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Immigration Law

CA7 on Niz-Chavez: Avila de la Rosa v. Garland

Avila de la Rosa v. Garland

"Cristian Avila de la Rosa received a procedurally defective Notice to Appear for his immigration removal proceedings, and (unlike many others) he made a timely objection to that Notice. The immigration judge, however, disregarded Avila’s objection, and the Board of Immigration Appeals thereafter insisted that Avila was not entitled to relief unless he could demonstrate prejudice from the defective Notice. The Board erred in doing so; we thus grant Avila’s petition for review and remand for further proceedings. ... A noncitizen who raises a timely objection to a noncompliant Notice to Appear, consistent with Niz-Chavez and Ortiz-Santiago, is entitled to relief without also having to show prejudice from the defect. ... The BIA erred by requiring Avila to show prejudice from his defective Notice to Appear, even though Avila filed a timely objection and thus invoked the benefits of the mandatory claim-processing rules of section 1229. We thus GRANT his petition for review and REMAND his case to the Board for further proceedings."

[Hats off to Mary Schnoor (formerly at Jones Day, now at DHS) and Chuck Roth at NIJC!]