In a recent decision entitled Matter of R-T-P, 28 I & N Dec. 828 (BIA 2024), the Board of Immigration Appeals issued a ruling that will have a significant impact for individuals entangled in the immigration court system. The case revolves around the validity and amendment of Notices to Appear (NTAs) in removal proceedings and whether a respondent in court proceedings is denied due process when a NTA lacks critical information such as date, time, and place of hearing. Unfortunately, the BIA went against the tide of previous cases and essentially granted Immigration Judges the power to essentially fix a defective NTA.
The respondent, a native and citizen of Cuba, was served with an NTA on November 25, 2021. The NTA, however, did not specify the date and time of the hearing, stating instead that these details were “to be set.” Subsequent notices of hearing were issued, setting and later rescheduling the initial hearing dates. The respondent, represented by counsel, objected to the NTA’s non-compliance with the statutory requirement to include the date and time of the hearing as mandated by section 239(a)(1)(G)(i) of the Immigration and Nationality Act (INA).
While The Immigration Judge (IJ) initially granted the respondent’s motion to terminate the removal proceedings, citing the defective NTA, The Department of Homeland Security (DHS) appealed this decision, proposing several remedies to cure the defect, including the submission of a Form I-261 and an amended first page of the NTA with the missing information.
The BIA reviewed these proposed remedies and determined that a proper remedy must result in a single document containing all the necessary information such as the date and time. Significantly, the court emphasized that this was not a jurisdictional or due process issue, but rather a claim processing rule. (A claims processing rule is a procedural measure to ensure “the orderly progress of litigation by requiring that the parties take certain procedural steps at specified times.”) However, the court also held that this defect can and should be remedied where possible, and that written amendments made by a judge, upon motion of the government, can satisfy the requirement to meet and constitute a single document. Interestingly, the panel held that the court fixing the defective document—which can arguably be seen as the judge doing the government’s job—does not disadvantage a respondent in court proceedings. With this ruling, the decision issued a chilling precedent that hamstrings legitimate arguments that respondents are prejudiced by the lack of notice and specificity. Instead of reinforcing the court’s role as a neutral and impartial party, the ruling allows a judge to help correct the government’s errors and lapses, affording it multiple bites at the apple, to the detriment of a respondent.