Should Deportation Cases be Terminated on Technicality?

Press Releases

September 6, 2023

ACLU Confirms the Left’s Goal

IRLI, attorneys’ group show immigration officials can cure technical deficiencies

WASHINGTON—Recently, the Immigration Reform Law Institute (IRLI) and Attorneys United for a Secure America (AUSA), a project of IRLI, both submitted briefs to the Board of Immigration Appeals, the nation’s immigration appellate court, in a case that threatens to cancel thousands of deportation cases across the country.

Often, when immigration officials issue an alien a notice to appear in immigration court for a removal proceeding, the government does not yet know the time and place of the hearing. In those cases, officials will later send the alien a notice of hearing that contains this information.

By statute, however, the earlier notice to appear also should contain this time and place information. The question before the Board is whether an immigration judge must terminate the hearing when the notice to appear does not contain this information, even though the alien was notified of the time and place in a subsequent notice of hearing, and can show no harm from receiving the information in that way.

The answer, IRLI and AUSA show, is that the information requirements for the notice to appear are a claim processing rule that can be followed flexibly, by providing missing time and place information in a subsequent notice of hearing, not a jurisdictional requirement that would require a deportation hearing to be terminated even if the alien had received notice of when and where it would be.

“Activist, anti-borders attorneys keep trying to hobble our deportation system in the courts,” said Dale L. Wilcox, executive director and general counsel of IRLI. “In this latest attempt, they are trying to hold the government to an impossible standard of foreknowledge and get deportations dismissed even when their clients have received full notice of their hearings. We hope the Board sees the legal baselessness of the activists’ arguments, and rules accordingly.”

The case is Amicus Invitation No. 23–01–08 Notice to Appear (BIA).

Links: IRLI brief; AUSA brief

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