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Notices to Appear Without Hearing Dates and Times

Are you currently in removal proceedings before an immigration court? If so, you should have received a document initiating the removal proceedings called a Notice to Appear from the Department of Homeland Security. Section 239(a)(1) of the Immigration and Nationality Act requires that every notice to appear list the date and time of your first immigration court hearing. However, there are often notices issued that say “to be set” where the date and time should be listed, instead of providing a specific date for the hearing. On August 4, 2022, the Board of Immigration Appeals issued a binding decision, Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022), that discusses the defectiveness of such notices, and provides clarity on what is to happen when an individual is served with a defective Notice to Appear that doesn’t list the specific date and time of their hearing.

The BIA held that a defective notice does not mean that the case cannot proceed or that the case against the Respondent must be terminated. They did, however, also hold that the requirement that a date and time be listed is a mandatory claim-processing rule. It provided that Respondents, or their attorneys, must raise an objection when the notice lacks a date and time, and that it must be raised prior to pleadings being entered in a case. Departing from its decisions in prior cases, the BIA also held that the Respondent does not need to show that the lack of date and time on the notice prejudiced them in some way. The Respondent just needs to object to the fact that no date or time was stated on the Notice to Appear.

Although the Immigration Judge may allow the government to remedy the defective notice without terminating proceedings, it is possible to have your case dismissed! Additionally, if a judge fails to address an objection based on a defective notice to appear, you may have luck appealing the issue even if your case is otherwise denied.

The attorneys at Tanner Law Offices can assist you or your loved ones both with determining if you have a defective Notice to Appear and with raising a proper objection and seeking termination of your case. We are experienced in representing clients before the Immigration Courts. Please contact our office at 717-836-0471 to schedule a consultation today.