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The omission of the time or date of a noncitizen’s removal hearing on a Notice to Appear can be grounds for rescission of an in absentia removal order

California

,

USA

An in absentia removal order can be rescinded if a noncitizen did not receive notice in accordance with paragraph (1) or (2) of 8 U.S.C. § 1229(a) In Singh v. Garland, No. 20-70050 (9th Cir. 2022), the petitioner sought rescission of a removal order, entered in absentia, on the bases that he did not receive proper notice where the time and date of the removal hearing were listed as “TBD” on the Notice to Appear and because “exceptional circumstances” were present in his case. Pursuant to Paragraph (1) of Section 1229(a), a Notice to Appear must include the time and place at which the proceedings will be held Paragraph 1 of § 1229(a) defines the “Notice to Appear” and requires the government to specify seven enumerated categories of information including the “time and place at which the proceedings will be held.” Failure to state the time or date of the removal hearing in a Notice to Appear cannot be cured by sending subsequent hearing notices The government argued that although the petitioner received a Notice to Appear that failed to state the time or date of his removal hearing, this omission was cured by subsequent hearing notices that were sent to him. The Court disagreed and found that the government’s interpretation of § 1229a(b)(5)(C)(ii) contravened the unambiguous statutory text and the Supreme Court’s decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (“Niz-Chavez”). In Niz-Chavez, the Supreme Court interpreted § 1229(a) to require a “single statutorily compliant document” to trigger the stop-time rule and concluded that a subsequent hearing notice could not cure a defective Notice to Appear. The word “or” in Section 1229a(b)(5)(A) does not displace the Supreme Court’s interpretations of “Notice to Appear” The government argued that because § 1229a(b)(5)(A) allows for in absentia removal if a noncitizen received notice in accordance with paragraph (1) or (2) of §1229(a), the government should be permitted to cure a defective Notice to Appear with a subsequent hearing notice in the in absentia removal context. The Court rejected this argument and explained that paragraph (2) of § 1229(a) is entitled “Notice of change in time or place of proceedings” and presupposes that the Notice to Appear provided in paragraph (1) must have included a date and time because otherwise, a “change” in the time or place is not possible. The Court held that a noncitizen must receive a valid Notice to Appear, which is a single document that must include, among other things, the time and date of the hearing, before they can be ordered removed in absentia. Disposition The Court granted the petition to rescind the in absentia removal order on the ground that the government failed to provide the petitioner with proper notice under § 1229(a).

April 14, 2022
Singh v. Garland, No. 20-70050 (9th Cir. 2022)
Federal Courts (9th Circuit)