 11 F.4th at 990–91; see also Chenery Corp., 332 U.S. at 203 (“Every case of first impression has a retroactive effect, whether the new principle is announced by a court or by an administrative agency”).

The test for whether a published decision constitutes a change in law, and thus triggers a retroactivity analysis, is whether the Board “‘consciously overrules or otherwise alters its own rule or regulation,’ or ‘expressly considers and openly departs from a circuit court decision.’” Matter of Cordero-Garcia, 27 I&N Dec. at 656 (quoting Olivas-Motta, 910 F.3d at 1277). Whether a decision has retroactive effect is a question of law we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2024).

Application of the “Change in Law” Test

Matter of Fernandes does not constitute a change in law requiring a retroactivity analysis. As an initial matter, our holding in Matter of Fernandes that the time and place requirement in the notice to appear is a claim-processing rule was consistent with decisions by courts of appeals that previously addressed this issue, as well as the Board’s prior decisions. Likewise, our determination that an objection to a noncompliant notice to appear is waived or forfeited if not timely raised is not a change in law because it was based on prior Board, courts of appeals, and Supreme Court precedents regarding claim-processing rules. 3 See Matter of Fernandes, 28 I&N Dec. at 609. Turning to the timeliness issue, in Matter of Fernandes we provided a guideline for determining when a claim-processing rule objection is timely. Id. at 610–11. We observed that neither the statutory text nor the Supreme Court’s jurisprudence addressing claim-processing rules in different contexts provided specific guidance. Id. at 609. We further acknowledged that the Board’s decision in Matter of Nchifor, 28 I&N Dec. at 589, which involved an objection raised for the first time in a motion to reopen, had not previously decided at what point an objection will be considered timely. Matter of Fernandes, 28 I&N Dec. at 610. Although we considered circuit court decisions that had addressed timeliness, none of these decisions had definitely decided at what point in the proceeding an objection must be made in order to be timely. See id. at 609–10, 609 n.3; see also Arreola-Ochoa v. Garland, 34 F.4th 603, 609 (7th Cir. 2022) (suggesting a range of factors to consider when determining the timeliness of an objection); Pierre-Paul, 930 F.3d at 693 & n.6 (holding that an objection to a noncompliant notice to appear raised for the first time in a petition for review was untimely and noting that “an alien who fails to object to the notice to appear and concedes his removability” waives the objection.

Based on the above, we conclude that the Board’s holding in Matter of Fernandes, 28 I&N Dec. at 610–11, that an objection to a noncompliant notice to appear will generally be considered timely if raised prior to the close of pleadings is not a change in law for purposes of retroactivity. Accordingly, we need not apply the multi-factor retroactivity analysis discussed in Matter of Cordero-Garcia, 27 I&N Dec. at 658, 466 F.2d at 390. Matter of Fernandes applies retroactively.

Our guidance in Matter of Fernandes as to the timeliness of the claim-processing rule objection to a noncompliant notice to appear applies retroactively. The respondents did not object to the missing information in their notices to appear before the close of pleadings and have not otherwise demonstrated that their objection should be considered timely. Thus, they have forfeited their objection. We will sustain DHS’ appeal, vacate the Immigration Judge’s decision, and remand for further proceedings

Claim-Processing Rule