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Immigration Law

BIA (2-1) on Defective Notice, Jurisdiction: Matter of Fernandes

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

(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.

[Hats off to Jeff Rubin, Todd Pomerleau, Gerard Cedrone, David Zimmer, William Sewell-Fernandes, Kimberly A. Williams, and Michael Kaplan!]