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EOIR issues guidance on Pereira v. Sessions, announcing changes in NTA filings and case scheduling

  1. Date Announced

    Dec. 21, 2018

    Pursuant 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]

    View Policy Document
  2. Effective Date of Change

    Jan. 31, 2019
  3. Subsequent Action

    August 31, 2018 Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018)
Status: Final/Actual
Type of Action: Change in Practice
Subject Matter: Hearings and Adjudications
Agencies Affected: CBP ICE USCIS EOIR

Commentary

AIC / CLINIC Practice Advisory on Pereira v. Sessions

In Pereira v. Sessions, the Supreme Court found 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 topic post-BIA precedent in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018).

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