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Third Circuit joins a growing number of circuit courts around the country to hold that the Department of Homeland Security (DHS) may no longer rely on a subsequent Notice of Hearing to cure a defective Notice to Appear.

Mar02
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Third Circuit joins a growing number of circuit courts around the country to hold that the Department of Homeland Security (DHS) may no longer rely on a subsequent Notice of Hearing to cure a defective Notice to Appear.

On February 26, 2020, the Third Circuit Court of Appeals issued its decision in Guadalupe v. Attorney General of the United States, a case Petitioner brought seeking termination of his removal proceedings because DHS issued him a Notice to Appear (“NTA”) that was deficient for lack of a time, date, and place of his hearing. The government argued that the subsequent Notice of Hearing it issued—a document that provides the individual with the date, time, and place of their immigration hearing (among other things, including the allegations as the basis for removal)—corrected the deficient NTA.

The 3rd Circuit disagreed. It held that DHS might no longer rely on a Notice of Hearing to cure a defective Notice to Appear. The Court found that the operative language from the U.S. Supreme Court decision Pereira v. Sessions is clear:

Pereira holds that an NTA shall contain all the information set out in section 1229(a)(1). An NTA, which omits the time and date of the hearing, is defective. To file an effective NTA, the government cannot, in maybe four days or maybe four months, file a second – and possibly third – Notice with the missing information.

This decision is a win for individuals who received a Notice to Appear that did not contain the required time, date, and place information. A similar case is currently pending in the 10th Circuit Court of Appeals and is awaiting decision, Baneulos Galviz v. Barr following oral argument on January 23, 2020. https://www.courtlistener.com/audio/68173/banuelos-galviz-v-barr/

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