LEGAL GUIDE
Written by attorney Carl Michael Shusterman

How a Defective NTA Can Save You from Deportation

In April 2021, the US Supreme Court held that a defective NTA does not give the government jurisdiction to place a person in removal proceedings.

An NTA is a Notice to Appear in Immigration Court.

Defective NTAs

The U.S. Supreme Court, in Niz-Chavez v. Garland, held that the law requires that an NTA inform a person of the date and time of their hearing in Immigration Court. An NTA which fails to show the date and time of the hearing is a defective NTA which does not give the Immigration Court jurisdiction to hear a case, deny relief from deportation or order a person removed from the U.S.

Niz-Chavez repeated what another Supreme Court case, Pereira v. Sessions, stated a few years earlier. However, the Board of Immigration Appeals (BIA) and various U.S. Courts of Appeals issued a number of decisions approving the government’s attempts to narrow the holding of the Supreme Court in Pereira.

Some decisions claimed that even if the NTA failed to state the date and time of the hearing, a subsequent notice of hearing which listed the date and time “cured” the defective NTA.

Niz-Chavez makes it clear that this is not correct.

Nevertheless, one can expect that the government will continue to attempt to narrow the holdings of both Pereira and Niz-Chavez in ways that do not conform with the law.

Since both cases involved the stop-time in cancellation of removal cases, expect the government to continue to argue that Pereira and Niz-Chavez only apply to applications for cancellation of removal or to cases involving the stop time rule.

For example, on June 9, 2021, Immigration and Customs Enforcement (ICE) issued a legal notice which states that “for 180 days from the date of the Supreme Court’s decision (i.e., until November 16, 2021), ICE attorneys handling removal cases before the Executive Office for Immigration Review (EOIR) will presumptively exercise their prosecutorial discretion to join or not oppose a motion to reopen by such noncitizen who demonstrate that they are prima facie eligible for cancellation of removal.”

While this may appear to be a positive development, why is this legal notice limited only to cancellation of removal cases when the scope of the Supreme Court’s decision in Niz-Chavez applies to all defective NTAs, not just to those cases where the person is applying for cancellation of removal? And what is the basis for the 180 day limitation?

Why the Government Wants to Limit Niz-Chavez

As a former INS Attorney (1976-82), I foresee that the government, even under the current Administration, will continue to look for ways to attempt to narrow the Supreme Court’s holding in Niz-Chavez.

Why?

Because there are well over a million persons currently in removal proceedings, and the government has issued many, perhaps hundreds of thousands, of defective NTAs.

Following the law as stated in Niz-Chavez would require the government to cancel a huge percentage of pending removal proceedings, approve a like amount of motions to terminate proceedings and reopen and dismiss Orders of Removal against persons who were ordered deported despite being served with defective NTAs.

In other words, the government’s error in issuing so many defective NTAs would result in a breakdown of the deportation machine.

Yet, if persons born abroad are required to comply with immigration laws passed by Congress and signed by the President, the government is also required to abide by these laws. As Justice Gorsuch stated in the majority opinion in Niz-Chavez v. Garland:

“If the government finds filling out forms a chore, it has good company. The world is awash in forms, and rarely do agencies afford individuals the same latitude in completing them that the government seeks for itself today.”

and

“If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.”

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