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Cite as 29 I&N Dec. 533 (BIA 2026) 	Interim Decision #4177
Matter of Elmer Omar LOPEZ-ORELLANA, Respondent
Decided March 27, 2026
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An objection to the noncompliant notice to appear is the respondent’s, not the
Immigration Judge’s, objection to raise and is forfeited if not timely raised.
(2) If the Immigration Judge is satisfied that the respondent, who has not appeared at a
scheduled hearing, is removable as charged and received adequate notice of his missed
hearing despite the noncompliant notice to appear, the Immigration Judge should
proceed in absentia rather than terminate proceedings.
FOR THE RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: 	Andrew Stawar, Assistant
Chief Counsel
BEFORE: Board Panel: MONTANTE, OWEN, and GALLOW, Appellate Immigration
Judges.
OWEN, Appellate Immigration Judge:
In a decision dated November 9, 2022, the Immigration Judge terminated
removal proceedings without prejudice based on a noncompliant notice to
appear. The Department of Homeland Security (“DHS”) appeals from that
decision. 	The proceedings will be reinstated, and the record will be
remanded.
The respondent was issued a notice to appear on March 2, 2020, which
did not include the date or time of the initial removal hearing. 	Subsequent
hearing notices scheduled the respondent’s initial hearing for August 10,
2022. The respondent failed to appear for his initial master calendar hearing
on that day, and the matter was reset to November 9, 2022. On November 9,
2022, 	DHS 	filed 	a 	Form 	I-261, 	Additional 	Charges 	of
Inadmissibility/Deportability, adding as a factual allegation the original date,
time, and location of the respondent’s initial master calendar hearing prior to
its rescheduling. On the same day, the respondent again failed to appear for
the master calendar hearing.
The 	Immigration 	Judge 	determined 	that 	the 	notice 	to 	appear 	was
noncompliant under Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022),

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rejected the filing of a Form I-261 as a remedy, and terminated proceedings
without prejudice.1 	DHS appealed that decision, arguing before the Board
that the Immigration Judge should have permitted a remedy to the defective
notice to appear other than termination.
An objection to the noncompliant notice to appear is the respondent’s, not
the Immigration Judge’s, objection to raise and is forfeited if not timely
raised. 	Matter of Fernandes, 28 I&N Dec. at 609. 	Here, the respondent,
having not appeared at any of his master calendar hearings, did not object to
the noncompliant notice to appear.
Subsequent to the Immigration Judge’s decision in this case, the Supreme
Court of the United States held that an in absentia removal order can be
issued despite a noncompliant notice to appear as long as the alien received
notice of the missed hearing through a notice of hearing issued under section
239(a)(2)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1229(a)(2)(A) (2024). 	See Campos-Chaves v. Garland, 602 U.S. 447,
458–59 (2024). The United States Court of Appeals for the Fifth Circuit, in
which 	jurisdiction 	this 	case 	arises, 	has 	recognized 	that 	under
Campos-Chavez, a notice of hearing containing the time and place of the
missed hearing provides the notice required for an in absentia removal order
under section 240(b)(5)(A) of the INA, 8 U.S.C. § 1229a(b)(5)(A) (2024).
Luna v. Garland, 123 F.4th 775, 779 (5th Cir. 2024), cert. denied, 146 S. Ct.
91 (2025). 	Thus, if the Immigration Judge is satisfied that the respondent,
who has not appeared at a scheduled hearing, is removable as charged and
received adequate notice of his missed hearing despite the noncompliant
notice to appear, the Immigration Judge should proceed in absentia rather
than 	terminate 	proceedings. 	See 	INA 	§ 	240(b)(5)(A), 	8 	U.S.C.
§ 1229a(b)(5)(A); cf. Matter of Sanchez-Herbert, 26 I&N Dec. 43, 44–45
(BIA 2012) (holding that an in absentia hearing, rather than termination, is
appropriate when an alien fails to appear because they have departed from
the United States).
Accordingly, termination of the respondent’s removal proceedings was
not 	appropriate. 	We 	will 	therefore 	sustain 	DHS’ 	appeal, 	vacate 	the
Immigration Judge’s decision, and remand the record to the Immigration
Judge for further proceedings. 	If the respondent again fails to appear, the
Immigration 	Judge 	should 	proceed 	in 	absentia 	and 	determine 	if 	the
1 	The Immigration Judge’s decision is embedded in the transcript. 	We remind the
Immigration Judge that an oral decision should be clearly defined from the rest of the
proceedings. See Matter of A-P-, 22 I&N Dec. 468, 477 (BIA 1999).

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respondent is removable as charged and if an in absentia removal order is
warranted under section 240(b)(5)(A) of the INA, 8 U.S.C. § 1229a(b)(5)(A).
ORDER: 	The appeal is sustained, and 	the Immigration Judge’s
November 9, 2022, decision is vacated.
FURTHER ORDER: 	The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing decision and for
the entry of a new decision.