Deciphering Matter of Fernandes

Back in August, the BIA issued Matter of Fernandes,1 the latest installment in the ongoing saga of Pereira v. Sessions.2 Four years after Pereira, Fernandes established that a timely challenge to a defective Notice to Appear will have immediate consequences. Unfortunately, the decision left unclear what those consequences might be. Months later, confusion abounds whenever the issue arises in Immigration Court.

To provide some background, shortly after the Supreme Court issued its decision in Pereira in 2018, holding that a Notice to Appear in which DHS has not included the time and date of hearing is not in fact a Notice to Appear, a number of Immigration Judges throughout the country began to terminate removal proceedings by the thousands.3 Their logic: since a Notice to Appear is required to commence removal proceedings, a document which is not a Notice to Appear fails to commence proceedings.

The BIA’s immediate response was the equivalent of a passenger pulling the emergency brake on the NYC subway - that is, the Board panicked, reacted impulsively, and brought things to a screeching halt. In its decision, Matter of Bermudez-Cota,4 the Board held that DHS’s failure to include a date and time of hearing in a Notice to Appear is of no import. As long as a different entity (the Immigration Court) housed in a different governmental department (Justice) sends a different document containing the missing information weeks, months, or even years later, the noncitizen can simply attach the two (perhaps with a piece of used chewing gum), maybe smooth out the pages a bit on their lap, and voila! A totally perfect NTA.

Four years later, the majority’s decision in Fernandes took a different approach. By then, two things had changed. First, in its 2021 decision in Niz-Chavez v. Garland,  the Supreme Court rejected the “build your own NTA out of disparate parts” approach previously embraced by the Board.5 This development required the Board to admit that the service of a defective charging document by DHS was in fact a problem that needed to somehow be addressed.

Secondly, the circuit courts had come to agree that the requirements for what an NTA must contain is a  “claim-processing rule” rather than a jurisdictional one.6 Violations of claim-processing rules are deemed waived in the absence of a timely objection. And many respondents don’t want to object because doing so might prevent them from pursuing their claims for asylum or other relief before the Immigration Judge.

But Fernandes also made much of the fact that, in entirely different contexts, courts have found violations of claim-processing rules to be curable. And the majority used that fact to conclude that a proper challenge to a defective NTA doesn’t necessarily require termination of the proceedings, adding that DHS might even be able to fix the defect.7  The majority avoided explaining how such a cure could be accomplished, or when it would be appropriate, stating that “[t]he precise contours of permissible remedies are not before us at this time.”8 Instead, they left the matter to the discretion of individual Immigration Judges to work out as they see appropriate.9

In his dissent, Judge Ed Grant astutely pointed out that “the majority leaves the parties and the Immigration Judge at sea to determine what an appropriate remedy would be in this case.”10 Clearly, DHS can’t simply issue another piece of paper. In its rejection of what it called “the government’s notice-by-installment theory,”11 the Supreme Court in Niz-Chavez emphasized the requirement of “a” Notice to Appear, with the “a” denoting a single document containing all of the required information. The Court employed the analogy that “someone who agrees to buy ‘a car’ would hardly expect to receive the chassis today, wheels next week, and an engine to follow.”12 So this would seem to preclude DHS from “curing” the document with a second document containing the missing information.

Grant thus pointed out that there remained no foreseeable remedy other than termination, adding that “neither an Immigration Judge nor DHS has authority to ‘pencil in’ a hearing date after the fact on an already-served notice to appear.”13 The majority also recognized in a footnote a holding by the U.S. Court of Appeals for the Seventh Circuit requiring termination of proceedings under these circumstances. However, the majority sidestepped the conflicting precedent by stating that the case before it did not arise in the Seventh Circuit, without explaining why it believed that court’s approach to be wrong.14

So where does that leave us? If the respondent’s attorney moves to terminate, the Immigration Judge has to provide DHS with the opportunity to fix the defective document. The ICE attorney is then left with trying to figure out a fix that doesn’t involve either penciling in the missing information now, or running afoul of the prohibition against “notice-by-installment.”

One approach I’ve seen involves ICE submitting a second document, called a form I-261, which is titled “Additional Charges of Inadmissibility/Deportability.” This form is used when new facts become known to ICE that might cause a rethinking of the reasons a respondent is removable. ICE will then file this addendum listing the new charge of removability it intends to pursue, and also include a summary of the facts that support the new charge.

However, as employed in the Fernandes context, the form submitted by ICE contained no additional charge of either inadmissibility or deportability. Instead, ICE typed in only that the NTA issued nearly ten years earlier is now (in 2022) being amended to state that the initial hearing in the case was scheduled on a date in 2013. 

I have no insight into ICE’s thinking here. It seems to employ the prohibited “notice-by-installation” method, but for the purpose of accomplishing the equivalent of “penciling in” the date now on the original NTA, which the dissent in Fernandes flagged as impermissible. It also misuses the I-261 form for an unintended purpose.   But even if an Immigration Judge were to accept ICE’s method of delivering the date now for then, the bigger issue involves how that constitutes a cure.

The majority in Fernandes referenced Supreme Court precedent that “suggests that where the claim-processing violation stems from a defect in a document that can be corrected, adjudicators may allow the violating party to remedy the defect without dismissing proceedings.”15 The key language seems to be “that can be corrected.”

The Fernandes majority pointed to an example that had nothing in common with the issue before it. In that instance, a prisoner who filed a defective document necessary to proceed with a habeas action was found to possibly have the right to amend the document.16

I understand how permitting a prisoner to amend a filing allowing an appeal to move forward is a cure. Maybe I’m missing something, but I don’t see how ICE today informing a respondent about a hearing date that occurred years ago cures anything. As the Supreme Court noted in its Niz-Chavez decision, when Congress enacted legislation creating the Notice to Appear in 1996, it replaced language that previously allowed the time and date of the initial hearing to be included in either the charging document “or otherwise.” The Court observed that under the new law “time and place information must be included in a notice to appear, not ‘or otherwise.’”17

No matter what ICE does now won’t change the fact that the Notice to Appear didn’t include the required information.  And since Congress obviously had a purpose in creating the new requirement, providing the missing time and date years later, regardless of the number of documents employed or the means of communication, is never going to satisfy that Congressional intent. It’s thus not a cure.

Thus, at a time when the Immigration Courts struggle with a backlog approaching two million cases, the BIA has issued a decision that has encouraged judges, ICE, and the private bar to spend their overtaxed resources engaging in a wild goose chase.

There’s also the question of whether it is fair to allow DHS the opportunity to cure a prior misstep without affording a similar courtesy to respondents. Fernandes allows DHS a second chance to commence proceedings in light of what has been learned from subsequent case law. But the Board does not allow respondents the opportunity to now raise objections to the defective charging document that would have been futile to pursue at the time pleadings were conducted. What if the respondent was unrepresented at the time of the pleadings?

The good news is that the decision regarding the appropriate remedy will ultimately be made by the Immigration Judges. It is hoped that in exercising their “judgment and discretion to enforce that rule as he or she deems appropriate to promote the rule’s underlying purpose,” as they are instructed to do by the Board,18 those judges will conclude, consistent with the views of the Seventh Circuit and the dissent in Fernandes, that termination is required.

Copyright Jeffrey S. Chase 2022. All rights reserved.

Notes:

1. 28 I&N Dec. 605 (BIA 2022).

2. 138 S. Ct. 2105 (2018).

3. Reade Levinson, Kristina Cooke, “U.S. Courts Abruptly Tossed 9,000 Deportation Cases. Here’s Why,” Reuters,Oct. 17, 2018, https://www.reuters.com/article/us-usa-immigration-terminations/u-s-courts-abruptly-tossed-9000-deportation-cases-heres-why-idUSKCN1MR1HK.

4. 27 I&N Dec. 441 (BIA 2018).

5. 141 S. Ct. 1474 (2021). The author was among the 33 former Immigration Judges and BIA Members included in an amicus brief in Niz-Chavez in support of the Petitioner.

6. See, e.g. Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019).

7. Matter of Fernandes, supra at 613-16.

8. Id. at 616.

9. Id. at 613.

10. Id. at 618.

11. Niz-Chavez v. Garland, supra at 1479.

12. Id. at 1481.

13. Matter of Fernandes, supra at 618.

14. Id. at 616, fn. 9.

15. Fernandes at 614.

16. Id. at 614-15 (referencing Gonzalez v. Thaler, 565 U.S. 134, 146 (2012)).

17. Niz-Chavez at 1477. See also Ortiz-Santiago v. Barr, supra  at 962 (observing that when Congress “came up with the Notice to Appear” in enacting the IIRAIRA, “[t]he ‘or otherwise’ language disappeared.”).

Fernandes at 613.