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An Incurable Notice to Appear

Matter of Aguilar Hernandez

Matter of Aguilar Hernandez

January 31, 2024, the Board issued a decision in Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024) finding: The Department of Homeland Security cannot remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261 because this remedy is contrary to the plain text of 8 C.F.R. § 1003.30 and inconsistent with the Supreme Court’s decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021).  Full Decision.

Basis for the Board’s Decision

  1.  Filing a Form I-261 to remedy the defect Notice to Appear  is contrary to the plain text of 8 C.F.R. § 1003.30.
  2.  Filing a Form I-261 to remedy the defect Notice to Appear is inconsistent with the Supreme Court’s decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021).  Full Decision.

Prior Decisions 

  1. Last year the BIA addressed this issue and came to the same conclusion in an unpublished decision an attorney posted online. Matter of X-, June 9, 2023.
  2. Niz-Chavez v. Garland, 593 U.S. 155 (2021)
  3. Pereira v. Sessions, 138 S. Ct. 2015 (2018)

Impact of The Decision

This case will help to make some people eligible for cancellation of removal because the Board says that respondents will continue to accrue physical presence in the US for purposes of cancellation of removal until the Department has properly cured the defective Notice to Appear (NTA)1.  

As a result, some people who think they were ordered removed can argue they have grounds to reopen their proceedings and then may be able to pursue 42b cancellation of removal in reopened proceedings. Further, respondents that were originally put into removal proceedings before they had 10 years in the US, may actually be eligible for cancellation of removal if their initial NTA was deficient and DHS has yet to cure it, or the Department cured it after they accrued 10 years of presence using this new manner of calculation established by this decision2

 Indeed, it is a strategic decision by a respondent to raise (or not raise) an objection to a defective notice to appear lacking the date and time of the initial hearing before the Immigration Judge. By electing not to raise the objection, the respondent’s notice to appear remains defective and the respondent will continue to accrue continuous physical presence in the United States for the purposes of cancellation of removal.4 Conversely, if after the respondent raises a timely objection, DHS remedies the defective notice to appear, then the “stop-time” rule prevents the respondent from accruing additional physical presence for purposes of cancellation of removal. See INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).  

1.Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024)

2.  Id at 779.

More Information

The full decision can be found at https://www.justice.gov/d9/2024-01/4071.pdf.


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