The Cost of Cutting Corners: Jurisdictional Implications Flowing from Removal Proceedings Commenced by a Defective Notice to Appear
A Notice to Appear (NTA) in removal proceedings is a written notice served on noncitizens that, among other things, alerts them that they must appear in immigration court for a hearing. In 2018, contrary to statute and common sense, the Department of Homeland Security (DHS) admitted to issuing almost all NTAs without the accurate date, time, and place of the initial proceeding. In response, the Supreme Court, in Pereira v. Sessions, clarified that an NTA without the date and place of the hearing is statutorily defective and cannot be used to bar noncitizens from cancellation of removal. However, DHS circumvented Pereira by issuing NTAs with “fake dates” and using a two-step notice process, whereby a second notice with the date and place cured an initial defective NTA. In April 2021, the Court sought to address the problem of the issuance of defective NTAs and its consequences once and for all. In Niz-Chavez v. Garland, the Court held that DHS must serve a “single and comprehensive notice,” with the date and place of the proceeding, on noncitizens to trigger the stop-time rule for purposes of cancellation of removal. This note argues that the Niz-Chavez holding has implications beyond the stop-time rule and soundly contests the jurisdiction of immigration courts when they have commenced proceedings with a defective NTA. Removal proceedings should be terminated because Niz-Chavez (1) foreclosed the two-step notice process; (2) affirmed the supremacy of a statute’s clear text over self-serving regulations; and (3) recognized the serious and far-reaching implications of commencing removal proceedings against a noncitizen. To further clarify this stance, this note proposes an amendment to the Immigration and Nationality Act confirming the statutory requirements for the issuance of NTAs and asserting that jurisdiction only vests in immigration courts if those statutory requirements are met. The purpose of this amendment is to prohibit the government from changing the procedural and jurisdictional framework of removal proceedings to serve its shifting interests, thoughtlessly ruining the lives of noncitizens and their families.
Juliana M. Lopez,
The Cost of Cutting Corners: Jurisdictional Implications Flowing from Removal Proceedings Commenced by a Defective Notice to Appear,
88 Brook. L. Rev.
Available at: https://brooklynworks.brooklaw.edu/blr/vol88/iss1/8