By Brian Figeroux, Esq. 

The Notice to Appear (NTA) is a pivotal document in removal proceedings, but it is also the first line of defense for immigrants facing deportation.

Introduction

1. Overview of the NTA

The Notice to Appear (NTA) is a crucial document in U.S. immigration proceedings. It serves as the formal charging document issued by the Department of Homeland Security (DHS) to immigrants who may be subject to deportation (also known as removal). The NTA outlines the reasons DHS believes the individual is removable, providing critical information such as the alleged immigration violations, the charges, and the time and location for the immigration court hearing.

While an NTA initiates removal proceedings, it also provides an opportunity for the recipient to mount a defense against deportation. Immigration law offers numerous defenses and procedural arguments to challenge the validity of an NTA or contest the grounds for removal.

2. Objective of the Article

This article examines:

• Legal grounds to challenge the validity of an NTA.
• Defenses against deportation, including procedural, substantive, and derivative defenses.
• Recent case law developments.
• Best practices for attorneys representing clients facing removal proceedings.

1. Anatomy of an NTA
2. Key Components of an NTA

1. Biographical Information:
   • Name, date of birth, and other identifying details.
2. Nature of the Proceedings:
   • Explanation of why the individual is being summoned to immigration court.
3. Charges of Removability:
   • Alleged violations of the Immigration and Nationality Act (INA).
4. Time and Location of the Hearing:
   • Details regarding when and where the individual must appear before an immigration judge (IJ).

1. Common Grounds for Issuance

• Overstaying a visa.
• Illegal entry into the U.S.
• Criminal convictions.
• Violation of visa conditions.

1. Importance of Compliance

Failure to appear at the scheduled hearing can result in an in absentia removal order, barring the individual from relief or reentry for years.

2. Arguments to Nullify an NTA
3. Procedural Defects

1. Incomplete or Deficient NTAs:
   • The U.S. Supreme Court, in Pereira v. Sessions (2018), ruled that an NTA lacking the specific time and place of the hearing is invalid for certain purposes, such as stopping the accrual of continuous residence for cancellation of removal.
   • Subsequent cases, such as Niz-Chavez v. Garland (2021), further affirmed that the government must serve a single, complete NTA with all required details.
2. Failure to Properly Serve:
   • NTAs must be served in accordance with INA § 239. If the government fails to serve the individual or uses improper methods (e.g., mailing to an incorrect address), the NTA may be nullified.
3. Lack of Jurisdiction:
   • An NTA that fails to meet the regulatory requirements may prevent the immigration court from asserting jurisdiction under 8 C.F.R. § 1003.14.

1. Challenging the Underlying Charges

1. Disputing Facts:
   • Contesting the factual allegations in the NTA, such as entry dates or visa conditions.
2. Legal Arguments:
   • Asserting that the charges of removability do not apply based on case law or statutory interpretation.

1. Violations of Due Process

1. Improper Notice:
   • Arguing that defects in the NTA deprived the respondent of fair notice, violating constitutional due process rights.
2. Language Barriers:
   • If the individual did not understand the language of the NTA, this may constitute a due process violation.

1. Timeliness of the NTA

• NTAs issued years after the alleged immigration violation may be challenged as untimely, especially if the delay prejudiced the respondent’s case.

3. Defenses Against Deportation
4. Procedural Defenses

1. Motions to Terminate:
   • Filing a motion to terminate proceedings if the NTA is defective or if the charges lack legal basis.
2. Motions to Suppress:
   • Suppressing evidence obtained in violation of constitutional rights, such as through unlawful searches or racial profiling.

1. Substantive Defenses

1. Cancellation of Removal:
   • For nonpermanent residents: Demonstrating 10 years of continuous residence, good moral character, and exceptional hardship to a qualifying relative.
   • For permanent residents: Showing that the individual has not committed certain serious offenses and has accrued the required residence.
2. Asylum and Withholding of Removal:
   • Establishing a well-founded fear of persecution or torture in the country of origin.
3. Adjustment of Status:
   • Applying for lawful permanent residence if eligible (e.g., through a family member or employment).
4. Waivers of Inadmissibility:
   • Seeking waivers under INA § 212(h) or § 212(i) for certain grounds of inadmissibility.
5. U Visa or T Visa Applications:
   • For victims of crimes or trafficking, who cooperate with law enforcement.

1. Derivative Defenses

1. Citizenship Claims:
   • Asserting derivative citizenship if the respondent’s parents became U.S. citizens before the respondent turned 18 and met residency requirements.
2. Special Immigrant Juvenile (SIJ) Status:
   • Defending children who have been abandoned, neglected, or abused.
3. Temporary Protected Status (TPS):
   • Showing eligibility for TPS based on conditions in the country of origin.

1. Post-Conviction Relief

• Vacating prior criminal convictions that form the basis of removability.

4. Recent Case Law Developments
5. Pereira v. Sessions (2018)

• Established that an NTA must include specific details, such as the time and place of the hearing, to be considered valid.

1. Niz-Chavez v. Garland (2021)

• Reinforced that NTAs must be a single, complete document to trigger the stop-time rule for cancellation of removal.

1. Sanchez v. Garland (2021)

• Clarified the eligibility requirements for adjustment of status for TPS recipients.

1. Matter of Pena-Mejia (2020)

• Addressed jurisdictional challenges when NTAs fail to include proper service details.

5. Best Practices for Attorneys
6. Reviewing the NTA Thoroughly

• Checking for procedural defects or incomplete information.

1. Filing Timely Motions

• Ensuring motions to terminate or suppress are filed early in the proceedings.

1. Building a Comprehensive Defense

• Collecting evidence of residence, moral character, and hardships to support cancellation of removal or other defenses.

1. Educating Clients

• Explaining the importance of attending all hearings and complying with court orders.

6. Challenging the NTA: Procedural and Legal Arguments
7. Procedural Defects

Procedural flaws in the issuance or service of the NTA can form a strong basis for nullifying the document and terminating removal proceedings. These arguments often focus on compliance with statutory and regulatory requirements.

1. Incomplete or Deficient NTAs
   • Under 8 U.S.C. § 1229(a), an NTA must include specific information, such as:
     • The nature of the proceedings.
     • The charges and statutory grounds for removability.
     • The time and place of the hearing.
   • In Pereira v. Sessions (2018), the Supreme Court ruled that an NTA lacking the time and place of the hearing is statutorily deficient for certain purposes, such as stopping the accrual of continuous residence for cancellation of removal.
   • In Niz-Chavez v. Garland (2021), the Court further clarified that the government must issue a single, complete NTA with all required details. Piecemeal notices that omit critical information are insufficient.

Defensive Strategy:

• File a motion to terminate proceedings based on a defective NTA.
• Argue that the immigration court lacks jurisdiction due to the government’s failure to meet statutory requirements.

1. Improper Service
   • The NTA must be served personally or by mail to the individual’s last known address, as required by 8 C.F.R. § 103.8.
   • Failure to serve the NTA properly can render the proceedings invalid.

Defensive Strategy:

• Present evidence of improper service, such as proof that the NTA was sent to an outdated address despite the respondent’s compliance with address update requirements.

1. Lack of Jurisdiction
   • The immigration court’s jurisdiction is contingent on the proper filing of an NTA under 8 C.F.R. § 1003.14.
   • Defective NTAs may fail to invoke jurisdiction, leading to the dismissal of proceedings.

Defensive Strategy:

• Challenge the court’s jurisdiction if the NTA does not meet the regulatory requirements or if service was incomplete.

1. Challenging the Underlying Charges

1. Disputing the Allegations
   • Review the factual allegations in the NTA and compare them against supporting evidence. Many NTAs contain errors regarding dates, visa classifications, or other key details.

Defensive Strategy:

• Submit evidence, such as travel records or employment documents, to refute the government’s claims.

1. Legal Challenges to Removability
   • The NTA must cite specific statutory grounds for removability. Ambiguities or incorrect charges can be grounds for dismissal.

Defensive Strategy:

• Argue that the cited provisions of the INA do not apply to the individual’s circumstances or that the government has failed to meet its burden of proof.

1. Violations of Due Process

1. Improper Notice
   • If the NTA fails to provide adequate notice, it may violate the respondent’s due process rights under the 5th Amendment.

Defensive Strategy:

• Argue that the lack of proper notice prejudiced the respondent’s ability to prepare a defense.

1. Language Barriers
   • The NTA must be served in a language the respondent understands or be accompanied by sufficient translation services.

Defensive Strategy:

• Present evidence that the respondent could not comprehend the charges due to language deficiencies, thereby undermining the validity of the proceedings.

7. Defenses Against Deportation
8. Procedural Defenses

1. Motions to Terminate
   • Procedural defects in the NTA, improper service, or jurisdictional challenges can form the basis of a motion to terminate removal proceedings.

Defensive Strategy:

• File a motion early in the case, supported by evidence of defects.

1. Motions to Suppress
   • Evidence obtained through unlawful means, such as racial profiling or violations of constitutional rights, may be suppressed.

Defensive Strategy:

• Argue that the evidence forming the basis of removability is tainted and inadmissible.

1. Substantive Defenses

1. Cancellation of Removal
   • Nonpermanent residents must demonstrate:
     • 10 years of continuous physical presence.
     • Good moral character.
     • Exceptional and extremely unusual hardship to a qualifying U.S. citizen or lawful permanent resident (LPR) relative.
   • LPRs must show:
     • 7 years of continuous residence.
     • No aggravated felony convictions.

Defensive Strategy:

• Present evidence of hardships, such as medical records, school performance of children, or financial dependence of family members.

1. Asylum and Withholding of Removal
   • Establishing eligibility for asylum or withholding of removal requires demonstrating a well-founded fear of persecution on account of:
     • Race, religion, nationality, political opinion, or membership in a particular social group.

Defensive Strategy:

• Provide documentation, country condition reports, and personal testimony to support the claim.

1. Adjustment of Status
   • Certain individuals may be eligible to adjust their status to that of an LPR through family or employment-based petitions.

Defensive Strategy:

• File an adjustment of status application, along with supporting evidence, to halt removal proceedings.

1. Waivers of Inadmissibility
   • INA § 212(h) or § 212(i) allows waivers for specific grounds of inadmissibility, such as fraud or certain criminal convictions.

Defensive Strategy:

• Demonstrate rehabilitation, hardship to qualifying relatives, or other mitigating factors.

1. U Visa and T Visa Applications
   • U visas are for victims of certain crimes, while T visas are for victims of human trafficking.

Defensive Strategy:

• Collaborate with law enforcement to obtain certification and provide evidence of victimization.

1. Derivative Defenses

1. Derivative Citizenship
   • Individuals who acquired citizenship through their parents may raise a defense of derivative citizenship.

Defensive Strategy:

• Present documentation of parental citizenship and the respondent’s residency in the U.S. during the qualifying period.

1. Special Immigrant Juvenile (SIJ) Status
   • Children who have been abandoned, neglected, or abused may qualify for SIJ status, which provides a pathway to a green card.

Defensive Strategy:

• Obtain state court findings and submit an SIJ application with supporting evidence.

1. Temporary Protected Status (TPS)
   • TPS protects individuals from countries experiencing armed conflict or natural disasters.

Defensive Strategy:

• Demonstrate eligibility for TPS based on country-specific designations.

1. Post-Conviction Relief

Criminal convictions often form the basis of removability. In some cases, convictions can be vacated or modified to eliminate immigration consequences.

Defensive Strategy:

• Work with criminal defense attorneys to challenge convictions on constitutional or procedural grounds.

 

8. Recent Case Law Developments
9. Pereira v. Sessions (2018):

• Established that an NTA must include specific details to stop the accrual of continuous residence.

1. Niz-Chavez v. Garland (2021):

• Reinforced the need for a single, complete NTA.

1. Sanchez v. Garland (2021):

• Clarified adjustment of status eligibility for TPS holders.

1. Matter of Pena-Mejia (2020):

• Addressed jurisdictional challenges for defective NTAs.

 

9. Best Practices for Attorneys
10. Reviewing the NTA

• Scrutinize for defects, missing information, or improper service.

1. Filing Timely Motions

• Submit motions to terminate or suppress early in proceedings.

1. Building a Comprehensive Defense

• Gather evidence of residence, hardship, and character.

1. Educating Clients

• Explain the importance of attending hearings and complying with court orders.

 

Conclusion

The Notice to Appear (NTA) is a pivotal document in removal proceedings, but it is also the first line of defense for immigrants facing deportation. By challenging procedural defects, mounting substantive defenses, and leveraging recent case law, attorneys can protect their clients’ rights and preserve their path to legal status. Figeroux & Associates remains committed to defending immigrants and ensuring fair treatment under the law.

For further guidance, join our seminar or contact us at www.askthelawyer.us.

 

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