California Immigration

BIA clarifies that objection to noncompliant NTA is generally considered timely if raised prior to closing of pleadings

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Objection to noncompliant NTA. In Matter of Fernandes, the BIA ruled that the time and place must in INA §239(a)(1) is a claim duty rule. This memo provides a brief survey of the ways an individual may appeal. For more detailed information about these topics, please review the materials included with this memo. There are two key requirements to be able to file an appeal to the BIA. The BIA’s position is, at this point, very clear: NTAs that do not contain time, date or place information as required by the statute do not divest the immigration court of jurisdiction. This case clarifies that respondents must raise any objection prior to the close of pleadings but need not show prejudice from the deficient NTA. Missing a hearing could result in a deportation order without any opportunity to plead legitimate defenses.

objection to noncompliant NTA

— Grounds, steps, and practical advice

A Notice to Appear (Form I-862 or equivalent charging document) must meet statutory and regulatory content and service requirements. When an NTA is statutorily noncompliant (for example, fails to include the time and place of the initial hearing or is not properly served), a respondent may object and move to dismiss or otherwise challenge the NTA. Recent Supreme Court and BIA authority has shaped how courts treat defective NTAs and whether a later cure/amendment or proper service changes the legal consequences. 

Common defects that support an objection

  • Missing time/place for the initial hearing (Pereira issues). 
  • Improper or ineffective service under regulatory standards.
  • NTA not filed or other filing defects that frustrate notice and process.

Step-by-step checklist

  1. Collect the original and any amended NTA, proof of service, and EOIR docket notes. 
  2. Identify the specific statutory/regulatory defect and whether DHS attempted to cure. 
  3. Draft and file the motion (Motion to Dismiss / Motion to Quash Service) following EOIR practice. 
  4. Preserve the record for BIA review or further federal litigation if necessary. 

We prepare the motion, declarations, and hearing briefing; argue before the immigration judge; and, if necessary, prepare BIA and court appeals.

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