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November 19, 2024 (1 min read)Matter of LARIOS-GUTIERREZ DE PABLO and PABLO-LARIOS, 28 I&N Dec. 868 (BIA 2024)
The Board’s holding in Matter of Fernandes, 28 I&N Dec. 605, 610–11 (BIA 2022), that an objection to a noncompliant notice to appear will generally be considered timely if raised prior to the close of pleadings is not a change in law, and thus Matter of Fernandes applies retroactively.
“In a decision dated October 24, 2022, the Immigration Judge granted the respondents’ motion to terminate their removal proceedings based on a noncompliant notice to appear. The Department of Homeland Security (“DHS”) has appealed, arguing that the Immigration Judge erred in not applying Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022). The appeal will be sustained, and the record will be remanded. … Our guidance in Matter of Fernandes as to the timeliness of the claim-processing rule objection to a noncompliant notice to appear applies retroactively. The respondents did not object to the missing information in their notices to appear before the close of pleadings and have not otherwise demonstrated that their objection should be considered timely. Thus, they have forfeited their objection. We will sustain DHS’ appeal, vacate the Immigration Judge’s decision, and remand for further proceedings.”