In yet another decision diluting the Supreme Court’s holding in Perreira v. Sessions, the Board of Immigration Appeals recently ruled that a Notice to Appear that does not include the address of the Immigration Court or where the government will file the notice does not deprive the Immigration Court of subject matter jurisdiction to hear the case. In Matter of Vargas, 27 I & N Dec. 745 (BIA 2020), the Respondent argued that the lack of information in the Notice to Appear rendered the charging document invalid, thereby defective for purposes of opening a matter before the court’s jurisdiction. The Department of Homeland Security (“DHS”) argued, on the other hand, that the defects were cured by a subsequent Notice of Hearing that was later sent to the parties that informed them of the time, date, and place of the hearing.
In light of the BIA’s previous decision in Matter of Bermuduz-Cota, 27 I & N Dec. 441 (BIA 2018), which dealt with a similar issue, this ruling is not a surprise. Closely hewing to the logic of Bermudez-Cota, the court holds that initial defects in charging documents can be remedied as long as the subject of the hearing is later on notified of the missing information. The deficiencies are not so fundamental as to warrant termination. In fact, the court characterizes the regulations dictating the notice requirements as “claim-processing” or “internal docketing” rules which do not implicate jurisdiction in the subject matter way; rather, when jurisdiction is mentioned, it refers to administrative and procedural matters-that is, claim processing matters, and not the court’s power to hear a case.
This is important because it fortifies another bulwark in the government’s effort to transform the courts into just another apparatus. It also seems to contradict and obfuscate the clear, unambiguous language of Perreira. But unless and until the Supreme Court speaks again on this issue, this is just one in what is likely a line of lower court decisions cases semantically dismantling its holding.