Making the Government Turn Square Corners in Immigration Court: Matter of Aguilar Hernandez

The winning attorney in Matter of Aguilar Hernandez, Bashir Ghazialam, provides this commentary:

"As immigration lawyers, we need to be ready for and are expected to turn square corners in every step and stage of our cases. We need to be ready to readily respond to those tight scheduling orders despite the fullness of our calendars and our growing caseloads, not to mention high and sometimes misgauged client expectations. We must deal with, and sometimes accept as reality, the already unlevel playing field where some immigration judges hold us and DHS counsel to different standards on issues ranging from courtroom decorum, requests for waiver of appearances, extensions of deadlines, showing of due diligence, accepting or rejecting certain filings such as asylum applications, to making decisions on objections and motions to terminate proceedings due to the defectiveness of the charging documents referred to as Notices to Appear.

The immigration statutes and regulations give our clients certain rights. These rights include proper service of a charging document which complies with the time and place requirements under section 239(a)(1)(G)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229(a)(1)(G)(i) (2018). In 2018, the Supreme Court held that a putative NTA that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a “notice to appear under §1229(a),” and so does not trigger the stop-time rule. Pereira v. Sessions, 138 S. Ct. 2105, 2114 (2018). Since this was a narrow holding limited in the context of the stop-time rule for the purposes of cancellation of removal, the obvious questions of whether such violation deprived the immigration court of subject matter jurisdiction or whether this was a curable claims processing violation which could be forfeited, and if curable, when and how the defect could be cured and whether termination is the only remedy. Well, it took another five years of litigation and zealous advocacy by the immigration bar to bring the courts to answer these questions in a uniform manner (well almost, as explained below).

In 2021, after lower courts, including immigration judges had interpreted Pereira to mean that the defect could be cured with a subsequently served Notice of Hearing, the Supreme Court spoke again and held that a notice to appear sufficient to trigger the IIRIRA’s stop-time rule is a single document containing all the information about an individual’s removal hearing specified in §1229(a)(1) Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480 (2021). Then in 2022, the BIA begrudgingly caved and held that (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. Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022).

In late 2022, armed with these decisions, including Matter of Fernandes, I appeared for a reset master calendar hearing for my case which I had been litigating since 2018, including challenging the validity of the NTA (which was suffering from the same defect), where I objected to the defective NTA and moved to terminate. Citing Matter of Fernandes and Niz-Chavez, I argued that it was a mandatory claims processing violation, that my objection was raised timely in accordance with Matter of Fernandes, and that although that case held that An Immigration Judge may allow the Department Homeland Security to remedy a noncompliant notice to appear without ordering the termination of removal proceedings, the filing of a Form I-261 was not proper and contrary to the plain text of 8 C.F.R. § 1003.30 and inconsistent with the Supreme Court’s decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021), and that the government was unable to articulate any other form of remedy which the statutes or regulations provided for. Despite my arguments, the Immigration Judge was still not willing to make the government “turn square corners” and allowed to cure the defect by way of filing a Form I-261.

Although my client was unable to afford the costs associated with the interlocutory appeal, I did not hesitate for a moment and filed it. On January 31, 2024, after strenuous briefing, support of colleagues across the country, a rare BIA oral argument, and a determined fight back by the government, the Board finally came around and answered the question that they left open in Matter of Fernandes, which was, how and whether the government can cure such a defective NTA. Although the Board did not go as far as categorically declaring that termination is the only remedy, it rejected the government’s proposition that it can remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261.

This case is not just a victory for my client, but a victory for noncitizens throughout the country, as well as against the government’s stubborn refusal to change their ways and the immigration judges’ willingness to help the government avoid having to turn square corners just like respondents’ counsel.  To quote the Board itself, “Just as we expect a respondent to comply with an Immigration Judge’s scheduling order or to make an asylum claim on an asylum application (Form I-589), it is only reasonable to expect the government to utilize its official forms in the way the regulations authorizing the use of those forms prescribe.  Permitting DHS to use a Form I-261 to amend the date and time of the defective notice to appear as an administrative convenience would not be faithful to our obligation to “turn square corners,” (quoting  Niz-Chavez) and we decline to do so in this case.”   Matter of Luis AGUILAR HERNANDEZ,  28 I&N Dec. 774 (BIA 2024).

This case, as well as the cases that preceded it, are prime examples of how important it is to hold the IJs and the government to the plain text of the statute or applicable regulation or to the controlling case law. We cannot allow the government to throw any argument at the wall in hopes of any of them sticking, nor allow certain IJs to bend over backwards to give them every opportunity to do so. And we need to bring to the courtroom the proper tools to fight back against this practice. Of course, all of this comes with a lot of challenges and expenses, but one cannot run an effective immigration practice without accepting such challenges and expenses. A lot of times our clients are unable to afford to pay for an interlocutory appeal which in some cases may be the only viable option to avoiding an almost certain removal of a noncitizen who may have known this as their only country since early childhood. But if the law and the facts are on our client’s side, the benefits always outweigh these risks and costs. As immigration attorneys, we are faced with these types of heartbreaking decisions every day. So, if we, as immigration attorneys, have to turn such square corners, why should we allow the other side to avoid doing so?" - Copyright 2024, Bashir Ghazialam, All Rights Reserved.