Aguilar Hernandez

Cite as 

 (BIA 2024)                              Interim Decision #4071




       Matter of Luis AGUILAR HERNANDEZ, Respondent
                            Decided January 31, 2024

                          U.S. Department of Justice
                   Executive Office for Immigration Review
                       Board of Immigration Appeals


  The Department of Homeland Security cannot remedy a notice to appear that lacks the
date and time of the initial hearing before the Immigration Judge by filing a Form I-261
because this remedy is contrary to the plain text of 

 and inconsistent
with the Supreme Court’s decision in Niz-Chavez v. Garland, 

 (2021).

FOR THE RESPONDENT: Bashir Ghazialam, Esquire, San Diego, California
FOR THE DEPARTMENT OF HOMELAND SECURITY:                          Courtney Cataudella,
Associate Legal Advisor
BEFORE: Board Panel: WETMORE, Chief Appellate Immigration Judge; MULLANE
and BAIRD, Appellate Immigration Judges.
WETMORE, Chief Appellate Immigration Judge:


    The respondent filed an interlocutory appeal challenging the Immigration
Judge’s decision denying his motion to terminate these removal proceedings.
The respondent argues that the notice to appear issued in his case did not
comply with the time and place requirements under section 239(a)(1)(G)(i)
of the Immigration and Nationality Act (“INA”), 

(a)(1)(G)(i)
(2018), and that the Department of Homeland Security (“DHS”) cannot
remedy the defect by the filing of a Form I-261, Additional Charges of
Inadmissibility/Deportability. The interlocutory appeal will be sustained,
and the record will be remanded to the Immigration Judge.

             I. FACTUAL AND PROCEDURAL HISTORY
    On April 10, 2019, DHS personally served the respondent, a native and
citizen of Mexico, with a notice to appear. 1 On June 21, 2019, the respondent

1
   The record contains copies of two notices to appear. Both notices were served on the
respondent. One notice to appear orders the respondent to appear before the Los Angeles
Immigration Court, whereas the other notice to appear orders the respondent to appear
before the Adelanto Immigration Court. Only the notice to appear before the Adelanto
Immigration Court contains a date stamp demonstrating that it was filed with an
Immigration Court. That notice to appear, which was admitted into evidence as Exhibit 1,

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appeared at the Los Angeles Immigration Court for his initial hearing before
the Immigration Judge. Before pleading to the charges in the notice to
appear, he moved to terminate the removal proceedings, arguing that the
notice to appear was legally defective because it did not contain the date and
time of his initial removal hearing before the Immigration Judge. INA
§ 239(a)(1)(G)(i), 

(a)(1)(G)(i). The Immigration Judge
denied the respondent’s motion to terminate the proceedings.
    On October 3, 2022, the respondent renewed his date and time objection
and again moved to terminate these removal proceedings, citing the Supreme
Court of the United States’ decision in Niz-Chavez v. Garland, 

(2021), and our decision in Matter of Fernandes, 

(BIA 2022). The respondent maintained that the notice to appear issued in
this case was legally defective, that he made a timely objection to the
defective notice to appear prior to pleadings, and that these proceedings
should be terminated. DHS opposed termination, arguing that the
Immigration Judge has the discretion to allow DHS to remedy the defective
notice to appear rather than terminating these proceedings. DHS proposed
to remedy the defective notice to appear by filing a Form I-261 containing
the appropriate date and time and serving the Form I-261 on the respondent.
The respondent argued that the filing of the Form I-261 was not an
appropriate remedy for the defective notice to appear. On October 20, 2022,
the Immigration Judge denied the respondent’s motion to terminate without
issuing a written or oral decision and allowed DHS to remedy the defective
notice to appear with the Form I-261.
    On October 24, 2022, DHS filed the Form I-261 with the Immigration
Court and served it on the respondent by mail. The Form I-261 purports to
“[a]mend the Notice to Appear, dated April 10, 2019” and orders the
respondent to appear before the Santa Ana Immigration Court on “March 24,
2023, at 8:30 a.m.” It also states that “[t]he initial hearing date was May 13,
2019,” at the Adelanto Immigration Court. On November 18, 2022, the
respondent filed the instant interlocutory appeal of the Immigration Judge’s
denial of his motion to terminate. We held oral argument on the respondent’s
interlocutory appeal.2 

(e)(7) (2020).


includes the respondent’s pleadings as notated by the Immigration Judge, and it orders the
respondent to appear before the Adelanto Immigration Court at a date and time “to be set.”
DHS filed the notice to appear with the Adelanto Immigration Court on April 15, 2019.
On May 2, 2019, venue was changed to the Los Angeles Immigration Court following the
respondent’s release from DHS custody. On May 9, 2019, the Los Angeles Immigration
Court mailed the respondent a notice of hearing informing him that his master calendar
hearing was scheduled for June 21, 2019, at 8:00 am.
2
   Appellate Immigration Judge Earle Wilson, who was originally a member of the panel
that heard oral argument in this case, has passed away. Appellate Immigration Judge

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                                  II. DISCUSSION
    The issue in this case is whether it is permissible for DHS to use a Form
I-261 to amend a defective notice to appear that lacks the date and time for
the respondent’s initial hearing before the Immigration Judge.3 We review
this issue de novo. 

(d)(3)(ii).

                                A. Legal Background

    The backdrop for this issue is provided by two decisions of the Supreme
Court: Pereira v. Sessions, 

 (2018), and Niz-Chavez. In
Pereira, 138 S. Ct. at 2114, the Court concluded that the so-called
“stop-time” rule in section 240A(d)(1) of the INA, 8 U.S.C. § 1229b(d)(1)
(2018), is not triggered by a notice to appear that omits the time and place of
the removal proceedings. Thereafter, in Niz-Chavez, 593 U.S. at 160–62, the
Court reasoned that a notice to appear that lacks the time and place of the
initial hearing before the Immigration Judge could not be remedied by the
Immigration Court’s issuance of a notice of hearing that informs the
respondent when to appear for the initial hearing, and thus the defective
notice to appear does not trigger the “stop-time” rule for purposes of
cancellation of removal. See INA § 240A(d)(1), 8 U.S.C. § 1229b(a)(1).
    While this case does not involve the operation of the “stop-time” rule for
purposes of cancellation of removal, other related claims like this one arise
from a defective notice to appear that lacks the date and time of the initial
hearing before the Immigration Judge. In Matter of Fernandes, we resolved
some, but not all, of the issues surrounding a defective notice to appear. In
that case, the respondent received a notice to appear that lacked the date and
time of his initial hearing before the Immigration Judge, and he objected. We
concluded that the time and place requirement in section 239(a)(1) of the
INA, 

(a)(1), is a claim-processing rule and not a jurisdictional
requirement. Matter of Fernandes, 28 I&N Dec. at 608. Because it is a
claim-processing rule, a respondent must make a timely objection (or

Michael Baird replaced him on the panel and has familiarized himself with the record of
proceedings, including a transcript of the oral argument.
3
   The respondent does not have a final order of removal and so his appeal is interlocutory.
Ordinarily, we do not consider interlocutory appeals, but this interlocutory appeal raises an
important legal issue regarding a “recurring problem[] in the handling of cases by
Immigration Judges.” Matter of M-D-, 

 (BIA 2007); see also Matter
of Guevara, 

, 239–45 (BIA 1990, 1991) (considering a respondent’s
interlocutory appeal of an Immigration Judge’s deportability finding); Matter of Dobere,

, 188–89 (BIA 1990) (considering DHS’ interlocutory appeal of an
Immigration Judge’s decision to change venue). No one disputes that this appeal meets
our test for considering an interlocutory appeal.

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otherwise forfeit the objection) but need not show prejudice. Id. at 609,
611–13. Finally, we concluded that when faced with a timely objection, an
Immigration Judge should afford DHS an opportunity to remedy the
defective notice to appear. Id. at 616. In that case, DHS had not tried to
remedy the defective notice to appear, so we remanded the record to the
Immigration Court to afford DHS that opportunity. Id. We left open the
question of how DHS may (or may not) remedy a defective notice to appear
because that issue was not before us. Id. We suggested, however, that “DHS
may decide it is best to request dismissal without prejudice and file a new
notice to appear,” as that would eliminate the issue altogether. Id.

                                     B. Analysis

    The respondent objected to the defective notice to appear lacking the date
and time of the initial hearing during his first hearing before the Immigration
Judge and prior to the entry of pleadings. The respondent’s objection is
therefore timely under our decision in Matter of Fernandes. See id. at
610–11. We must now decide whether DHS’ proposed remedy to the
defective notice to appear, the filing and service of a Form I-261, is an
effective remedy under the INA and its correspondent regulations. We
conclude that it is not.
    The regulation at 

 (2024), which authorizes the use of
a Form I-261, is the starting point for determining whether DHS may remedy
a defective notice to appear that lacks the date and time of the initial hearing
before the Immigration Judge by filing a Form I-261. The regulation
provides: “At any time during deportation or removal proceedings,
additional or substituted charges of deportability and/or factual allegations
may be lodged by the Service in writing.” 

. DHS argues
that this provision authorizes it to use a Form I-261 to remedy a defective
notice to appear by including a specific date and time. Specifically, DHS
reasons that because it can use a Form I-261 to effectively amend the notice
to appear in other contexts, it can likewise do so in this context.
    The plain text of 

 does not support DHS’ argument,
because it does not allow amendment of the date and time on the notice to
appear by using a Form I-261. See, e.g., Kisor v. Wilkie, 

 (2019) (requiring agencies to follow the plain language of a regulation);
Sameena Inc. v. U.S. Air Force, 

, 1153 (9th Cir. 1998) (“The
Supreme Court has long recognized that a federal agency is obliged to abide
by the regulations it promulgates.”). The text of 

unambiguously states that a Form I-261 can only be used to alter two aspects
of the notice to appear: (1) to add or substitute charges; or (2) to add or
substitute factual allegations. 

.

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    Charges are the legal grounds for removal or deportation. See INA
§§ 212, 237, 

, 1227 (2018). The date and time of the initial
hearing before the Immigration Judge are not charges. Nor are the date and
time of the initial hearing before the Immigration Judge factual allegations.
Factual allegations ordinarily include an identification of the country where
the respondent is a citizen, how the respondent came to the United States,
and any other pertinent information including criminal convictions.
Moreover, the structure of the notice to appear belies DHS’ argument that
the date and time of the hearing is a factual allegation. The factual allegations
are contained in the top half of the form, followed by the charges. The space
for identifying the date and time on the notice to appear is at the bottom of
the form and prefaced by “YOU ARE ORDERED to appear.”
    DHS acknowledges the plain language of 

 but argues
that the Board has the authority to interpret the regulation broadly. It asserts
that because the regulation does not expressly prohibit its expansive reading,
we can authorize it. We disagree. The plain text of the regulation expressly,
and solely, authorizes DHS to amend the factual allegations and charges in a
notice to appear through the filing of a Form I-261. 

.
    Interpreting 

 as DHS proposes is also problematic for
another reason. In Niz-Chavez, the Supreme Court emphasized the
government’s obligation to “turn square corners.” Niz-Chavez, 

. Just as we expect a respondent to comply with an Immigration Judge’s
scheduling order or to make an asylum claim on an asylum application (Form
I-589), it is only reasonable to expect the government to utilize its official
forms in the way the regulations authorizing the use of those forms prescribe.
Permitting DHS to use a Form I-261 to amend the date and time of the
defective notice to appear as an administrative convenience would not be
faithful to our obligation to “turn square corners,” and we decline to do so in
this case. 

 (providing that “pleas of administrative
inconvenience and self-serving regulations never ‘justify departing from the
statute’s clear text’” (quoting Pereira, 138 S. Ct. at 2118)); see also Matter
of Ponce De Leon, 

 (BIA 1996) (“The Board and
Immigration Judges . . . only have such authority as is created and delegated
by the Attorney General [through the regulations].”).
    In addition to being foreclosed by the plain text of 

,
DHS’ argument is also contrary to the Supreme Court’s holding in
Niz-Chavez that section 239(a)(1) of the INA, 

(a)(1), requires
“‘a’ single document containing the required information.” Niz-Chavez,

. In Niz-Chavez, the Supreme Court expressly rejected the
argument that a notice of hearing can cure a defective notice to appear as
“notice-by-installment.” 

 at 160–61. Because all the information required
by section 239(a)(1) of the INA, 

(a)(1), would not be

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contained in a “single document,” we conclude that DHS’ proposed remedy
for the defective notice to appear—the filing of the Form I-261 to add the
missing date and time of the initial hearing—is not consistent with the
Supreme Court’s decision in Niz-Chavez, 

.
    DHS also argues that the respondent has already received a remedy for
the defect in the notice to appear because he has continued to accrue
continuous physical presence in the United States for purposes of
cancellation of removal. On this point, however, DHS confuses a remedy
with a result. The result of failing to include the date and time of the initial
hearing on the notice to appear is that the respondent’s accrual of continuous
physical presence in the United States for purposes of cancellation of
removal is not impacted by the “stop-time” rule in section 240A(d)(1) of the
INA, 8 U.S.C. § 1229b(d)(1). See Niz-Chavez, 

 (“To trigger
the stop-time rule, the government must serve ‘a’ notice containing all the
information Congress has specified.”). But that result does not mean that
DHS does not need to remedy the defect in the notice to appear when an
objection is timely raised by the respondent. See Matter of Fernandes,
28 I&N Dec. at 608–09 (providing that section 239(a)(1) of the INA, 

(a)(1), is a mandatory claim-processing rule and must be enforced
where it is timely and properly raised); see also Eberhart v. United States,

 (2005) (providing that “claim-processing rules . . . [ensure]
relief to a party properly raising them”).
    Indeed, it is a strategic decision by a respondent to raise (or not raise) an
objection to a defective notice to appear lacking the date and time of the
initial hearing before the Immigration Judge. By electing not to raise the
objection, the respondent’s notice to appear remains defective and the
respondent will continue to accrue continuous physical presence in the
United States for the purposes of cancellation of removal.4 Conversely, if
after the respondent raises a timely objection, DHS remedies the defective
notice to appear, then the “stop-time” rule prevents the respondent from
accruing additional physical presence for purposes of cancellation of
removal. See INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1).

                                III. CONCLUSION
   We will sustain the respondent’s interlocutory appeal challenging DHS’
use of a Form I-261 to remedy the defective notice to appear issued in this
case. DHS cannot remedy a notice to appear that lacks the date and time of
the initial hearing before the Immigration Judge by filing a Form I-261
4
   A defective notice to appear will likewise result in the respondent continuing to accrue
physical presence for purposes of voluntary departure at the conclusion of proceedings.
See Matter of M-F-O-, 

, 416 (BIA 2021).

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because this remedy is contrary to the plain text of 

 and
inconsistent with the Supreme Court’s decision in Niz-Chavez. As that was
the only issue before us in this interlocutory appeal, we will remand the
record to the Immigration Court for further proceedings consistent with this
decision.
   ORDER: The interlocutory appeal is sustained, and the record is
remanded to the Immigration Court for further proceedings.




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