Board of Immigration Appeals Once Again Rules That Defective Notices to Appear Do Not Impact Immigration Court Jurisdiction
The Board of Immigration Appeals, or BIA, ruled in Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021), that a Notice to Appear, or NTA, lacking information about the time and place of an immigration court hearing did not deprive the immigration judge of jurisdiction over a respondent’s removal proceedings. This decision followed a BIA amicus invitation on the question, “Whether, and if so to what extent, Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), impacts the jurisdiction of an Immigration Court where the Notice to Appear fails to satisfy the statutory requirements of [INA §] 239(a). . . . ?” While the Arambula-Bravo decision rejected the respondent’s jurisdictional challenge based on a defective NTA—an argument that had been unanimously rejected prior to Niz-Chavez by U.S. courts of appeals and in prior BIA decisions—it leaves open other Niz-Chavez-based arguments. The decision also held that an NTA lacking time and place information was still a “charging document” sufficient to terminate a noncitizen’s grant of parole under 8 CFR § 212.5(e)(2)(i).
Facts and Immigration Court Proceedings
Ms. Arambula-Bravo, a noncitizen who had been twice previously removed and who allegedly last entered the United States without inspection in 2004, was granted parole1 for a period of six months following her 2008 arrest for unlawfully transporting noncitizens. 28 I&N Dec. at 388-89. About two months before her parole period was set to expire, the Department of Homeland Security, or DHS, served Ms. Arambula-Bravo with an NTA charging her with inadmissibility under INA § 212(a)(6)(A)(i) for being a noncitizen “present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General.” Id. at 389. The NTA did not list the time or date of her immigration hearing, so the immigration court subsequently mailed her a hearing notice specifying the time, date and place of the initial hearing. Id. In Ms. Arambula-Bravo’s removal proceedings, the IJ found her removable as charged, concluding that when DHS served her with an NTA, her parole status was terminated by operation of 8 CFR § 212.5(e)(2)(i) and she reverted to her prior status—a noncitizen present without being admitted or paroled. Id. The IJ concluded that Ms. Arambula-Bravo was ineligible for adjustment of status, cancellation of removal, and voluntary departure, and ordered her removal. Id.
On appeal to the BIA, Ms. Arambula-Bravo argued inter alia that the immigration court lacked jurisdiction over her removal proceedings because her NTA did not list the time and place of her initial immigration court hearing, and further argued that she was not inadmissible as charged because the defective NTA did not constitute a “charging document” that could trigger the regulation on termination of parole.
BIA Decision on Immigration Court Jurisdiction and Niz-Chavez
The BIA rejected Ms. Arambula-Bravo’s argument that a defective NTA deprives the immigration court of jurisdiction over removal proceedings. It cited to its earlier decisions in Matter of Bermudez-Cota, 27 I&N Dec. 441, 443 (BIA 2018) and Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745, 751–52 (BIA 2020), where it had concluded that the Supreme Court decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018)—which held that a putative NTA lacking information about the hearing’s time or place did not trigger the cancellation of removal “stop-time rule”—did not impact an immigration court’s jurisdiction in defective NTA cases. 28 I&N Dec. at 390.The BIA further reasoned that although the Supreme Court had issued a second decision about defective NTAs—Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021)—while Ms. Arambula-Bravo’s BIA appeal was pending, that decision likewise had no impact on immigration court jurisdiction and did not disturb the BIA’s prior precedents in Bermudez-Cota and Matter of Rosales Vargas and Rosales Rosales. 28 I&N Dec. at 391. The BIA noted that every U.S. court of appeals to have considered the question—including a several post-Niz-Chavez decisions—has ruled that a defective NTA does not deprive an immigration court of jurisdiction. Id. at 391-92.
BIA Decision on Defective NTAs and Termination of Parole
The BIA also affirmed the IJ’s determination that Ms. Arambula-Bravo was removable for being a noncitizen “present in the United States without being admitted or paroled” under INA § 212(a)(6)(A)(i), despite the fact that she had been paroled after her most recent entry without inspection. Id. at 397. The BIA relied on a regulation that directs that when a “charging document” is served on a noncitizen, that document constitutes written notice of termination of parole, and the noncitizen “shall be restored to the status that he or she had at the time of parole.” 8 CFR § 212.5(e)(2)(i). The BIA rejected Ms. Arambula-Bravo’s argument that because the NTA issued to her was defective, it was not a “charging document” under the regulation and thus did not terminate her parole. Instead, the BIA reasoned, though the regulatory definition of “charging document” includes an NTA, see 8 CFR § 1003.13, the definition does not specify that the NTA must comply with the statutory requirements for an NTA found at INA § 239(a).
The BIA thus held that an NTA lacking the time and place of the immigration court hearing was sufficient to terminate a noncitizen’s grant of parole under 8 CFR § 212.5(e)(2)(i). In Ms. Arambula-Bravo’s case, the BIA concluded that when the NTA terminated her parole, she reverted to the status of a noncitizen “present without being admitted or paroled,” satisfying the NTA’s charge of inadmissibility under INA § 212(a)(6)(A)(i).
BIA Decision on Relief
The BIA also affirmed the IJ’s determination that Ms. Arambula-Bravo was ineligible for adjustment of status, cancellation of removal, and voluntary departure. The BIA concluded that Ms. Arambula-Bravo was ineligible for both cancellation of removal and voluntary departure because her conviction for unlawful transportation of noncitizens into the United States under INA § 274(a)(1)(A)(ii) was an aggravated felony. 28 I&N Dec. at 397. The BIA further concluded that Ms. Arambula-Bravo was not eligible for adjustment of status under INA § 245(a) because she was not “inspected and admitted or paroled into the United States” and was not admissible, apparently relying on the fact that her parole had been terminated. Id.
Implications of Arambula-Bravo for immigration court practitioners
Defective NTAs as a basis for termination. The ruling in Arambula-Bravo that defective NTAs do not deprive the immigration court of jurisdiction does not come as a surprise, given the BIA’s decisions before Niz-Chavez on this issue. Practitioners wishing to pursue termination of removal proceedings based on a defective NTA may still make jurisdictional arguments to preserve the issue for review, though these challenges face an uphill battle in light of the unanimously unfavorable precedents in the U.S. courts of appeals on this issue.
Some practitioners have successfully sought termination based on a defective NTA through a different argument—that INA § 239(a)’s NTA requirements are mandatory “claim-processing rules.” The Arambula-Bravo decision declined to weigh in on this theory since the respondent did not raise the argument, stating that it would “leave further consideration of [INA §] 239(a) as a claims-processing rule for another day.” 28 I&N Dec.. at 392 n.3. For more on the claim-processing argument for termination and other Niz-Chavez-based arguments, see the June 2021 practice advisory authored by CLINIC, the American Immigration Council, and the National Immigration Project of the National Lawyers Guild, “Strategies and Considerations in the Wake of Niz-Chavez v. Garland.”
Other arguments based on defective NTAs. While it rejected the jurisdictional argument, the Arambula-Bravo decision’s language bodes well for other Niz-Chavez based arguments arising from defective NTAs, particularly when they are grounded in a statutory reference to INA § 239(a). Because the decision emphasizes the importance of an explicit reference in statute or regulation to INA § 239(a)’s NTA requirements, see, e.g., 28 I&N Dec. at 394, it breathes new life into defective NTA arguments where the relevant statute does specifically cross-reference INA § 239(a). Two salient examples of other statutes that explicitly cross-reference INA § 239(a) are the post-conclusion voluntary departure stop-time rule statute and the statute governing rescission and reopening of in absentia removal orders.
Regarding the voluntary departure stop-time rule, the decision cites favorably to a Ninth Circuit decision, Posos-Sanchez v. Garland, 3 F.4th 1176, 1184-86 (9th Cir. 2021), which had applied Pereira and Niz-Chavez to conclude that a defective NTA did not stop the time on the one year of physical presence required for voluntary departure under INA § 240B(b)(1)(A). 28 I&N Dec. at 394.
Regarding the in absentia statute, under INA § 240(b)(5)(C)(ii), an IJ may rescind an in absentia removal order if the noncitizen demonstrates that they “did not receive notice in accordance with paragraph (1) or (2) of [INA § 239(a)].” Practitioners could argue that following the reasoning of Arambula-Bravo, a respondent issued a defective NTA satisfies the grounds for rescinding an in absentia order under INA § 240(b)(5)(C)(ii), and that previous BIA precedents to the contrary—Matter of Pena-Mejia, 27 I&N Dec. 546 (BIA 2019); Matter of Mirando-Cordiero, 27 I&N Dec. 551 (BIA 2019)—do not survive Niz-Chavez and Arambula-Bravo. Indeed, in a recent decision, the U.S. Court of Appeals for the Fifth Circuit held that, in light of Niz-Chavez, an NTA lacking information about the hearing’s time and place was grounds for rescission and reopening of an in absentia order. Rodriguez v. Garland, No. 20-60008, --- F.4th ---, 2021 WL 4397468 (5th Cir. Sept. 27, 2021). For a sample notice-based motion to rescind and reopen an in absentia order in light of Niz-Chavez, visit the National Immigration Litigation Alliance’s website.
Parole and adjustment of status. The decision contains a cursory but problematic discussion of eligibility for adjustment of status for those who have been previously paroled. The decision states, “For the reasons discussed above, the respondent did not establish that she is eligible for adjustment of status under [INA §] 245(a) because she was not ‘inspected and admitted or paroled into the United States.’” 28 I&N Dec. at 397. The decision does not recognize the distinction between the language in the INA § 212(a)(6)(A)(i) ground of inadmissibility for those “present in the United States without being admitted or paroled,” and the language in the INA § 245(a) adjustment of status provision requiring that a noncitizen “was inspected and admitted or paroled into the United States.” The decision ignores the plain language of INA § 245(a), which merely requires that the noncitizen have been paroled in the past (“was . . . paroled”), rather than requiring current parole status. The BIA need not have reached this issue in Ms. Arambula-Bravo’s case, because as it recognizes in a footnote, she would have been ineligible for adjustment of status regardless due to her two prior removals and subsequent unlawful reentry. 28 I&N Dec. at 397 n.6. It remains to be seen how this language will be interpreted by the agency, but it may require challenge through federal court litigation.
1 Though the decision does not expressly state the statutory basis for Ms. Arambula-Bravo’s parole, it appears to have been granted under INA § 212(d)(5), which allows the government to grant parole “on a case-by-case basis for urgent humanitarian reasons or significant public benefit.”