On January 18, 2022, the Board of Immigration Appeals decided Matter of Laparra, 28 I. & N. Dec. 425 (BIA 2022) and held that the Immigration Judge properly entered an order of removal for Laparra's failure to appear at a hearing that he received written notice of, even when the Notice to Appear initially failed to include the place and date of his first hearing.
Break it down for me a little more ...
The History
The History
The facts in this case are pretty straightforward:
Laparra was a native and citizen of Guatemala who entered the US without inspection at an unknown place and time. On July 15, 2008, the Department of Homeland Security personally served him with a Notice to Appear (the charging document that initiates removal/deportation proceedings; also called an “NTA”) ordering him to appear for a hearing before an Immigration Judge in Boston at a date and time to be set.
Nearly two years later, the Immigration Court sent a notice of hearing to Laparra at the address he provided, notifying him that his initial hearing would take place at the Boston Immigration Court on April 8, 2010 at 1:30 p.m., and further notifying him of the consequences if he failed to appear.
When he didn’t appear for the hearing, he was ordered removed in absentia (in his absence).
Following the removal order, Laparra moved to reopen and terminate his proceedings, arguing that the Immigration Judge didn’t have jurisdiction over the proceedings because the NTA did not include the date and time of the hearing. The Immigration Judge denied his motion, and Laparra appealed it to the Board of Immigration Appeals (“BIA”), but the BIA dismissed his appeal.
Laparra then filed a new motion to terminate relying on the Supreme Court case of Niz-Chavez v. Garland, again arguing that the Immigration Judge didn’t have jurisdiction, and further arguing that the in absentia removal order must be rescinded because he wasn’t served with the type of “written notice” contemplated by the statutes.
The Issues to be Decided
Does a Notice to Appear that fails to include a specific date and time of the initial hearing nonetheless vest the Immigration Judge with jurisdiction over the proceedings?
Can an in absentia order of removal be entered when the Notice to Appear failed to include a specific date and time of the initial, but a later written notice of hearing did include that information?
The BIA answered yes to both of these questions, and here’s why …
Legal History that the BIA Considered
In coming to its decision, the BIA considered the following cases and decisions:
Pereira v. Sessions, 138 S.Ct. 2105 (2018): Pereira was issued a notice to appear that did not specify the date and time for his initial hearing, and a later notice of hearing was sent to the wrong address. Pereira then failed to appear for the hearing and was ordered removed in absentia. The order was later rescinded and proceedings were reopened, but the Immigration Judge then determined that the later notice of hearing (that Pereira didn’t receive) triggered the “stop-time” rule for purposes of cancellation of removal. The Supreme Court ultimately held that a noncompliance NTA which does not specify the time or place of the initial hearing is not a notice contemplated by Section 239(a) of the Immigration and Nationality Act (“INA”) and cannot trigger the “stop-time” rule.
Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018): The BIA held that an NTA that does not specify the time or place of a noncitizen’s initial removal hearing still vests an Immigration Judge with jurisdiction over the removal proceedings so long as a notice of hearing specifying this information is later served on the noncitizen.
Matter of Pena-Mejia, 27 I&N Dec. 546, 548 (BIA 2019): The BIA held that an Immigration Judge may enter an in absentia order of removal “if a written notice containing the time and place of the hearing was provided either in a notice to appear … or in a subsequent notice [of hearing specifying] the time and place of the hearing”.
Matter of Miranda-Cordiero, 27 I&N Dec. 551 (BIA 2019): The BIA held that rescinding an in absentia removal order was not required if a noncitizen failed to provide an address where a notice of hearing could be sent, regardless of whether the NTA specified the time and place of hearing.
Niz-Chavez v. Garland, 141 S.Ct. 1474 (2021): The Supreme Court held that an NTA must be a single document containing all the information (including time and place of the removal hearing) before it will trigger the “stop-time” rule. Therefore, any subsequent written notice of hearing will not cure a deficient NTA for purposes of the “stop-time” rule.
Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021): The BIA held that Niz-Chavez did not alter the BIA’s prior conclusion in Matter of Bermudez-Cota..
The BIA's Ruling
Addressing Niz-Chavez specifically, the BIA distinguished that case from Laparra’s by turning to the language of the statutes at issue.
The BIA noted that the statute at issue in Niz-Chavez (relating to the “stop-time” rule) refers to “a notice to appear” which the Supreme Court interepreted to be a singular NTA, whereas the statutes in Laparra’s case simply state that a noncitizen can be ordered removed in absentia if he fails to appear “after written notice” of the hearing date and time is provided to him in either an NTA or a subsequent notice.
The BIA reasoned that this makes sense because in removal proceedings, there may be multiple hearing dates and the failure to appear at any of those hearing dates can subject the noncitizen to an in absentia order of removal. Indeed, the BIA noted that if it was to adopt Laparra’s reasoning, a non-citizen whose initial NTA was noncompliant could intentionally fail to appear at any scheduled hearing and the Immigration Judge would be powerless to order him removed in his absence, even if the noncitizen had already previously appeared before the Judge.
The BIA did recognize that there is a Fifth Circuit Court of Appeals opinion that reaches a contrary conclusion, but since Laparra’s case arose in the First Circuit, the BIA did not address the contrary opinion further. (Had Laparra’s case been in the Fifth Circuit, that opinion would have been controlling on the BIA.)
In the end, the BIA rejected Laparra’s arguments in their entirety and the order removal that was entered in Laparra’s absence remains valid and in effect.
What if I'm in Deportation Proceedings?
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Disclaimer: This post is for informational purposes only, and shall not be considered legal advice, or be used as a substitute for competent counsel. No attorney-client relationship exists without a signed agreement.
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