FERNANDES

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Matter of Alexandre Ricardo Marcelo FERNANDES, Respondent
Decided August 4, 2022
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The time and place requirement in section 239(a)(1) of the Immigration and Nationality
Act, 8 U.S.C. § 1229(a)(1) (2018), is a claim-processing rule, not a jurisdictional
requirement.
(2) An objection to a noncompliant notice to appear will generally be considered timely if
it is raised prior to the closing of pleadings before the Immigration Judge.
(3) A respondent who has made a timely objection to a noncompliant notice to appear is
not generally required to show he or she was prejudiced by missing time or place
information.
(4) An Immigration Judge may allow the Department Homeland Security to remedy a
noncompliant notice to appear without ordering the termination of removal proceedings.
FOR THE RESPONDENT: Jeffrey B. Rubin, Esquire, Boston, Massachusetts
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kaylee J. Klixbull, Associate
Legal Advisor
BEFORE: 	Board Panel: 	MULLANE and MANN, Appellate Immigration Judges.
Dissenting Opinion: GRANT, Appellate Immigration Judge.
MULLANE, Appellate Immigration Judge:
In a decision dated June 17, 2021, an Immigration Judge denied the
respondent’s motion to terminate his removal proceedings and ordered him
removed from the United States. 	The respondent has appealed from this
decision. 1 The record will be remanded.
I. FACTUAL AND PROCEDURAL HISTORY
The facts in this case are not disputed. 	The respondent is a native and
citizen of Portugal who was admitted to the United States as a lawful
1 	The Board requested and received supplemental briefs from the parties and held oral
argument in this case. We grant the Department of Homeland Security’s motion to extend
the page limitation for its supplemental brief. We also received a brief from an amicus
curiae. We acknowledge with appreciation the briefs submitted by the parties and amicus.

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permanent resident. 	On March 1, 2021, the Department of Homeland
Security (“DHS”) personally served a notice to appear on the respondent.
The notice to appear ordered the respondent to appear before an Immigration
Judge at the Boston Immigration Court at a date and time “to be set.” DHS
filed the notice to appear with the Boston Immigration Court on March 10,
2021. On March 12, 2021, the Immigration Court mailed to the respondent
a notice of hearing informing him that his initial hearing was scheduled to
take place on March 18, 2021. 	The respondent was detained throughout
proceedings.
The respondent appeared at the March 18, 2021, hearing and two
subsequent hearings. 	At these hearings, no pleadings to the allegations or
charge in the notice to appear were taken, and the respondent was afforded
continuances to obtain counsel. 	At a fourth hearing on April 15, 2021, the
respondent appeared with counsel. 	The respondent’s counsel requested
a continuance, which was granted until May 6, 2021.
Prior to that next hearing, the respondent filed a written pleading
objecting to the adequacy of the notice to appear. 	At the May 6, 2021,
hearing, the respondent expressly declined to concede proper service of the
notice to appear and requested an opportunity to submit a motion to dismiss
because the notice to appear did not specify the date and time of the initial
hearing. The Immigration Judge did not address the adequacy of the notice
to appear. Instead, he found that the respondent was removable as charged
and afforded him an opportunity to submit a written brief. On May 25, 2021,
the respondent filed a motion, which he titled a “Motion to Quash Service of
Process for the Respondent’s Notice to Appear and Dismiss Removal
Proceedings,” arguing that the notice to appear was defective because it
lacked date and time information. 	DHS filed an opposition to the motion.
On June 17, 2021, the Immigration Judge denied respondent’s motion and
ordered him removed. This appeal followed.
II. ANALYSIS
A. Section 239(a)(1) Is Not a Jurisdictional Rule
Section 239(a)(1) of the Immigration and Nationality Act (“INA”),
8 U.S.C. § 1229(a)(1) (2018), provides that a “written notice” in the form of
a “notice to appear” “shall be given . . . to the alien” in removal proceedings,
specifying, 	among 	other 	things, 	“[t]he 	time 	and 	place 	at 	which 	the
proceedings will be held.” 	In two cases, the Supreme Court of the United
States considered whether a notice to appear that did not specify the time or
place of an initial hearing, as required by section 239(a)(1) of the INA,
8 U.S.C. § 1229(a)(1), triggered the so-called “stop-time” rule under section

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240A(d)(1) of the INA, 8 U.S.C. § 1229b(d)(1) (2018). 2 	In Pereira
v. Sessions, 138 S. Ct. 2105, 2114 (2018), the Court concluded that a “notice
to appear that fails to designate the specific time or place of the noncitizen’s
removal proceedings . . . does not trigger the stop-time rule.” In Niz-Chavez
v. Garland, 141 S. Ct. 1474, 1480 (2021), the Court concluded that to trigger
the “stop-time” rule, a notice to appear must be a single document specifying
the time and place of the hearing, and a noncompliant notice to appear
missing time or place information cannot be cured by a subsequent notice of
hearing specifying this information.
Following Pereira and Niz-Chavez, respondents argued that a notice to
appear that failed to specify the time or place of the initial hearing deprived
an Immigration Court 	of jurisdiction over 	removal proceedings. 	We
addressed this argument in Matter of Arambula-Bravo, 28 I&N Dec. 388
(BIA 2021). In that case, we held that a notice to appear that lacks the time
or place information required by section 239(a)(1) is sufficient to vest an
Immigration Court with subject matter jurisdiction, and neither Pereira nor
Niz-Chavez affects an Immigration Judge’s jurisdiction. 	Id. at 391. 	The
courts of appeals, including the United States Court of Appeals for the First
Circuit, in whose jurisdiction this case arises, have likewise agreed that
neither Pereira nor Niz-Chavez affects an Immigration Court’s jurisdiction.
See United States v. Castillo-Martinez, 16 F.4th 906, 914 n.3 (1st Cir. 2021),
cert. docketed, No. 21-7762 (U.S. May 3, 2022); see also Chavez-Chilel
v. Att’y Gen. U.S., 20 F.4th 138, 142–44 (3d Cir. 2021); Chery v. Garland,
16 F.4th 980, 986–87 (2d Cir. 2021); Ramos Rafael v. Garland, 15 F.4th 797,
800–01 (6th Cir. 2021); Tino v. Garland, 13 F.4th 708, 709 n.2 (8th Cir.
2021) (per curiam); Maniar v. Garland, 998 F.3d 235, 242 & n.2 (5th Cir.
2021).
The 	respondent 	argues 	that, 	under 	Pereira 	and 	Niz-Chavez, 	an
Immigration Court is only vested with jurisdiction upon the service of
a single document containing all of the information required by section
239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1). Thus, he contends the notice to
appear in his case, which failed to specify the time and date of his initial
hearing, did not vest the Immigration Court with jurisdiction over his
removal proceedings.
We adhere to our view in Matter of Arambula-Bravo and the view of the
courts of appeals that have addressed the issue that section 239(a)(1) is not
a jurisdictional provision. 	Our holding in Matter of Arambula-Bravo,
however, did not answer whether section 239(a)(1) is a non-jurisdictional
claim-processing rule or what should be done if there is a timely objection to
2 	Pursuant to the “stop-time” rule, an applicant for cancellation of removal stops accruing
continuous physical presence when, among other things, he or she “is served a notice to
appear under section 239(a).” INA § 240A(d)(1)(A), 8 U.S.C. § 1229b(d)(1)(A).

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a noncompliant notice to appear. See 28 I&N Dec. at 392 n.3 (reserving these
issues). The respondent argues that: (1) the time and place requirement in
section 239(a)(1)(G) of the INA, 8 U.S.C. § 1229(a)(1)(G), is a mandatory
claim-processing rule; (2) his noncompliant notice to appear violated this
claim-processing rule because it failed to specify the date and time of his
initial hearing; (3) since he raised a timely objection to this violation, he is
not required to show prejudice arising from the violation; and (4) the only
remedy for a violation of section 239(a)(1)(G) is a dismissal or termination
of the proceedings upon the respondent’s timely objection. Accordingly, he
argues that the Immigration Judge erred in denying his motion to terminate.
We address these arguments in turn.
B. Section 239(a)(1) Is a Claim-Processing Rule
Some of the courts of appeals have characterized section 239(a)(1) as
a claim-processing rule. See Chavez-Chilel, 20 F.4th at 143; Martinez-Perez
v. Barr, 947 F.3d 1273, 1277–79 (10th Cir. 2020); Perez-Sanchez v. U.S.
Att’y Gen., 935 F.3d 1148, 1153 (11th Cir. 2019); Ortiz-Santiago v. Barr,
924 F.3d 956, 963 (7th Cir. 2019). 	As a general matter, “claim-processing
rules” are those that “seek to promote the orderly progress of litigation by
requiring that the parties take certain procedural steps at specified times.”
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011).
Claim-processing rules do not implicate the jurisdiction of a tribunal. Id.
We conclude that the time and place requirement in section 239(a)(1) is
a claim-processing rule, not a jurisdictional requirement. 	Congress has not
made the Immigration Courts’ jurisdiction dependent upon the content of
a notice to appear. See, e.g., Pierre-Paul v. Barr, 930 F.3d 684, 692 (5th Cir.
2019), abrogated on other grounds by Niz-Chavez, 141 S. Ct. at 1485.
Moreover, like other claim-processing rules, section 239(a)(1) fosters “the
efficient and fair administration of claims.” Matter of Nchifor, 28 I&N Dec.
585, 588 (BIA 2022) (citing Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S.
145, 157 (2013); Henderson, 562 U.S. at 434). 	By giving the respondents
notice of where and when to appear for the hearing, the time and place
requirement in this provision “promote[s] the orderly progress of” the
removal proceedings. Henderson, 562 U.S. at 435; see also Chavez-Chilel,
20 F.4th at 143 (“By providing [time or place] information, the agency can
set a schedule for moving the case forward.”).
Although not jurisdictional, a claim-processing rule may be mandatory in
the sense that the rule must be enforced if it is properly raised. See Fort Bend
Cnty. 	v. 	Davis, 	139 	S. 	Ct. 	1843, 	1849 	(2019); 	see 	also 	Hamer
v. 	Neighborhood 	Hous. 	Servs. 	of 	Chi., 	138 	S. 	Ct. 	13, 	17 	(2017).
A claim-processing rule may be mandatory if the statute defining that rule

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includes the word “shall,” as is the case with section 239(a)(1) of the INA,
8 U.S.C. § 1229(a)(1). See, e.g., United States v. Kwai Fun Wong, 575 U.S.
402, 410–19 (2015) (construing the statutory phrase “shall be forever barred”
as a non-jurisdictional claim-processing rule). 	However, a mandatory
claim-processing rule is different from a jurisdictional requirement in two
important ways.
First, because the rule is not jurisdictional, it does not deprive the
adjudicating body, in this case the Immigration Courts, of authority or power.
Second, the requirements in such rules are subject to waiver and forfeiture,
unless properly and timely raised by the affected party. 	See Nutraceutical
Corp. v. Lambert, 139 S. Ct. 710, 714 (2019); Manrique v. United States,
137 S. Ct. 1266, 1272 (2017). 	Thus, if a respondent does not raise an
objection to a defect in the notice to appear in a timely manner, such an
objection is waived or forfeited. 	See, e.g., Pierre-Paul, 930 F.3d at 693
(concluding that a respondent had forfeited his claim-processing objection to
missing time or place information on a notice to appear based on 8 C.F.R.
§ 1003.14 (2021) because he failed to timely raise that objection); see also
Matter of Nchifor, 28 I&N Dec. at 589 (agreeing with and applying the Fifth
Circuit’s approach in Pierre-Paul to objections to noncompliant notices to
appear raised in the motions context).
It is possible that a respondent may explicitly waive an objection to
a defect in the notice to appear if, for example, the respondent intends to
apply for relief or protection from removal and is looking for a speedy
resolution of those applications. However, even in the absence of an explicit
waiver, the objection is waived or forfeited if not timely raised.
1. The Respondent Timely Objected to the Noncompliant Notice to Appear
The statutory text provides no guidance 	on when an objection to
a noncompliant notice to appear is considered timely. Likewise, the Supreme
Court’s jurisprudence addressing claim-processing rules in different contexts
offers little guidance. However, the Fifth Circuit has provided guidance on
this question.
In Pierre-Paul, the Fifth Circuit noted that a respondent generally waives
his challenge to a noncompliant notice to appear by failing to raise this
objection at the time he concedes removability. 	See 930 F.3d at 693 n.6. 3
3 	We note that the Seventh Circuit considers a different set of factors in determining
whether an objection is timely, including: the time that passed between the receipt of the
notice to appear and the objection; whether a schedule was set for filing objections, and
whether the objection complied with that schedule; how much of the merits was discussed
or determined before the objection; and whether the respondent had access to counsel or
an interpreter. Arreola-Ochoa v. Garland, 34 F.4th 603, 609 (7th Cir. 2022). This case

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Relying on Pierre-Paul, we held in Matter of Nchifor, 28 I&N Dec. at 589,
that a respondent who did not challenge a noncompliant notice to appear
before the Immigration Judge or the Board but rather raised his objection for
the first time in a motion to reopen waited too long and forfeited that
objection. However, we did not decide in Matter of Nchifor at what point an
objection will be considered timely.
We agree with the respondent that an objection to the adequacy of a notice
to appear need not be raised at the time it was served to be considered timely.
Section 239(b)(1) of the INA, 8 U.S.C. § 1229(b)(1), gives respondents “the
opportunity to secure counsel before the first [removal] hearing date” by
requiring that the initial “hearing date shall not be scheduled earlier than
10 days after the service of the notice to appear,” and thus the time and place
requirement in a notice to appear gives respondents the opportunity to secure
counsel for their initial hearing. 	See also Pereira, 138 S. Ct. at 2114–15
(“For § 1229(b)(1) to have any meaning, the ‘notice to appear’ must specify
the time and place that the noncitizen, and his counsel, must appear at the
removal hearing.”). 	At the same time, allowing a respondent to raise an
objection at any point in the proceedings after the notice to appear has been
served would affect DHS’ ability to timely remedy the noncompliant notice
to appear and might force DHS to start proceedings anew, causing an undue
delay and hindering the orderly progress of the proceedings.
The respondent argues that his objection to the noncompliant notice to
appear was timely because he raised it before the closing of pleadings. The
respondent’s actions provide a useful guideline regarding the timeliness of
an objection. 	Generally, requiring respondents to raise an objection before
the 	closing 	of 	pleadings 	would 	not 	force 	respondents 	(especially
unrepresented respondents) to raise an objection at the initial appearance
before an Immigration Judge and would allow them an adequate opportunity
to obtain counsel. 	See generally id. (discussing the importance of the right
to counsel in removal proceedings). 	This guideline would also allow DHS
an opportunity to remedy the noncompliant notice to appear before any
substantive matters are discussed or determined, which would prevent an
undue delay and promote the orderly progress of the proceedings. We also
consider this guideline to be consistent with the decisions of the Federal
courts, see Pierre-Paul, 930 F.3d at 693 n.6 (collecting cases), and the
Federal Rules of Civil Procedure, which require that certain defenses be
asserted in a responsive pleading or motion before pleading, see Fed. R. Civ.
P. 12(b).
Accordingly, we will generally consider an objection to a noncompliant
notice to appear to be timely if it is raised prior to the closing of pleadings
does not arise in the Seventh Circuit, and as noted below, we will not follow Arreola-Ochoa
in this case.

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before the Immigration Judge. 4 Such an objection may be made either orally
at the hearing or in writing. Where pleadings are made in writing, the written
pleading must include any objection to the absence of time or place
information, or the objection will be deemed waived. 	Under this standard,
the respondent in this case made a timely objection to the noncompliant
notice to appear. 5
2. The Respondent Is Not Required to Show Prejudice
In denying the respondent’s motion to terminate the proceedings, the
Immigration Judge noted that the lack of date and time information on the
notice to appear did not prejudice the respondent. The respondent argues that
since he made a timely objection to the violation of section 239(a)(1)(G)(i),
he is not required to show prejudice. We agree.
We start with the statutory text. See, e.g., Esquivel-Quintana v. Sessions,
137 S. Ct. 1562, 1569 (2017). In this case, section 239(a)(1)(G) is silent on
this specific question, as it does not explicitly require a respondent to show
that a violation of the statute prejudiced him or her before DHS may provide
a remedy. 	When Congress intends to require a showing of prejudice after
a party objects to the violation of a claim-processing rule, it generally does
so explicitly. 	See, e.g., Hamer, 138 S. Ct. at 19 (discussing a statutory
claim-processing rule that allows for an extension of the time for appeal if
“no party would be prejudiced” (citation omitted)); cf. Manrique, 137 S. Ct.
at 1274 (noting that “mandatory claim-processing rules, although subject to
forfeiture, are not subject to harmless-error analysis,” which disregards errors
that do not affect substantial rights (citing Fed. R. Crim. P. 52(b) (defining
“harmless error”))).
We are unaware of any Supreme Court decision that requires a showing
of prejudice where a claim-processing rule uses the mandatory term (“shall”)
and where the statutory language does not include a prejudice requirement.
See Davis, 139 S. Ct. at 1849 (noting that a mandatory claim-processing rule
must be enforced if properly raised); cf. Matter of Nchifor, 28 I&N Dec. at
588 (concluding that the Supreme Court’s claim-processing jurisprudence
“does not require a separate examination of prejudice” where an objection is
untimely). Considering that claim-processing rules are intended to promote
the orderly progress of litigation, we are hesitant to read a prejudice
requirement into section 239(a)(1) where none exists. See Romag Fasteners,
4 	This case does not require us to address when a mentally incompetent respondent must
raise an objection to a noncompliant notice to appear.
5 	The Immigration Judge in this case did not make a finding as to whether the
respondent’s objection was timely. However, based on the undisputed facts and the legal
standard we articulate today, we conclude that the respondent’s objection was timely.

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Inc v. Fossil, Inc., 140 S. Ct. 1492, 1495 (2020) (stating that courts should
generally avoid reading requirements into statutes that are not present). Such
a reading of section 239(a)(1) would require a separate determination of the
existence and extent of prejudice in each individual case, and it may be
difficult for respondents to demonstrate any tangible prejudice.
It may be argued that respondents are not prejudiced from the lack of time
or place information on a notice to appear, where they are provided with this
information in a subsequent notice of hearing. Indeed, in Matter of Rosales
Vargas and Rosales Rosales, 27 I&N Dec. 745, 753–54 (BIA 2020), we
concluded that termination of proceedings was not warranted, even though
the respondents in that case had timely objected to their noncompliant notices
to appear, because there was “no apparent prejudice.” 6
Matter of Rosales Vargas and Rosales Rosales is distinguishable because
in that case we considered the claim-processing rule in the regulations, rather
than section 239(a)(1), which we now conclude is a claim-processing rule.
Furthermore, that case involved whether termination was warranted—in
other words, the question of remedy. What remedy should be provided for
a violation of a claim-processing rule is a separate question from whether
prejudice must be shown to establish that a claim-processing violation
occurred 	and 	before 	a 	remedy 	may 	be 	provided. 	Finally, 	although
a respondent who is subsequently informed of the time and place of the
hearing through a notice of hearing may not be prejudiced by a noncompliant
notice to appear missing that information, the Supreme Court emphasized in
Niz-Chavez that a notice of hearing does not excuse DHS’ violation of
section 239(a)(1) when it issues a noncompliant notice to appear. 7
DHS and the dissent posit that the regulations authorize the issuance of
an incomplete notice to appear followed by a notice of hearing supplying the
missing time or place information. 	However, the current case involves the
claim-processing rule at section 239(a)(1), not the regulations. Further, the
regulatory history of the provision on which DHS and the dissent rely,
8 C.F.R. § 1003.18(b) (2021), acknowledges the time and place requirement
in section 239(a)(1). Specifically, this history reflects that the regulation was
intended to “implement[] the language of [section 239(a)(1)] indicating that
the time and place of the hearing must be on the Notice to Appear.”
Inspection and Expedited Removal of Aliens; Detention and Removal of
6 	The Third and the Ninth Circuits agreed with our decision in Matter of Rosales Vargas
and Rosales Rosales that termination is not warranted where the respondent cannot show
prejudice based on a noncompliant notice to appear. 	Chavez-Chilel, 20 F.4th at 144;
Aguilar Fermin v. Barr, 958 F.3d 887, 894–95 (9th Cir. 2020).
7 	Generally, notices of hearing are issued after the service of a notice to appear, and they
are not subject to the 10-day period requirement in section 239(b)(1), which may or may
not affect a respondent.

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Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg.
444, 449 (Jan. 3, 1997) (emphasis added). We therefore read the regulation
as being consistent with the statutory requirement to include the time and
place of the hearing on a notice to appear. See Sec’y of Lab. v. W. Fuels-Utah
Inc., 900 F.2d 318, 320 (D.C. Cir. 1990) (“[A] regulation must be interpreted
so as to harmonize with and further and not to conflict with the objective of
the statute it implements.” (citation omitted)). Further, the dissent’s claims,
like DHS’, are undermined by the explanatory statement in the regulatory
history cited above, which notes two exceptions to the time and place
requirement. 	The first had to do with the time pressure associated with
revising the immigration system between the date section 239(a)(1) was
enacted and the date it became effective: April 1, 1997. See 62 Fed. Reg. at
444, 449. 	The other is a practical one relating to “power outages [and]
computer crashes/downtime” that is not applicable in this case. Id. at 449.
In sum, section 239(a)(1) does not require the respondent to show
prejudice, and we are unwilling to impose such a requirement. 	Thus, we
conclude that where a respondent has made a timely objection to a notice to
appear missing time or place information, the respondent is not generally
required to show he or she was prejudiced by this missing information. 8
3. The Immigration Judge May Allow DHS to Remedy the Noncompliant
Notice to Appear without Terminating Proceedings
Because he made a timely objection to the violation of a mandatory
claim-processing rule, the respondent argues the only appropriate remedy is
the immediate termination of the proceedings. 	Thus, he contends the
Immigration Judge erred in denying his motion to dismiss or terminate the
proceedings. We disagree.
First, as noted, the claim-processing rule at section 239(a)(1) is not
jurisdictional and relates to matters within an Immigration Judge’s authority.
Since it relates to matters within an Immigration Judge’s authority, it follows
that an Immigration Judge may exercise judgment and discretion to enforce
that rule as he or she deems appropriate to promote the rule’s underlying
purpose. 	See 8 C.F.R. § 1003.10(b) (2021) (“[I]mmigration judges shall
8 	The respondent has not shown that the lack of date and time information in the notice
to appear violated his right to due process. 	To establish a due process violation, the
respondent must show that a procedural error led to fundamental unfairness and actual
prejudice. See Toribio-Chavez v. Holder, 611 F.3d 57, 65 (1st Cir. 2010); Lopez-Reyes
v. Gonzales, 496 F.3d 20, 23 (1st Cir. 2007). The respondent was aware of the date and
time of the initial hearing and was able to attend this and other hearings. 	He was also
granted continuances to secure counsel. Thus, he has not shown he was prejudiced by the
lack of date and time on his notice to appear.

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exercise their independent judgment and discretion and may take any action
consistent with their authorities under the [INA] and regulations that is
appropriate and necessary for the disposition of such cases.”). 	While an
Immigration Judge may not overlook or ignore a violation of section
239(a)(1) if the issue is timely raised, it does not necessarily follow that an
Immigration Judge has no discretion in determining how to enforce that rule
or remedy its violation. 	See Union Pac. R.R. Co. v. Bhd. of Locomotive
Eng’rs & Trainmen Gen. Comm. of Adjustment, 558 U.S. 67, 85 n.9 (2009)
(recognizing 	that 	an 	agency 	“may 	prescribe 	and 	enforce 	reasonable
procedural requirements” for claim-processing rules). 	In fact, requiring
immediate 	termination 	for 	a 	violation 	of 	section 	239(a)(1), 	would
“essentially [turn] the time and place requirement for a notice to appear [into]
a jurisdictional requirement.” Matter of Nchifor, 28 I&N Dec. at 588 n.7.
Second, the claim-processing rule embodied in section 239(a)(1) does not
explicitly provide that termination is the sole consequence for violating that
rule. 	Indeed, neither the text of section 239(a)(1), nor any other statute,
mandates that proceedings should be terminated if DHS fails to comply with
the 	requirements 	of 	section 	239(a)(1), 	including 	the 	time 	and 	place
requirement at section 239(a)(1)(G)(i). Nor does this statutory text explicitly
preclude an Immigration Judge from allowing DHS to remedy missing time
or place information. 	See State Farm Fire & Cas. Co. v. United States ex
rel. 	Rigsby, 	137 	S. 	Ct. 	436, 	442 	(2016) 	(discussing 	a 	statutory
claim-processing rule that “says nothing . . . about the remedy for a violation
of that rule,” and concluding that in “the absence of congressional guidance
regarding a remedy, ‘[a]lthough the duty is mandatory, the sanction for
breach is not loss of all later powers to act’” (alteration in original) (quoting
United States v. Montalvo-Murillo, 495 U.S. 711, 718 (1990))).
Third, the Supreme Court’s jurisprudence addressing claim-processing
rules suggests that termination is not the most appropriate remedy for
a noncompliant notice to appear. 	Instead, it suggests that where the
claim-processing violation stems from a defect in a document that can be
corrected, adjudicators may allow the violating party to remedy the defect
without dismissing proceedings.
For example, in Gonzalez v. Thaler, 565 U.S. 134 (2012), the Court
addressed a State prisoner’s defective certificate of appealability (“COA”),
a prerequisite for appeal in habeas corpus proceedings. Federal law requires
a COA to show that the prisoner was denied a constitutional right. The Court
concluded 	that 	this 	law 	is 	a 	mandatory 	claim-processing 	rule, 	not
a jurisdictional requirement, and the State had timely objected to the failure
of the prisoner’s COA to indicate a constitutional issue. 	The Court
nevertheless found that a “defective COA is not equivalent to the lack of any
COA.” Id. at 143; cf. Manrique, 137 S. Ct. at 1274 (stating that a court may

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“overlook defects in a notice of appeal” but “may not overlook the failure to
file a notice of appeal at all”). Accordingly, the Court held that a violation
of the claim-processing rule at issue did not necessarily require dismissal.
Instead, the Court found that “[i]f a party timely raises the COA’s failure to
indicate a constitutional issue, the court of appeals panel must address the
defect by considering an amendment to the COA or remanding to the district
judge for specification of the issues.” Gonzalez, 565 U.S. at 146.
A similar principle applies in the case of a noncompliant notice to appear.
A noncompliant notice to appear is not equivalent to a lack of a notice to
appear altogether. 	While an Immigration Judge cannot simply ignore or
overlook DHS’ failure to include the required time or place information on
a notice to appear if the issue is timely raised, the Immigration Judge also
cannot simply treat the notice to appear as never having been served or filed.
See Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462, 465–66 (A.G. 2018)
(citing Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 169 (BIA 2017)
(stating that once a notice to appear is filed with an Immigration Court, an
Immigration 	Judge 	may 	only 	terminate 	proceedings 	in 	limited
circumstances)); see also Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45
(BIA 2012).
Finally, 	the 	respondent 	argues 	that, 	while 	violations 	of 	other
claim-processing rules may be cured, the violation of section 239(a)(1)(G)(i)
can only be remedied by termination because the notice to appear is
a case-initiating document. In Niz-Chavez, 141 S. Ct. at 1482, the Supreme
Court acknowledged that a notice to appear is a case-initiating document,
comparable to a complaint in a civil case. 	Nevertheless, a defective civil
complaint or criminal information may be amended when necessary, rather
than requiring an outright dismissal or termination of the case. See, e.g., Fed.
R. Civ. P. 15 (allowing for amended and supplemental complaints); Fed. R.
Crim. P. 7(e) (providing that “the court may permit an information to be
amended at any time before the verdict or finding,” if certain conditions are
met). This promotes the orderliness of the process but also gives the parties
a remedy for a noncompliant filing that is not futile or frivolous. In addition,
not allowing a complaint or information to be amended would cause a case
to be dismissed and waste judicial and administrative resources. 	We
therefore reject the respondent’s argument that termination is the only
appropriate remedy for a violation of section 239(a)(1)(G)(i).
Importantly, the Federal courts and the Board have permitted DHS to
remedy defective service of a notice to appear in other contexts without
requiring termination. See B.R. v. Garland, 26 F.4th 827, 840 (9th Cir. 2022)
(holding that Immigration Judges have the authority to allow DHS to cure
improper service of a notice to appear on a minor without requiring
termination); Matter of W-A-F-C-, 26 I&N Dec. 880, 882 (BIA 2016)

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(providing that an Immigration Judge should grant a continuance to allow
DHS to properly serve a notice to appear on a minor); Matter of E-S-I-, 26
I&N Dec. 136, 145 (BIA 2013) (same where indicia of incompetency are
present); cf. Matter of Hernandez, 21 I&N Dec. 224, 228 (BIA 1996)
(allowing an Immigration Judge to take corrective action short of termination
where an order to show cause was not properly served). 	We similarly
conclude that the omission of time or place information in a notice to appear
“can be cured and is not fatal,” and thus the Immigration Judge in this case
may allow DHS to remedy the defect in the notice to appear without ordering
the termination of removal proceedings. 	Aguilar Fermin v. Barr, 958 F.3d
887, 895 (9th Cir. 2020); see also Union Pac. R.R. Co., 558 U.S. at 84 (stating
that when a claim-processing objection is raised, adjudicators may “adjourn
the proceeding pending cure of any lapse”); State Farm Fire & Cas. Co.,
137 S. Ct. at 442 (concluding that a claim-processing violation does not
deprive an adjudicator of “all later powers to act’” (citation omitted)). 9
The dissent posits that, to the extent a claim-processing rule violation
occurred, prejudice must be shown, and no prejudice was shown in this case.
We view things differently. 	In our view, when a claim-processing rule
violation occurs, prejudice need not be shown, but a remedy may be allowed,
and the nature of the violation informs the nature of the remedy.
Based on the above, we will remand this matter to the Immigration Judge
so that DHS may remedy the noncompliant notice to appear. 	The precise
contours of permissible remedies are not before us at this time. 10 DHS may
decide it is best to request dismissal without prejudice and file a new notice
to appear. 	See 8 C.F.R. §§ 239.2(a), (c), 1239.2(a), (c) (2021). 	No matter
the remedy, however, any actions and decisions that took place following the
respondent’s timely objection regarding the deficiency of the notice to appear
should be carefully considered anew. Accordingly, the appeal is sustained,
the Immigration Judge’s decision is vacated, and the record is remanded for
further proceedings.
9 	The Seventh Circuit has held that a respondent is entitled to dismissal or termination of
the proceedings where the notice to appear was noncompliant and the respondent made
a timely objection. 	See Arreola-Ochoa, 34 F.4th at 608 (“[T]he proceeding must be
dismissed 	for 	failure 	to 	comply 	with 	a 	mandatory 	claims-processing 	rule.”);
Ortiz-Santiago, 924 F.3d at 965. While we are bound by the Seventh Circuit’s decisions
in cases arising within that circuit, we do not apply this rule in cases arising outside the
Seventh Circuit. See Matter of U. Singh, 25 I&N Dec. 670, 672 (BIA 2012) (“We apply
the law of the circuit in cases arising in that jurisdiction, but we are not bound by a decision
of a court of appeals in a different circuit.”).
10 The logistics of issuing a new and compliant notice to appear may depend in part on the
DHS’ internal procedures and guidelines, not all of which are within our authority to
address.

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ORDER: 	The respondent’s appeal is sustained, and the Immigration
Judge’s decision is vacated.
FURTHER ORDER: 	The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing order and for the
entry of a new decision.
DISSENTING OPINION: Edward R. Grant, Appellate Immigration Judge
I respectfully dissent. 	The question presented to us is straightforward:
whether the failure of the Department of Homeland (“DHS”) to include in
the notice to appear time-and-date information regarding this detained
criminal respondent’s first Immigration Court hearing, when raised in
a timely objection, requires finding, without any showing of prejudice, the
proceedings must be halted (and likely terminated) pending service of
a complete notice to appear. This, as the majority notes, is a question we left
open in Matter of Arambula-Bravo, 28 I&N Dec. 388, 392 n.3 (BIA 2021).
The majority unwisely and incorrectly answers it in the affirmative.
The majority’s defense of this position relies on a defective understanding
of claim-processing rules in general, and of the claim-processing rules
specifically 	applicable 	to 	this 	case. 	The 	majority 	effectively 	and
impermissibly sets aside the governing regulations set forth in 8 C.F.R.
§§ 1003.14, 1003.15, and 1003.18 (2021), which specifically permit the
filing of a notice to appear lacking the specific time-and-date information
called for in section 239(a)(1) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1229(a)(1) (2018), provided the Immigration Court
sends 	a 	subsequent 	notice 	of 	hearing 	providing 	that 	information 	to
a respondent. 	8 C.F.R. § 1003.18(b). 	Notably, the majority rejects the
respondent’s claim that the holding in Niz-Chavez v. Garland, 141 S. Ct.
1474 (2021), compels a finding that the Immigration lacked jurisdiction over
his case—but then pivots to hold that Niz-Chavez effectively invalidates the
regulatory 	procedure 	followed 	for 	decades 	by 	Immigration 	Courts 	in
following up incomplete notices to appear with a notice of hearing. 	See
Matter of Fernandes, 28 I&N Dec. 605, 612–13 (BIA 2022).
The majority’s conclusion contradicts the Board’s recent holding in
Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745 (BIA
2020). 	Accord Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020)
(holding that a failure to include the identity and address of the Immigration
Court—information also required by section 239(a)(1)(G)—is remedied by
the issuance of a subsequent notice of hearing in accordance with 8 C.F.R.
§ 1003.18(b)). 	In so doing, the majority adopts the “claim-processing”
approach of a single Federal circuit court of appeals, setting aside explicit

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rulings to the contrary from two other circuits, as well as the implicit rulings
of several other circuits. 	Compare Ortiz-Santiago v. Barr, 924 F.3d 956,
964–65 (7th Cir. 2019) (holding section 239(a)(1)(G) is a mandatory
claim-processing rule requiring quashing of an incomplete notice to appear),
with Chavez-Chilel v. Att’y Gen. U.S., 20 F.4th 138, 143–44 & n.5 (3d Cir.
2021) (collecting cases and holding that the omission of the date and time
from a notice to appear is “harmless error” and that given the purpose of this
specific claim-processing rule, “equitable considerations inform whether
technical noncompliance requires particular relief”), and United States
v. Cortez, 930 F.3d 350, 362–63 (4th Cir. 2019), as amended (concluding
based on the specific provisions of 8 C.F.R. §§ 1003.14(a), 1003.15(c), and
1003.18(b), that the omission of the time and date from a notice to appear did
not violate a claim-processing rule). 1
By rejecting these precedents, the majority leaves the parties and the
Immigration Judge at sea to determine what an appropriate remedy would be
in this case. 	The majority rejects the respondent’s contention that the only
remedy is termination of proceedings without prejudice to DHS’ ability to
serve and file a fully-compliant notice to appear. However, it is difficult to
see what other “remedy” can be found—the respondent will insist on that
course of action, and he has a valid point: neither an Immigration Judge nor
DHS has authority to “pencil in” a hearing date after the fact on an
already-served notice to appear. The majority suggests that DHS may choose
to withdraw the current notice to appear and restart proceedings—and it
offers no other alternative, having taken the issuance of a notice of hearing
off the table. This would constitute a profound waste of judicial resources in
a case where the respondent is clearly removable, has presented no valid
claim for relief, and has suffered no prejudice. Moreover, this precedent will
create confusion in Immigration Courts across the country—the majority
acknowledges the contrary rulings of the United States Courts of Appeals for
1 	As the United States Court of Appeals for the Fourth Circuit noted in Cortez, the
majority of circuits “have agreed that the required contents of the notice to appear that
commences removal proceedings under 8 C.F.R. § 1003.14(a) are those set out by
regulation, not the INA.” 930 F.3d at 363 (citing Ali v. Barr, 924 F.3d 983, 985–86 (8th
Cir. 2019); Banegas Gomez v. Barr, 922 F.3d 101, 111–12 (2d Cir, 2019); Santos-Santos
v. Barr, 917 F.3d 486, 489–91 (6th Cir. 2019)). 	These courts, along with the Seventh
Circuit, agreed that these regulatory provisions constitute a claim-processing rule, and that
the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), could not be
read to divest Immigration Courts of jurisdiction when an incomplete notice to appear has
been docketed. However, the Seventh Circuit continues to stand alone in concluding that
Pereira requires treating section 239(a)(1) as a mandatory claim-processing rule that
effectively overrides the regulations’ allowance for an incomplete notice to appear to be
docketed, and for time-and-date information to be provided in a subsequent notice of
hearing. Arreola-Ochoa v. Garland, 34 F.4th 603, 608 (7th Cir. 2022).

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the Third, Fourth, and Ninth Circuits, but does not clearly state whether its
decision, or the law of those circuits, should apply to this and analogous
“claim-processing” objections raised in those jurisdictions.
As the following will explain, there was no violation of a mandatory
claim-processing rule under the INA and its implementing regulations in this
case. 	The specific claim-processing rule at issue in this case is properly
viewed as an instantiation of fundamental due process—the right to know
when and where one’s hearing shall take place. 	In every other context
involving a claim of violation of due process, the Board, with the approbation
of the Federal courts, requires a showing of prejudice. 	See Franco-Ardon
v. Barr, 922 F.3d 23, 25 (1st Cir. 2019) (holding that a noncitizen claiming
ineffective assistance of counsel must show prejudice); Hernandez v. Reno,
238 F.3d 50, 57 (1st Cir. 2001) (declining to incorporate the presumed
prejudice standard from criminal law into civil immigration proceedings).
By setting aside this requirement, the majority opens up a potential hornets’
nest of due process and claim-processing litigation in circumstances where
parties have suffered no prejudice. 2 	As the Immigration Judge here
concluded, to the extent a claim-processing rule was violated, that violation
was remedied—at no prejudice to the respondent—by issuance of the
subsequent notices of hearing. There is thus no reason to terminate or remand
these proceedings, and the decision below should be affirmed. 3
I. DISCUSSION
As I explain below, 	section 239(a)(1) 	sets forth a 	non-mandatory
claim-processing rule that allows for flexible enforcement. 	See Young
v. SEC, 956 F.3d 650, 654–55 (D.C. Cir. 2020) (recognizing that, in addition
to 	“mandatory 	claims-processing 	deadlines,” 	there 	are 	“nonmandatory
claims-processing deadlines, which are . . . flexible when raised by an
opposing party” (emphasis added)). 	The way to enforce section 239(a)(1)
and address a notice to appear that does not comply with the statute is through
its implementing regulations. 	A remedy was provided in this case, in the
form of a notice of hearing under 8 C.F.R. § 1003.18(b), informing the
2 	Ironically, the majority rejects the respondent’s due process claim on precisely these
grounds—that he has failed to establish the required prejudice. See Matter of Fernandes,
28 I&N Dec. at 613 n.8. No adequate explanation is provided for why a “no prejudice”
standard should be applied to the alleged violation of a statutory claim-processing rule—
particularly when the rule at issue exists precisely to safeguard the very due process rights
the respondent claims have been infringed.
3 	I concur in the majority’s rejection of the respondent’s claim that the Immigration Judge
lacked jurisdiction over these proceedings, and its rejection of the respondent’s generalized
due process claim. I would also treat the respondent’s claim-processing objection as timely
raised.

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respondent of the time and place of his hearing, and he appeared for this
hearing—and all other hearings—as scheduled. 	Thus, no claim-processing
violation occurred in this case and, even if one did, the respondent was not
prejudiced.
A. Mandatory and Non-Mandatory Claim-Processing Rules
In some cases, claim-processing rules “may be” mandatory. 	Fort Bend
Cty. 	v. 	Davis, 	139 	S. 	Ct. 	1843, 	1849 	(2019) 	(stating 	that 	that
a “claim-processing rule” requiring parties to take certain procedural steps
in, or prior to, litigation, “may be ‘mandatory’ in the sense that a court must
enforce the rule” if timely raised (emphases added) (quoting Eberhart
v. United States, 546 U.S. 12, 19 (2005) (per curiam))). 	However, the
jurisprudence of the Supreme Court of the United States—on which the
majority 	relies—also 	permits 	for 	claim-processing 	rules 	that 	are 	not
mandatory, meaning they are amenable to more flexible enforcement. 	See
Dolan v. United States, 560 U.S. 605 (2010).
In Dolan, the rule at issue provided that a sentencing court “shall set
a date for the final determination of the victim’s losses, not to exceed 90 days
after sentencing.” 	Id. at 608 (emphasis added) (citation omitted). 	The
sentencing court in that case missed the 90-day deadline, even though all the
information needed to determine the victim’s losses was available before the
deadline, and no excuse was offered for missing the deadline. Id. at 609–10.
The defendant argued that, since the 90-day limitation was not met, the law
no longer authorized the sentencing court to order restitution. 	The Court
disagreed.
The 	Supreme 	Court 	noted 	that 	the 	rule 	at 	issue 	could 	be:
(1) a jurisdictional condition; (2) a claim-processing rule; or (3) a rule that
seeks to speed an action by creating a time-related directive but that does not
affect a judge’s or other public official’s power to take the relevant action.
The Court concluded that the rule at issue fell within the third category. 	It
was 	neither 	jurisdictional 	nor 	a 	claim-processing 	rule, 	and 	thus 	the
sentencing court could order restitution even though the defendant had timely
raised the court’s failure to meet the 90-day deadline.
The Court recognized the statute used the word “shall,” a mandatory term,
but the use of this word was not dispositive of whether the rule was either
a jurisdictional or claim-processing rule, or fell within the third category of
rules. Id. at 611–12 (observing that “a statute’s use of [‘shall’] alone has not
always led this Court to bar judges (or other officials) from taking the action
to which a missed statutory deadline refers,” especially where the statute
“does not specify a consequence for noncompliance” (citation omitted)); see
also id. at 614–15 (noting that in other cases, the Court had interpreted

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statutes using “shall” in a similar manner). In discerning the consequences
for a violation of the deadline, the Court also examined the “substantive
purpose” of the statute—namely, the importance of imposing restitution
upon those convicted of certain Federal crimes and ensuring that victims of
crime receive full restitution. 	Id. at 612. 	The Court then found that, even
where a sentencing court’s “delay causes the defendant prejudice—perhaps
by depriving him of evidence to rebut the claimed restitution amount”—the
proper remedy is for the defendant “to ask the court to take that fact into
account” when it makes a final determination regarding his victim’s losses.
Id. at 617.
The third category of rules the Court discussed in Dolan should be viewed
as “claim-processing rules” in a general sense because, consistent with the
Court’s later clarification in Henderson ex rel. Henderson v. Shinseki, 562
U.S. 428, 435 (2011), they “seek to promote the orderly progress of litigation
by requiring . . . certain procedural steps [be taken] at specified times.”
However, this category of claim-processing rules are not mandatory because
they are subject to exceptions and need not be enforced even if properly
raised. 4 	Indeed, the Court in Dolan allowed the sentencing court to order
restitution, even though the defendant had properly raised the court’s failure
to meet the statutory deadline. Moreover, in determining how the deadline
should be enforced, and the sentencing court’s failure remedied, the Court
took account of circumstances like prejudice (or the lack thereof) and the
reason for the failure—considerations that are irrelevant in the context of
“mandatory” claim-processing rules. 	See Dolan, 560 U.S. at 617; see also
Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 714 (2019).
That non-mandatory claim-processing rules exist should not surprise us.
Indeed, the INA contains several rules, which use mandatory terms like
“shall” and “must” that do not implicate our jurisdiction, are amendable to
exceptions, and do not require strict enforcement once a violation is raised.
For 	example, 	section 	240(c)(7)(C)(i) 	of 	the 	INA, 	8 	U.S.C.
§ 	1229a(c)(7)(C)(i) 	(2018), 	provides 	that, 	subject 	to 	certain 	statutory
exceptions, “the motion to reopen shall be filed within 90 days of entry of
a final administrative order of removal.” 	(Emphasis added.) 	Similarly,
4 	Other Supreme Court decisions support the existence of a distinct category of
claim-processing rules that, despite use of the word “shall,” are not mandatory and subject
to exceptions. 	See United States v. Kwai Fun Wong, 575 U.S. 402, 410–12 (2015)
(concluding that a statutory claim-processing rule—a deadline provision stating that a tort
claim “shall be forever barred” if it is untimely filed—was subject to equitable tolling);
Henderson, 562 U.S. at 435, 441–42 (holding that a statutory appeals deadline was
a “quintessential claim-processing rule[]” that, despite its use of “shall,” could be subject
to exceptions, and remanding for the lower court to consider such exceptions);
cf. Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 714 (2019) (concluding that
a “mandatory” claim-processing rule is “not susceptible to [an] equitable approach”).

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section 240(c)(6)(B) of the INA, 8 U.S.C. § 1229a(c)(6)(B), states that,
subject to exceptions, a motion to reconsider “must be filed within 30 days
of the date of entry of a final administrative order of removal.” 	(Emphasis
added.) 	Nevertheless, 	it 	is 	generally 	accepted—even 	in 	the 	Seventh
Circuit—that these statutory deadlines are claim-processing rules that need
not be enforced if timely raised, because they are subject to equitable tolling.
See, e.g., Ramos-Braga v. Sessions, 900 F.3d 871, 876 (7th Cir. 2018)
(per curiam). 5
In a single sentence, the majority acknowledges the possibility that
section 239(a)(1) “may be mandatory” because it includes the word “shall,”
which, as noted above, is not dispositive. Matter of Fernandes, 28 I&N Dec.
at 608–09 (emphasis added). 	However, the majority, without further
explanation or discussion, immediately jumps to treating section 239(a)(1)
as a “mandatory” claim-processing rule that must be strictly enforced if
timely raised. Id. I cannot join the majority in making this leap. The better
reading of section 239(a)(1) treats this provision as a claim-processing rule
that is not mandatory and allows for flexible enforcement. Circuit case law
clearly endorses this reading. See Chavez-Chilel, 20 F.4th at 143 (concluding
that “[s]ection 1229 is a claims-processing rule” but stating that where “there
is a violation of [this] claims processing rule . . . the adjudicator has the
authority to determine how to address the noncompliance”). 	Section
239(a)(1)’s implementing regulations—which we are bound to follow—
provide the means for enforcing the statute and addressing a noncompliant
notice to appear.
B. Section 239(a)(1) and the Regulations Establish a Complementary
Claim-Processing Rule
The substantive purpose of the time and place requirement at section
239(a)(1)(G)(i) is to “ensure that noncitizens appear for proceedings by
requiring that the noncitizen be informed of the time and place of the
hearing.” 	Id.; see also Dolan, 560 U.S. at 612 (looking to a rule’s
“substantive purpose” in assessing how it should be enforced). 	“By
5 	Despite the mandatory language at 8 C.F.R. § 1003.38(b) (2021) (stating that a notice
to appeal “shall be filed” with the Board within 30 days of the Immigration Judge’s
decision), the First, Second, Fifth, and Ninth Circuits have all concluded that, the appeal
deadline is a claim-processing rule amenable to equitable tolling. 	See Boch-Saban
v. Garland, 30 F.4th 411, 413 (5th Cir. 2022) (per curiam); James v. Garland, 16 F.4th
320, 322–26 (1st Cir. 2021); Attipoe v. Barr, 945 F.3d 76, 79–80 (2d Cir. 2019);
Irigoyen-Briones v. Holder, 644 F.3d 943, 946–48 (9th Cir. 2011). 	But see Matter of
Liadov, 23 I&N Dec. 990, 993 (BIA 2006) (“Neither the statute nor the regulations grant
us the authority to extend the time for filing appeals.”).

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providing that information, the agency can set a schedule for moving the case
forward.” Chavez-Chilel, 20 F.4th at 143. Section 239(a)(1)’s implementing
regulations complement the statute’s substantive purpose.
The regulations provide that removal proceedings commence before an
Immigration Judge “when a charging document is filed with the Immigration
Court” by DHS. 	8 C.F.R. § 1003.14(a). 	They additionally state that while
time and place information should be included in a charging document under
8 C.F.R. § 1003.14(a) “where practicable,” 8 C.F.R. § 1003.18(b), in all other
cases 	the 	Immigration 	Court 	is 	responsible 	for 	ensuring 	notice 	to
a respondent of the hearing’s “time, place, and date,” id.
Most circuits agree that neither section 239(a)(1), nor its implementing
regulations, requires a notice to appear to specify the time and place of
proceedings before that notice to appear may be filed with the Immigration
Court and commence removal proceedings under 8 C.F.R. § 1003.14(a). See
Cortez, 930 F.3d at 363 (agreeing “with the substantial majority of courts to
address this issue” and holding that it “is the regulatory definition of ‘notice
to appear,’ and not § 1229(a)’s definition, that controls in determining when
a case is properly docketed with the immigration court under 8 C.F.R.
§ 1003.14(a)”); see also United States v. Vasquez Flores, No. 19-4190, 2021
WL 3615366, at *2 n.3 (4th Cir. Aug. 16, 2021) (per curiam) (“Niz-Chavez’s
reasoning does not undermine the reasoning in Cortez . . . .”). 6 Once the case
is 	filed 	with 	the 	Immigration 	Court 	and 	proceedings 	commence, 	an
Immigration Judge is obliged to adjudicate a respondent’s case and can only
terminate 	proceedings 	in 	limited 	circumstances. 	See, 	e.g., 	Matter
of S-O-G- & F-D-B-, 27 I&N Dec. 462, 465–66 (A.G. 2018). 	A notice to
appear’s failure to specify time or place information is not among these
circumstances 	because, 	in 	such 	a 	case, 	Ҥ 	1003.18(b) 	supplies 	the
appropriate remedy: 	providing the [respondent] and the government with
the complete notice at a later time” in a notice of hearing. Aguilar Fermin,
958 F.3d at 895 (emphasis added). 7
The majority’s conclusion is plainly inconsistent with the regulatory
scheme and the holdings of most circuits. Although the majority claims it is
reading the regulations in harmony with section 239(a)(1), its effect is to read
6 	Until today, the only court that broke with this overwhelming consensus was the
Seventh Circuit. See Cortez, 930 F.3d at 363 (citing Ortiz-Santiago, 924 F.3d at 959–63).
Now, the Board does so too.
7 	The regulations provide that, an Immigration Judge may terminate proceedings so that
certain respondents may naturalize, but they state that, “in every other case, the removal
hearing shall be completed as promptly as possible.” 	8 C.F.R. § 1239.2(f) (2021)
(emphasis added). The INA additionally states, “At the conclusion of the proceeding the
immigration judge shall decide whether an alien is removable from the United States.”
INA § 240(c)(1)(A), 8 U.S.C. § 1229a(c)(1)(A). Neither the INA nor the regulations permit
an Immigration Judge to “quash” a notice to appear.

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them out of existence, limiting their application to the period immediately
following the enactment of section 239(a)(1) or to circumstances where it is
impossible to include a hearing date on the notice to appear. 8 Absent such
circumstances, the majority apparently concludes (but without saying so) that
the regulations are inconsistent with the statute and ultra vires. 	Absent the
promulgation of new regulations or a decision from a controlling Federal
court, we lack the authority to declare our own regulations ultra vires based
on a contrary interpretation of the INA. See Padilla-Padilla v. Gonzales, 463
F.3d 	972, 	980 	(9th 	Cir. 	2006) 	(“The 	[Board] 	must 	follow 	its 	own
regulations.”). To avoid these issues, the binding regulations should be read
as 	complementing—and 	enforcing—the 	substantive 	purpose 	of 	section
239(a)(1): ensuring a respondent’s appearance for proceedings by informing
him or her of the time and place of the proceeding. 	As recognized by the
Third, Fourth, and Ninth Circuits, the regulations provide a remedy for
addressing a noncompliant notice to appear in the form of a compliant notice
of hearing.
Under this reading, no claim-processing violation occurred in this case.
Although the notice to appear here failed to specify the date and time of the
respondent’s initial hearing, he was informed of this information through the
service of a notice of hearing consistent with 8 C.F.R. § 1003.18(b), and he
appeared for this hearing.
C. The Respondent Must Show Prejudice and Has Failed to Do So
Besides 	ignoring 	the 	effect 	of 	binding 	regulations, 	the 	majority’s
conclusion that the respondent need not show prejudice from violation of the
claim-processing rule at section 239(a)(1) also effectively reverses very
recent Board precedent that those who claim violation of a claim-processing
rule must show prejudice.
8 	Citing the regulatory history of 8 C.F.R. § 1003.18(b), the majority suggests that the
Department of Justice only intended Immigration Judges to issue notices of hearing
supplying the time and place of the initial hearing in two circumstances—where there was
time pressure to revise the immigration system prior to the 1997 effective date of section
239(a)(1), and where there was a power outage or computer crash. 	See Matter of
Fernandes, 28 I&N Dec. at 612–13. The majority’s interpretation of this regulatory history
departs from our previous interpretation of that history in Matter of Laparra, 28 I&N Dec.
425, 435 (BIA 2022) (stating that the regulatory history of 8 C.F.R. § 1003.18(b) “supports
our conclusion that . . . either the DHS or the Immigration Court may schedule the initial
removal hearing and notify the respondent of the time and place of that hearing . . . through
either a notice to appear . . . or a notice of hearing” (emphases added)). 	Furthermore,
during the past quarter-century, thousands of notices of hearing have been issued in cases
where a notice to appear was incomplete; virtually none of these cases involved a power
failure or similar exigency.

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In denying the motion to terminate the proceedings, the Immigration
Judge found that the respondent suffered no harm from the notice to appear’s
omission of the date-and-time information. 	This decision conforms to our
holding in Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745
(BIA 2020). Accord Aguilar Fermin, 958 F.3d at 895. There we concluded
that because the respondents had not shown prejudice, termination of the
proceedings was not warranted, even though the respondents in that case
made a timely objection to a notice to appear that did not conform to the
statutory and regulatory requirement that the “place” where proceedings will
be held be listed on the notice to appear. 	Matter of Rosales Vargas and
Rosales Rosales, 27 I&N Dec. at 753–54. Prejudice was absent because the
respondents were subsequently informed of the location, time, and date of
their hearings—as the respondent in this case was informed, shortly after
issuance of the notice to appear, of the date and time of his initial hearing.
There, as here, the Immigration Judge 	had no authority to terminate
proceedings. See id. at 754 (citing Matter of Sanchez-Herbert, 26 I&N Dec.
43, 45 (BIA 2012)).
The majority makes no pretense that Matter of Rosales Vargas and
Rosales Rosales can survive its holding in this case. 	In fact, how could it?
The requirement to include the “place” of the Immigration Court hearing is
stated in the very same statutory clause—section 239(a)(1)(G)(i)—as the
requirement to include the “time” of the hearing. 	The majority instead
attempts to distinguish Matter of Rosales Vargas and Rosales Rosales on two
grounds: 	first, that the respondents’ claim in that case was focused on the
regulations, not the requirements of section 239(a)(1); and second, that the
Board’s prior holding may be inconsistent with Niz-Chavez.
Neither ground is persuasive. 	First, in assessing a requirement of
prejudice, it makes no difference whether a claim-processing rule arises
under regulations or a statute. 	Even if the notice to appear here did not
comply with section 239(a)(1), as opposed to the regulations, it does not
follow that prejudice is irrelevant. 	In fact, the Third Circuit found that
prejudice was not only relevant, but dispositive in such a circumstance. See
Chavez-Chilel, 20 F.4th at 144. Favorably citing Matter of Rosales Vargas
and Rosales Rosales, the Third Circuit stated in Chavez-Chilel that “even if
[a notice to appear’s] omission of a date and place did not comply with the
statute,” that omission did not require remand because “the omission was
harmless.” 	Id. (emphases added). 	The court noted that even though the
notice to appear was defective under the statute, “the subsequent [notice of
hearing] provided the date and time of the hearing.” Id. Thus, the “lack of
a date and time for a hearing on the [notice to appear] did not impede [the
noncitizen’s] 	opportunity 	to 	contest 	the 	charge 	against 	her, 	present
evidence,” or apply for relief. 	Id. 	“Accordingly, DHS’s failure to include

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the date and time for her hearing on the [notice to appear] itself was harmless
error, and thus a remand to direct the termination of the proceeding, or to
re-initiate it, is unwarranted.” 	Id. (emphases added). 	The majority makes
no effort to engage with the Third Circuit’s reasoning or explain why it is
inapplicable to this case. 9
Second, the suggestion that Matter of Rosales Vargas and Rosales
Rosales cannot survive Niz-Chavez demonstrates the underlying incoherence
of the majority’s position. At one point, it reaffirms that Niz-Chavez has no
bearing on an Immigration Court’s jurisdiction. But on this point, it pivots
to state (without making a clear holding) that Niz-Chavez invalidates not only
Matter of Rosales Vargas and Rosales Rosales, but the entire regulatory
scheme underlying that decision—along with the decisions of the Third and
Ninth Circuits that expressly endorsed it. 	As the majority holds in its
treatment of the jurisdictional question, Niz-Chavez’s holding was limited to
whether a notice of hearing could cure a defective notice to appear and trigger
the “stop-time” rule for cancellation of removal. 	Matter of Fernandes,
28 	I&N 	Dec. 	at 	606–07. 	Moreover, 	as 	we 	recently 	acknowledged,
Niz-Chavez 	did 	not 	address 	whether 	section 	239(a)(1) 	was
a claim-processing rule or whether a respondent must show prejudice after
raising an objection to a defective notice to appear. 	See Matter of Nchifor,
28 I&N Dec. 585, 589 (BIA 2022) (“Niz-Chavez did not reference the
Supreme Court’s jurisprudence relating to claim-processing rules, nor did it
address [how] a respondent may raise a valid objection to missing time or
place information on a notice to appear . . . .”). 	Our holding in Matter of
Rosales Vargas and Rosales Rosales thus survives Niz-Chavez and controls
the 	outcome 	of 	this 	case, 	requiring 	the 	respondent 	to 	show 	that 	he
experienced “apparent prejudice” from the defective notice to appear.
27 I&N Dec. 753–54.
The requirement that prejudice be shown is important for several reasons.
First, as previously discussed, the claim-processing rule at issue is not one
that is subject to inflexible enforcement. The majority plainly admits this. It
never 	holds 	outright 	that 	section 	239(a)(1) 	constitutes 	a 	“mandatory”
claim-processing 	rule, 	and 	in 	rejecting 	the 	respondent’s 	claim 	that
proceedings must be terminated, it clearly comes down on the side of
“flexible enforcement.” But in any scheme of “flexible enforcement,” some
9 	The majority’s rationale for imposing the “no prejudice” rule reduces to this: 	the
absence of a prejudice requirement in the text of section 239(a)(1). 	Matter of Rosales
Rosales is sufficient to refute this rationale. There, the regulation imposing a requirement
to state the “place” of the hearing also did not include a requirement that a noncitizen show
prejudice if the notice to appear omitted this information, yet the Board held that prejudice
must be shown.

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showing of harm beyond the mere fact of a violation is relevant, if not
required. See Chavez-Chilel, 20 F.4th at 144.
Second, the rules at issue—both statutory and regulatory—are designed
to promote the orderly progress of litigation. 	The regulations specifically
allow for the precise circumstance that occurred here—a notice to appear
without time-and-date information that may be supplemented by one or more
subsequent notices of hearing. 	The regulations represent the Attorney
General’s judgment that the orderly conduct of litigation in the extremely
high-volume context of Immigration Courts requires this level of flexibility.
Accordingly, it is appropriate that a party (either a noncitizen or DHS)
claiming a violation of one of these claim-processing rules demonstrate
prejudice 	before 	a 	sanction 	so 	disruptive 	to 	the 	orderly 	progress 	of
proceedings as termination is applied.
Third, 	the 	requirements 	in 	section 	239(a)(1) 	and 	the 	regulations
instantiate 	the 	most 	fundamental 	requirement 	of 	due 	process—that
a noncitizen placed in removal proceedings be informed, inter alia, of the
nature 	of 	the 	charges, 	the 	applicable 	grounds 	of 	inadmissibility 	or
deportability, and the time and place where the proceedings will take place.
In this sense, they serve a purpose more important than merely to “promote
the orderly progress of litigation.” 	Henderson, 562 U.S. at 435. 	If viewed
in this light, it should be easy to see why prejudice needs to be shown—
because this is the exact standard we require when a respondent claims
a violation of due process. 	The majority imposes this requirement in
rejecting the respondent’s claim that his due process rights were violated.
See Matter of Fernandes, 28 I&N Dec. at 613 n.8 (citing Toribio-Chavez
v. Holder, 611 F.3d 57, 65 (1st Cir. 2010); Lopez-Reyes v. Gonzales, 496
F.3d 20, 23 (1st Cir. 2007)); see also Santos-Alvarado v. Barr, 967 F.3d 428,
439 (5th Cir. 2020); Tiscareno-Garcia v. Holder, 780 F.3d 205, 211 (4th Cir.
2015). Rather than follow the logical path and apply the same requirement
to an alleged violation of this claim-processing rule, the majority dispenses
entirely with the need to show prejudice.
In the respondent’s case, the initial hearing was held on March 18, 2021,
more than 6 weeks after the notice to appear was served on him on
January 27, 2021. 10 Furthermore, the respondent was granted a number of
10 The respondent’s initial hearing was scheduled for March 18, 2021, which was 6 days
after the notice of hearing was sent to him. However, as the respondent was in detention,
it was unlikely that he would have been unaware of the hearing date and time or that he
may have failed to appear at the hearing. In the case of detained respondents, the statute
required that any removal proceeding should begin “as expeditiously as possible” after the
conviction. INA § 239(d)(1), 8 U.S.C. § 1229(d)(1). Furthermore, the respondent was
immediately granted a continuance in order to obtain counsel, after being fully advised of
his procedural and substantive rights by the Immigration Judge.

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continuances until he appeared with counsel on April 15, 2021. 	The
respondent argues that the lack of a date and time of hearing in the notice to
appear was not a harmless error in his case, because the Immigration Judge
denied his motion to terminate and ordered him removed. 	However,
a prejudice inquiry in this context focuses specifically on prejudice suffered
by the lack of place, date, and time of the initial hearing in the notice to
appear as required in section 239(a)(1)(G)(i), rather than any prejudice
derived from being placed in the removal proceedings generally. 	See
Hernandez-Alvarez v. Barr, 982 F.3d 1088, 1096 (7th Cir. 2020).
Thus, while there conceivably may be cases where a respondent suffers
prejudice from the lack of place, date, and time information in the notice to
appear, such is not the case here. The respondent attended all of his hearings,
was given multiple continuances, and was well represented by counsel. See
Chen v. Barr, 960 F.3d 448, 451 (7th Cir. 2020) (determining that respondent
could not show prejudice because she did not “contend she lacked actual
knowledge of the time and place for the hearing” and she appeared with
counsel). 	Because the respondent did not suffer prejudice from the lack of
date and time of the initial hearing in the notice to appear, the Immigration
Judge properly denied his motion to terminate.
II. CONCLUSION
Based on the foregoing, I would conclude that (1) section 239(a)(1) is
a non-mandatory claim-processing rule that can be flexibly enforced through
its implementing regulations; (2) under section 239(a)(1) and the regulations,
no 	claim-processing 	violation 	occurred 	in 	this 	case; 	and 	(3) 	even 	if
a violation occurred, the respondent was required to, but did not, establish
any prejudice based on the defective notice to appear.
If all three of these propositions are incorrect, as the majority holds, there
is no point remanding for any purpose other than terminating the current
proceedings and requiring issuance of a new, statutorily-compliant notice to
appear. The majority avoids this conclusion by punting—stating it is up to
the Immigration Judge to provide some unspecified remedy for the defective
notice to appear. Matter of Fernandes, 28 I&N Dec. at 616. In doing so, it
sidesteps our responsibility to provide clear guidance to Immigration Judges.
Absent clear guidance, litigation on this issue will proliferate.
If the majority is suggesting that a defective notice to appear can be
remedied after the fact by writing in the time and place of the hearing, it can
point to no regulation authorizing this action—nor identify which date should
be inserted. As noted, the regulation at 8 C.F.R. § 1003.18(b) provides a clear
remedy: the service of a notice of hearing on the respondent supplying the
missing time or place information, as occurred in this case.

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If a notice of hearing under 8 C.F.R. § 1003.18(b) is off the table because
that regulation is ultra vires, as the majority effectively holds, then the only
cure for a noncompliant notice to appear is a compliant one. 	This “cure”
necessarily results in termination because there can only be one notice to
appear in any given proceeding. 	Once DHS withdraws a noncompliant
notice to appear, the proceedings end, pending the filing of a compliant
notice to appear commencing new proceedings. 	See 8 C.F.R. §§ 239.2(a),
(c), 1239.2(a), (c) (2021); see also 8 C.F.R. § 1003.14(a) (stating that the
filing of “a charging document” commences proceedings (emphasis added)).
Thus, although it does not explicitly say so, the majority ultimately reaches
the same result as the outlier decisions from the Seventh Circuit. 	See, e.g.,
Arreola-Ochoa, 34 F.4th 603, 608 (7th Cir. 2022).
The majority denies this, suggesting that DHS may choose to withdraw
the defective notice to appear on remand. 	In reality, DHS has no other
choice—and the majority should acknowledge this. 	For these reasons, I
respectfully dissent and would affirm the decision of the Immigration Judge
in all respects.