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Immigration Law

BIA Continues Line of Cases Validating Deficient NTAs Despite Grave Errors: Prof. Geoffrey Hoffman

Prof. Geoffrey Hoffman, May 17, 2020

"The latest decision from the Board of Immigration Appeals (BIA), Matter of Herrera-Vasquez,  27 I&N Dec. 825 (BIA 2020), is another case in the trend of cases at the Board validating unlawful Notice to Appear (NTA). The decision, Matter of Herrera-Vasquez, is significant for what it reveals about the progression toward greater and greater deference given to Department of Homeland Security (DHS) in issuing deficient charging documents. The BIA validated the NTA in the case even though no box was checked about the status of the immigrant. The lack of checked boxes is important since those boxes indicate how DHS has categorized the alien's status, indicating whether the respondent is either an "arriving alien," alien present without being admitted or paroled, or alien admitted but now deportable. Such categories have grave consequences for the type of proceeding which will ensue, the burdens of proof, and types of relief which may be available. In addition, the respondent's address was listed as "domicilio conocido" i.e. a "known address" even where the address where respondent actually was staying in Mexico was not "known."

It is worth remembering that in another recent case, Matter of Rosales Rosales, 27 I&N Dec. 745 (BIA 2020), the BIA found that a notice to appear that does not even include the address of the Immigration Court where the Department of Homeland Security will file the charging document, see 8 C.F.R. § 1003.15(b)(6) (2019), or include a certificate of service indicating the Immigration Court in which the charging document is filed, see 8 C.F.R. § 1003.14(a) (2019), did not deprive the Immigration Court of subject matter jurisdiction.  

In another case, Matter of JJ Rodriguez, 27 I&N Dec. 762 (BIA 2020), the BIA held that when DHS returns an alien to Mexico to await an immigration hearing pursuant to the Migrant Protection Protocols and provides the alien with "sufficient notice" of that hearing, an Immigration Judge should enter an in absentia order of removal if the alien fails to appear for the hearing. The immigration judge in JJ Rodriguez was concerned that the respondent did not understand the instructions on the MPP sheet regarding his transport to removal proceedings on the day of his hearing.  In a gratuitous bit of dicta in the decision, even though the MPP sheet was in Spanish, the Board stated (as an aside) "there is no requirement that an alien in immigration proceedings be provided with a notice to appear or any other document in their native language" Id. at 765. So, not only is there no requirement to check boxes, provide the address or location, but now there is no requirement to even provide the notice in the native language of the respondent? In deciding whether the notice received by the respondent was sufficient, the Board stated specifically, "There is no indication that the notice to appear was deficient," citing Matter of Bermudez-Cota, 27 I&N Dec. 441, 445 (BIA 2018)8 C.F.R. § 1003.15(c) (2019).

It is interesting that the Board relied on Bermudez-Cota to find the notice in JJ Rodriguez sufficient. At the same time, the Board found "sufficient" the NTA in Herrera-Vasquez despite the failure of DHS to fully fill out its own charging document. The reliance on Bermudez-Cota evidences a further irony in that the "sufficient" NTA in Bermudez-Cota itself did not contain the time, date or place of the immigration court hearing, and thus failed to apprise the immigrant about the temporal or geographic particulars of his hearing in any way. As we know, the Board in Bermudez-Cota rejected the argument that the Supreme Court's decision in Pereira v. Sessions (2018), defining a proper NTA under the statute, should be followed for subject matter jurisdiction purposes. In a follow-up to Bermudez-Cota, a divided Board also failed to apply Pereira to a stop-time case where the NTA was similarly deficient, again failing to follow Pereira based on a finding that an EOIR notice of hearing can allegedly "cure" a deficient NTA. See Matter of Mendoza-Hernandez, 27 I&N Dec. 520 (BIA 2019).
 
Connecting the dots, it is obvious that the Board has taken Bermudez-Cota, and its progeny, to absurd and unreasonable lengths. 

Now, it seems, there is no error on the NTA that can be counted against DHS. No matter whether the NTA fails to provide the time, date, or place of hearing, fails to have a certificate of service, fails to include the address of the immigration court, fails to have checked boxes implicating type of proceeding, or fails to be in the native language of the respondent, seemingly no error is severe enough to invalidate the NTA according to the Board at this point.  

This failure on the part of the BIA to place any outer limits on NTAs is evocative of a double standard. It shows that what is good for the goose is definitely not good enough for the gander. In other words, despite the draconian requirements placed on immigrants in filling out their forms, requiring scrupulous detail and evidence, there is no such requirement for the government's documents. In a policy memo from USCIS dated July 13, 2018, USCIS officers are not bound to first issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) before cancelling an application. They can reject the application entirely if they find that the initial evidence was not submitted or if the evidence in the record does not establish eligibility. 
 
The lack of parity, and the unfairness, could not be more stark."