Termination of Removal Cases for Faulty NTA

When removal proceedings are initiated against an individual, they are issued a legal document called a Notice to Appear (“NTA”) detailing the statutory citation for their removal proceedings as well as the time, date, and location of their next court date. In recent years, Customs and Border Protection agents began issuing NTAs missing an essential piece of information: the date and time of the upcoming court hearing. These faulty NTAs clearly set individuals up for failure as they required those individuals to show up for a court hearing but did not inform them of when that hearing was. Missing a hearing could result in a deportation order without any opportunity to plead legitimate defenses. But beyond this blatant injustice, these NTAs failed to contain all the information they were statutorily required to contain.

In 2018, the United States Supreme Court recognized that NTAs which did not indicate a date or time for a hearing were not statutorily compliant. Pereira v. Sessions, 138 S. Ct. 2105 (2018).  In that case, the Court limited the challenges against faulty NTAs to the application of a particular rule used when calculating the amount of time an individual has lived in the U.S. before being issued an NTA, known as the “stop-time rule.” This rule was very important for individuals seeking cancellation of removal, a specific legal defense from removal. But for people ineligible for that defense, the Court did not expound how a faulty NTA may be addressed.

In August of 2022, the Board of Immigration Appeals (“BIA”) took up the issue where the Supreme Court had left off in a case called Matter of Fernandes, 28 I&N Dec. 605 (2022). In Fernandes, the BIA held that when an individual in removal proceedings objects to a faulty NTA, the Department of Homeland Security (“DHS”) must remedy the NTA to make it statutorily compliant. If DHS is unwilling to unable to remedy the faulty NTA, then it is possible that the entire case may be terminated. While termination of removal proceedings may not grant an individual immigration benefits, it does mean that they are no longer at threat of being deported—at least until another NTA is issued. However, with DHS overwhelmed by the number of removal cases on their plate, they may not believe fixing their mistakes is worth the effort.

If you are currently in removal proceedings and have been issued a faulty NTA, contact our offices for a consultation today.