Oct. 12, 2024 10:48 am

Notices to Appear (NTAs) are legal documents issued to non-citizens referred to immigration courts that seek relief in deportation proceedings in the United States.

According to U.S. Immigration Law (INA § 239(a)(1)), an NTA must include specific details, such as the date and time of the first hearing, indicating when the individual must appear before an immigration judge to present their case in the deportation process.

However, it has been observed in many cases that the Department of Homeland Security (DHS), responsible for issuing and delivering NTAs, does not coordinate with the Executive Office for Immigration Review (EOIR) to obtain a hearing date and time. Instead, they proceed to issue and deliver NTAs to non-citizens (particularly those crossing illegally via the southern border) without any hearing date.

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This issue has been highly debated in jurisprudence. In 2018 and 2021, the U.S. Supreme Court, in the cases Pereira v. Sessions and Niz-Chavez v. Garland, respectively, ruled that an incomplete NTA cannot fulfill its legal purpose if it does not contain all the required information at the time of issuance. Then, in 2022, the Board of Immigration Appeals (BIA), in the case Matter of Fernandes, held that an NTA lacking the date and time of a hearing constitutes a violation of mandatory claim processing rules. Earlier in 2024, in Matter of Aguilar Hernandez, the BIA further concluded that if an NTA lacks this information, the DHS cannot correct the violation by presenting an amendment or modification to the NTA.

Nevertheless, early September, the BIA, in the case Matter of R-T-P-, granted immigration judges the authority to «fix» these defective NTAs rather than requiring DHS to properly fulfill its duties. According to this recent BIA decision, immigration judges (who report to the Department of Justice) can personally remedy a DHS violation of the mandatory claim processing rules by completing the missing information themselves at the request of the government’s attorney. This decision undermines the role of the immigration judge as an independent and neutral arbiter, in my opinion, making the judge an agent of the government to rectify its own errors, which negatively impacts the due process rights of individuals.

We know that in immigration proceedings judges must act within the framework of the law and the Constitution. They have the obligation to apply the law to specific cases. That means that they must do so within a proper procedural framework that ensures a fair process for non-citizens. However, immigration judges should not be tasked with correcting the government’s errors, especially since they are administrative judges who, like federal attorneys, are part of the executive branch.

To solve this problem, a potential solution may be that immigration judges become part of the judicial branch, as is the case with judges in regular courts.

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