Closing the Loop on 'Defective NTAs'

Further explaining the importance of Ortiz-Santiago

By Andrew R. Arthur on May 29, 2019

On May 23, 2019, I wrote a post captioned "Seventh Circuit Issues Key Ruling on Notices to Appear, Could save tens of thousands of removal cases". In that post, I failed to underscore the danger that would follow if a reviewing court, and especially the Supreme Court, were to find that a Notice to Appear (NTA, the charging document in a removal proceeding, similar to a criminal complaint or indictment) that did not contain a time or date for an initial removal hearing were defective to such a degree that the subsequent removal proceedings were invalid. It is an important enough point to return to in order to explain in greater depth. 

According to the Transactional Records Access Clearinghouse (TRAC), the average removal case has been pending for 726 days, meaning that just short of two years have passed from the time the NTA in that average case was filed with the immigration court to the present. Put another way, the average NTA in a currently pending removal case was filed sometime in May 2017. As I noted in that May 23 post, "almost 100 percent of the NTAs issued" between 2015 and 2018 "omitted the time and date of the proceedings."

Through April 2019, according to TRAC, there were 892,517 cases pending before the approximately 420 immigration judges in the nation's 63 immigration courts. Not all of those cases have been pending for almost two years, of course: some of them were recently filed, and some of them have been pending for more than five years. That said, however, there are a large number of NTAs that were filed as far back as May 2017, and others that were filed at any point between 2015 and 2018. 

All of this is an issue because the Supreme Court in Pereira v. Sessions (which was issued in June 2018) had held that an alien who had been served with an NTA that did not specify the time and date of the initial removal hearing was not subject to the "stop-time rule" from applying for cancellation of removal until a new NTA containing that information was reserved. To be eligible for cancellation under section 240(b)(1)(A) the of the Immigration and Nationality Act (INA), the alien had to have "been physically present in the United States for a continuous period of not less than 10 years" prior to filing the application for their relief. The INA further states that this period of continuous residence ends when the alien is served with an NTA as defined in statute, that is, the "stop-time rule."

The logic behind this provision is simple: Congress did not want aliens delaying their removal proceedings by filing frivolous motions to continue in order to become eligible for cancellation. For that reason, under the INA, as soon as the alien is served the NTA, continuous presence stops. 

In Pereira, the Supreme Court held that an NTA that did not contain a time and date of the initial master calendar hearing in immigration court did not satisfy the statutory definition of an "NTA" to trigger the stop-time rule. Therefore the alien there (who had accrued 10 years of lawful presence after the service of that NTA) could apply for cancellation, and the case was remanded.

This is a different issue from whether those NTAs were ineffective to initiate removal proceedings, such that any removal proceedings that began with an NTA that did not contain a time or a date would have to be terminated. The Supreme Court somewhat explicitly did not answer that question, explaining that the issue it was deciding (eligibility for cancellation) was "narrow."

That did not stop alien respondents from citing Pereira for the proposition that their cases should be terminated based on the logic in Pereira, because their NTAs did not contain a time and date for the initial hearing. That is what had occurred in the Seventh Circuit case I referred to in that May 23 post, Ortiz–Santiago v. Barr.

As I noted in that post:

The circuit court held that the time and date requirement was not "jurisdictional" (such that a failure to comply would void the proceedings entirely), but rather "was a claim-processing rule, violations of which can be forfeited if an objection is not raised in a timely manner."

Because the alien there had failed to object to the fact that his NTA did not contain the time and date for his initial removal hearing, and proceeded with his case, he had forfeited his ability to subsequently file a motion to terminate those proceedings.

Here is what would happen if those NTAs were deemed insufficient to initiate removal proceedings: the alien could file a motion to terminate the removal proceedings, which the court would have to grant. Absent the logic in Ortiz–Santiago, that motion could be filed at any point in the proceedings, even when it was on review by the circuit court.

This would mean that months or years could go by in which the immigration court (and possibly the Board of Immigration Appeals (BIA) and circuit court) and government expended resources on removal proceedings that would simply have to be terminated. The backlog above would grow that much larger as cases were terminated and reinitiated, and U.S. Immigration and Customs Enforcement (ICE) would have to expend significant resources to locate and serve the alien, and file the NTA with the immigration court. Realistically, at least some of those aliens would disappear between the time that they filed the motion to terminate and the time that ICE attempted to reserve them with a new NTA.

Worse, the aliens who were ordered removed in removal proceedings that commenced with the filing of an NTA that did not contain the time and date of the initial hearing could move to reopen and terminate those proceedings. 

All told, tens of thousands of cases (many of which had already been completed) would have to be refiled and heard again, which could add years to the alien’s stay in the United States, even if the alien were ordered removed again.That would increase the backlog even more. 

Under Ortiz-Santiago, most of those aliens would be deemed to have forfeited their right to terminate their removal proceedings, and the removal cases could proceed without having to be terminated and restarted.

There are two important points to note. The first is the fact that the BIA in Matter of Bermudez-Cota (which was issued in response to Pereira) has held that that a two-step notice process, that is filing of an NTA without a time and date followed by the service of the hearing notice on the alien by the immigration court, is sufficient to meet the statutory notice requirements to initiate removal proceedings. That decision was premised in part, however, on decisions from four separate circuits, including one from the Seventh Circuit. The Seventh Circuit, in Ortiz-Santiago, calls that earlier precedent into question in light of Pereira, and it is possible that the other three circuits will follow suit.  Given this, Ortiz-Santiago is a reasonable compromise.

The second is that (hopefully) in the 11 months since Pereira was decided, the Department of Homeland Security (DHS) has worked out a way to include the time and date of the initial hearing on the NTAs it is now serving. If true, those NTAs would be valid, and Pereira would not apply at all.

So again, Ortiz-Santiago provides alien respondents in removal proceedings an opportunity to move to terminate their cases. It significantly limits that opportunity, however, and likely saves ICE and the immigration courts significant resources in what are likely to be tens of thousands of cases. It is possible that the Supreme Court will eventually endorse the BIA's logic in Matter of Bermudez-Cota, but that is not a sure thing. For that reason, the Seven Circuit's decision provides an important alternative procedure that could preserve the validity of those tens of thousands of removal cases, both completed and ongoing.