The Board of Immigration Appeals has issued a decision in Matter of LAPARRA, 28 I&N Dec. 425 (BIA 2022).
A respondent receives sufficient written notice to support the entry of an in absentia order of removal, even if he or she was served with a noncompliant notice to appear that did not specify the time or place of the hearing, where the respondent was properly served with a statutorily compliant notice of hearing specifying this information.Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), distinguished.Matter of Pena‑Mejia, 27 I&N Dec. 546 (BIA 2019), and Matter of Miranda‑Cordiero, 27 I&N Dec. 551 (BIA 2019), reaffirmed.
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Executive Office for Immigration Review
Office of Policy
Communications and Legislative Affairs Division
703-305-0289
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Perhaps, contrary to the BIA and some Circuits (both with judges who haven’t had to practice immigration law), Congress had a reason for specifying the contents of a unitary “Notice to Appear” by statute.
Let’s apply that thought in the “real world” rather than the “ivory tower universe” in which most appellate judges exist. In this case, the respondent was personally served with the defective Notice to Appear (“NTA”). Had that notice been legally sufficient under the statute, the respondent would have had critical information — the date, time and place of her upcoming hearing — in her hand.
Nearly two years later (gives you a clue about the “disorder in the Immigration Courts”), EOIR finally got around to correcting the defect by sending her “the missing piece” of the statutorily required unified notice by regular U.S. Mail. It was to the “address provided by the respondent” almost two years earlier. (Notably, the NTA gave the respondent only three weeks advance notice, although EOIR took almost two years to notify her of this date.)
Anybody out there have problems with USPS delivery? I get my neighbors’ mail — sometimes things that look like official communications or financial information — on a fairly regular basis. And, I’ll bet the mail service in our neighborhood is better than that in many of the neighborhoods where recently arrived migrants reside.
Also, we know most of our neighbors and insure that the mail is promptly taken to the correct address — even if that means us “walking it over” and knocking on the door. Think that happens in more “transient” neighborhoods?
Think that there might, just might, also be problems with “regular mail” sent by EOIR? It’s a totally dysfunctional agency suffering from the chaos of a 1.6 million case backlog, no effective automation, no competent leadership, lack of accountability, and a demoralized, underpaid, overwhelmed, and under-appreciated clerical staff! It’s a culture where “good enough for Government work” — basically the BIA approach in this precedent — has been normalized and institutionalized.
In private practice, we used to get notices from the INS of unrelated cases represented by other attorneys stuffed in the same envelope with our firm’s notices. Think today’s EOIR operates better than yesterday’s INS? I wouldn’t “bet the farm” on that!
Also, let’s think about the “address given by the respondent.” The NTA directs the respondent to file any changes of address with EOIR. But, if DHS hasn’t “filed” the NTA with EOIR, it won’t be entered into the EOIR system.
Moreover, even when DHS has supposedly “filed” the NTA with EOIR, that doesn’t mean that it has been manually entered into the EOIR system by the overwhelmed clerks. And, it doesn’t mean that the manual data entry is accurate!
Without prompt entry of accurate information, the later EOIR notice has a good chance of misdelivery. Also, if the respondent duly files a change of address for a case that hasn’t been correctly entered into the EOIR system, that change of address won’t get linked up with the case file. Indeed, stacks of unfiled change of address forms waiting to be filed were a staple of Arlington and other Immigration Courts.
Given that both the Trump and Biden Administrations have allowed ICE to just randomly toss hundreds of thousands of “low priority cases” or cases that could be resolved within DHS into Immigration Court, this problem has only gotten worse under Garland, as shown by the dramatic increase in the EOIR backlog during his “What Me Worry” tenure.
PHOTO: Wikipedia Commons
Once upon a time, the Arlington Immigration Court was operating without a permanent Court Administrator. During that period, boxes of NTAs brought over by DHS were simply “warehoused” in the Court Administrator’s vacant office because the overwhelmed staff couldn’t keep up with data entry, given the other (often mindless) “priorities” imposed by the “Aimless Docket Reshuffllers” at Headquarters and the DOJ. There must have been hundreds of NTAs sitting there unentered into the EOIR manual system. Essentially they were “lost in space.”
At one time, EOIR had established an “interactive scheduling system” that allotted a certain number of specific “nondetained Master slots” weekly to ICE and to the Asylum Office on each IJs docket. This insured that the respondents received real hearing dates on the NTA and reduced the burden on court staff to schedule initial Masters.
Additionally, and importantly, it gave EOIR control over their dockets. ICE couldn’t “flood” dockets beyond the Individual Judge Master Calendar time actually available in each court.
While I had been “exiled from the Tower” by the time this sensible system was abandoned, my impression is that it was the result of pressure from DHS Enforcement and DOJ politicos to create “new priorities” or conduct mass enforcement operations far in excess of EOIR’s capacity to actually schedule and fairly and professionally decide cases. Gradually, during my tenure, the Master Calendar system got out of control and the court’s storage areas were literally filled with “stockpiled” cases awaiting scheduling notices.
Any semblance of discipline, order, and control by individual IJs over dockets quickly disappeared as dockets were “reshuffled” to meet the agendas of political officials at DHS and EOIR. On my final day on the bench, June 30, 2016, I was setting “second Masters” for a year later and setting Individual Merits hearings for Dec. 2022 and Jan. 2023. My colleague on the non-detained docket was even “further out.”
Out of six IJs then available, only two of us were assigned to the non-detained docket that comprised the vast majority of the Arlington Court’s work. Our other four colleagues were assigned full-time to “other priorities” designated by “Headquarters” and DOJ politicos, largely at the behest of DHS Enforcement.
Maybe Congress actually had better insights into the chronic administrative problems at EOIR than appellate judges at the BIA and the Circuits who attempt to “paper over” the problems and shift the consequences of the Government’s intentionally poor performance to hapless respondents — who have no control over the broken system. But, then, if you regularly hire appellate judges who have never practiced immigration law — even though it’s perhaps the largest and certainly the most controversial segment of Federal Civil litigation docket — you’re not likely to get either practical decisions or fair legal solutions.
The BIA and EOIR have already been “dinged” twice by the Supremes for trying to cover up the conscious choice by DHS and EOIR not to comply with the statutory requirements for an NTA. Both of those incorrect BIA decisions have caused unjust results and created additional, preventable backlog havoc by requiring reopening and redoing of tens of thousands of cases decided under legally wrong BIA precedents! If Garland’s BIA “gets the trifecta” — going down for the third time before the Supremes — the disorder, backlog, and Aimless Docket Reshuffling (one of Garland’s specialties) will be exponentially increased— again!
EOIR’s and DHS’s choice to attempt to “sidestep” clear Congressional statutory requirements and Supreme Court decisions, to “cover up” the predictable consequences of lawless Government practices has dramatic “real life effects.” That’s why Garland’s choice not to replace the BIA and EOIR administrators with “pros” who have practiced before the courts, know the law, and understand the problems is so devastating to our justice system — at all levels!
As my esteemed colleague “Sir Jeffrey” Chase of the Round Table said after receiving the LAPARA decision from Dan Kowalski over at LexisNexis: “Seriously. I feel like I’ve heard this song before . . . .”
Of course we have! And it’s going to continue until someone: 1) takes this mess away from DOJ; or 2) forces Garland to pay attention, remove the incompetents and Trump/Miller “plants” at EOIR, and bring in a high-level team of recognized experts in immigration, human rights, and administration empowered to stop the bleeding, get rid of the “problem children,” and begin the long overdue work of fixing this incredible mess!
🇺🇸Due Process Forever!
PWS
01-19-22