ICE Attorneys Cannot Correct Defective Notice To Appear with a Form I-261

The Board of Immigration Appeals (BIA), in an important precedential decision, held that the Department of Homeland Security (DHS) cannot remedy a defective Notice to Appear (NTA) that lacks time and date information because this remedy is contrary to the plain text of the regulations and inconsistent with a prior decision of the Supreme Court. Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024).).

The regulation at issue in this case is 8 CFR § 1003.30, which states that DHS may at any time during removal proceedings file additional or substitute charges of removability and/or factual allegations in writing. In 2021, the Supreme Court held that an NTA that lacks the time and place of the initial hearing before the Immigration Judge (IJ) could not be remedied by the Immigration Court’s issuance of a notice of hearing that informs the respondent when to appear for the initial hearing. Niz-Chavez v. Garland, 593 U.S. 155 (2021). Following Niz-Chavez, the BIA found that a respondent may timely object to a deficient NTA prior to the closing of pleadings and need not show any prejudice caused by the missing time and place information, but that IJs may allow DHS to remedy the noncompliant NTA rather than ordering termination of proceedings. in Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022), However, the BIA failed to articulate what remedy short of termination would suffice in that case.

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