Matter of R-T-P-, 28 I&N Dec. 828 (BIA 2024)

(1) A proper remedy for a violation of the claim-processing rule at section 239(a)(1)(G)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(1)(G)(i) (2018), should (1) result in a notice to appear as a single document; (2) be consistent with the rules governing the procedures used for remedy; (3) help to promote the underlying purpose of claim-processing rules generally and the rule that the notice to appear include the time and place of the hearing in particular; and (4) not prejudice the respondent.

(2) Written amendments made by an Immigration Judge, upon the motion of the Department of Homeland Security, to the time and place of the hearing on the notice to appear may satisfy the requirements for a proper remedy to a noncompliant notice to appear.

Full Decision.

Defects in the Notice to Appear & Remedies

This decision finds that an Immigration Judge may remedy a defective Notice to Appear by making handwritten amendments to it in Court when requested to do so by the Department of Homeland Security. A Respondent can object to an NTA for being defective up until the time that pleadings are completed.  Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022). However, such an objection will not have much effect after this decision if the Immigration Judge may simply remedy the defect and proceed with the case.

This decision is an anti-climatic conclusion to a string of cases relating to defective NTA’s. In 2021, the Supreme Court held that an NTA that lacks the time and place of the initial hearing before the IJ was not remedied by a subsequent notice of hearing. Niz-Chavez v. Garland, 593 U.S. 155 (2021). Following Niz-Chavez, the BIA issued Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022). In Matter of Fernandes, the BIA found that IJs may allow DHS to remedy a deficient NTA without ordering termination. However, the decision failed to specify exactly how DHS might remedy a deficient NTA. In Matter of Aguilar Hernandez, the BIA found that DHS could not remedy a deficient NTA by filing Form I-261. Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024). Most recently, the Supreme Court in Campos-Chaves v. Garland held that a respondent served with a noncompliant NTA may still be ordered removed in absentia under INA section 240(b)(5)(A), if the respondent received a notice of hearing under INA section 239(a)(2) and subsequently failed to appear at the hearing. Campos-Chaves v. Garland, 144 S. Ct. 1637, 1647 (2024).