CA5 on Niz-Chavez: Rodriguez v. Garland

Rodriguez v. Garland

"Marcelo Eugenio Rodriguez seeks review of the dismissal of his appeal by the Board of Immigration Appeals (“BIA”). Rodriguez’s appeal challenged the immigration judge’s denial of his motion to reopen removal proceedings and rescind his in absentia removal order. We grant his petition, vacate the dismissal by the BIA, and remand for further proceedings consistent with Niz-Chavez v. Garland. ... While the controversy in Niz-Chavez focused on the stop-time rule, the Supreme Court interpreted § 1229(a) separately from the stop-time statute. The Court held that § 1229(a) “require[s] ‘a’ written notice containing all the required information” and rejected the argument that the requisite notice could be provided by multiple documents. The Court reasoned that “[t]he singular article ‘a’ thus falls outside the defined term (‘notice to appear’) and modifies the entire definition. So . . . the law . . . still stubbornly require[s] ‘a’ written notice containing all the required information.” ... Unlike the charging document at issue in Maniar, the recission of an in absentia order provision at issue here textually references § 1229(a). Under Niz-Chavez’s interpretation of § 1229(a), we therefore require a single document containing the required information in the in absentia context. The initial NTA did not contain the time and date of Rodriguez’s hearing. The BIA found that the NTA combined with the subsequent NOH containing the time and place of Rodriguez’s hearing “satisfied the written notice requirements of [8 U.S.C. § 1229(a)],” directly contrary to the Supreme Court’s interpretation of § 1229(a) in Niz-Chavez which made clear that subsequent notices may not cure defects in an initial notice to appear. The BIA applied a “legally erroneous interpretation[].” We grant Rodriguez’s petition, vacate the BIA’s decision, and remand for further proceedings consistent with Niz-Chavez."

[Hats way off to Raed Gonzalez and Ross Miller!]