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Original Date Announced
December 21, 2018After the Supreme Court's decision in Pereira v. Sessions, EOIR provided dates and times to DHS for use on Notices to Appear (NTAs) for certain non-detained cases. On December 21, 2018, however, EOIR issued Policy Memo 19-08 stating that all three DHS components that can issue NTAs -- CBP, ICE, and USCIS -- now have access to EOIR's Interactive Scheduling System (ISS), and therefore EOIR will not provide initial hearing dates after January 31, 2019.
EOIR will also 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 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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Biden Administration Action: Revoked/Replaced
August 22, 2024PM 24-01, Updated Guidance for Receipt of Notices to Appear Filed by DHS
On August 22, 2024, EOIR, issued Policy Memo 24-01, requiring DHS to file NTAs with EOIR within 120 days after scheduling a non-detained case. If DHS fails to file within this timeline, EOIR will designate that case as a failure to prosecute (FTP). This change accounts for new technology which allows DHS to file the NTA and schedule the hearing simultaneously, and is being implemented to remedy scheduling problems and the loss of hearing slots when DHS fails to file a timely NTA. Under PM 24-01, EOIR will continue to reject any NTA with facially incorrect dates, in compliance with Pereira v. Sessions.
This Biden Administration policy supersedes and rescinds the Trump-era policy identified in this entry, PM 19-08, which allowed DHS to file NTAs with the immigration court up until the date and time of court hearings.
View DocumentCurrent Status
Not in effectMost Recent Action
August 22, 2024 Action: Revoked/Replaced PM 24-01, Updated Guidance for Receipt of Notices to Appear Filed by DHSAugust 22, 2024Acted on by Biden Administration
Original Trump Policy Status
Status: Final/ActualTrump 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
Biden Administration Policy Documents
To provide information, corrections, or feedback, please email IPTP.feedback@gmail.com
To provide information, corrections, or feedback, please email IPTP.feedback@gmail.com
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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