www.nyvisalawyer.com

SCOTUS Limits Ability To Reopen & Rescind In Absentia Removal Orders

return to sender

The Supreme Court issued a decision limiting the ability of noncitizens to reopen and rescind in absentia orders of removal issued against them in their June 14, 2024 decision, Campos-Chaves v Garland, 602 U.S. ___ (2024).

The relevant portions of the Court’s decision are quoted below. You can read the entire decision at the Supreme Court’s Website.

FACTS OF THE CASE

The facts of the case involved noncitizens who received a defective NTA that lacked the time and place of the hearing. Each later received a notice of hearing containing the time and place of the hearing. 

Mr. Campos-Chaves moved to rescind his in absentia removal order because the Department of Homeland Security never gave him a valid NTA with notice of the date and time of his hearing. SCOTUS said that because DHS later gave him a “Notice of change in time or place of proceedings,” that counts as proper notice and cures the defective NTA, so he could not reopen his deportation order.

THE COURT’S DECISION

With this decision, the Court backtracked from two recent decisions that had emphasized the importance of a complete NTA in immigration proceedings. In Niz-Chavez and Pereira , SCOTUS said that an NTA must include a wide range of information in a single document, including the removal charges, the facts to support those charges, notice of the right to be represented by an attorney, and the time and place of removal proceedings. The dissenting opinion noted this unexplained departure from their prior precedent.

The decision also seems to contradict BIA case law. Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022) (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); Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024) (DHS cannot remedy a defective NTA by filing an I-261). Indeed, in dicta, the majority opinion states that: “[a]lthough an alien who receives only paragraph (2) notice must still attend the hearing or face in absentia removal, he can raise issues regarding incomplete notice at that time.”

 

GOING FORWARD

Respondents can and should continue to object to proceedings taking place based on a defective NTA. They can cite Matter of Fernandes and Matter of Aguilar Hernandez to preserve a timely objection to the defective NTA.

Niz-Chavez and Pereira remain good law and are not overruled by this decision as to the stop-time rule. So a statutorily compliant NTA is still required in order to trigger the stop-time rule for cancellation of removal.

 



Leave a Reply