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Original Date Announced
December 21, 2018Pursuant to the Director's Policy Memo 19-08, EOIR will now provide dates and times to DHS for use on Notices to Appear (NTAs) for certain non-detained cases, in accordance with the Supreme Court's decision in Pereira v. Sessions. The memo states that the three DHS components that can issue NTAs -- CBP, ICE, and USCIS -- all have access to EOIR's Interactive Scheduling System (ISS).
EOIR will now reject all NTAs with facially incorrect dates (i.e., falling on a holiday, weekend, or date or time when the assigned court is not open). If an NTA is not filed with the immigration court in time for the date and time of the hearing it references, EOIR will classify that case as a "failure to prosecute." With respect to any case filed within 10 days of the date and time on the NTA, it is left to the IJ's discretion whether the case will go forward per the NTA or will be reset.
[ID #198]
EOIR Policy Memorandum (PM 19-08): Acceptance of Notices to Appear and Use of Interactive Scheduling SystemEffective Date
January 31, 2019Subsequent Trump-Era and Court Action(s)
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August 31, 2018
Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018)
On August 31, 2018, the BIA issued Matter of Bermudez-Cota, which distinguishes Pereira v. Sessions and holds that NTAs issued without hearing dates or locations for initial removal hearings do vest the immigration courts with jurisdiction over removal proceedings so long as a notice of hearing with a date and location is later sent to the non-citizen respondent.
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September 23, 2021
2021.09.23 Matter of Arambula-Bravo 28 I&N Dec. 388 (BIA 2021)
On September 23, 2021, the BIA issued Matter of Arambula-Bravo, which followed the Board's previous decision in Matter of Bermudez-Cota, holding that NTAs that lack details on the time and place of a non-citizen's initial removal hearing do not deprive the Immigration Court of jurisdiction over removal proceedings. The decision distinguishes Niz-Chavez v. Garland, reasoning that the Supreme Court's holding in Niz-Chavez addressed only the stop time rule, not the Immigration Court's jurisdiction over removal proceedings.
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July 3, 2023
Madrid-Mancia v. Attorney General of the United States
On July 3, 2023, the Third Circuit held in Madrid-Mancia v. Attorney General of the United States that when EOIR sends a Notice to Appear (NTA) that lacks time-or-place information and a subsequent Notice of Hearing with a removal hearing date, the individual cannot be removed in absentia for failing to appear. The Third Circuit builds on Pereira v. Sessions, holding that the two-step process not only fails to trigger the stop-time rule, but also fails to meet the statutory notice requirement for entering an in absentia removal order.
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
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Current Status
Fully in EffectOriginal Trump Policy Status
Status: Final/Actual In LitigationTrump Administration Action: Change in PracticeSubject Matter: Hearings and Adjudications
Documents
Trump-Era Policy Documents
- New Policy
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Subsequent Action
Original Source:
2018.08.31 Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018)
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Subsequent Action
Original Source:
2021.09.23 Matter of Arambula-Bravo 28 I&N Dec. 388 (BIA 2021)
- Subsequent Action
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Commentary
Original Source:
AIC / CLINIC Practice Advisory on Pereira v. Sessions
- Commentary
Commentary
AIC / CLINIC Practice Advisory on Pereira v. Sessions
In Pereira v. Sessions, the Supreme Court held that an NTA is defective if it does not contain a date and time for the hearing, which runs counter to a long-standing DHS practice of omitting the information and waiting for EOIR to functionally complete the NTA through a subsequent hearing notice. This practice advisory reviews the Supreme Court decision and its implications for applications for cancellation of removal and post-proceedings voluntary departure. It also covers the post-BIA precedent in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018).
Go to articleTRAC DHS Fails to File NTAs
The Transactional Records Access Clearinghouse (TRAC) at Syracuse University found that as of the end of September 2022, Immigration Court judges dismissed a total of 63,586 cases because CBP officials had failed to file a Notice to Appear (NTA) in the case with the Immigration Court. CBP agents can enter new cases and schedule initial hearings through the Court's Interactive Scheduling System (ISS), but CBP personnel must still submit a copy of the NTA to the Court, which they have failed to do for many cases.
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