Criminal Defense of Immigrants
§ 15.24 1. Notice to Appear
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Immigration proceedings are initiated upon the DHS issuing a Notice to Appear (“NTA”) on Form I-862, to the noncitizen and filing that NTA with an immigration court. The NTA serves as written notice to a noncitizen of the initiation of proceedings, and must be provided to the noncitizen in person or by mail to the noncitizen or the noncitizen’s attorney of record.
The NTA must contain the following information:
(a) The nature of the proceedings (i.e., “removal proceedings”);
(b) The legal authority under which the proceedings are conducted (i.e., INA § 240, 8 U.S.C. § 1229a);
(c) The acts or conduct alleged to be in violation of law;
(d) The charges against the noncitizen and the statutory provisions alleged to have been violated.
(e) That the noncitizen may be represented by counsel.
(f) Notice the noncitizen must immediately provide a current address and telephone number; and
(g) The time and place at which proceedings will be held, as well as the consequences for failure to appear.
An NTA generally names the noncitizen as “respondent” to the NTA, and categorizes the noncitizen as either (1) an “arriving alien”; (2) a noncitizen present without admission or parole; or (3) a noncitizen admitted to the United States.
The NTA then has a space for factual allegations (often made on a separate sheet), and then another space for the charges for violation of provisions of the INA based upon the factual allegations (also often made on a separate sheet). The factual allegations generally state that the respondent is not a citizen of the United States, is a citizen of a specified foreign country, current immigration status and how it was obtained, and then any criminal activity, history, and sentence upon which the removal charges are based. The charges themselves directly refer to the various grounds of inadmissibility or deportability by section, and describe the statutory ground of removal changed. The DHS may lodge additional allegations and charges against a respondent at any time during the proceeding before the immigration judge. These additions must be presented in writing and must be read in open court.
In most cases, the NTA will identify the immigration court at which the noncitizen must appear, but will leave the date and time of the hearing to be set by the immigration court, which will send a hearing notice to the noncitizen after the NTA has been filed with the immigration court. In order for the noncitizen to have an opportunity to find counsel, the court is not allowed to schedule a hearing earlier than 10 days after the NTA has been served on the noncitizen.
 Formerly known as an Order to Appear (“OSC”) prior to April 1, 1997.
 INA § 239, 8 U.S.C. § 1229; 8 C.F.R. § § 3.13-3.14.
 8 C.F.R. § 1003.27(d).
 INA § 239(a)(1), 8 U.S.C. § 1229(a)(1).
 8 C.F.R. § 1003.30.
 A motion for change of venue to another immigration court may be granted for good cause. 8 C.F.R. § 1003.20.
 INA § 239(b)(1), 8 U.S.C. § 239(b)(1).
JUDICIAL REVIEW - PETITION FOR REVIEW - BIA USED INAPPROPRIATE LEGAL STANDARD IN DECIDING MOTION TO REOPEN
Kozak v. Gonzales, 502 F.3d 34 (1st Cir. Sept. 14, 2007) (petition for review of a denial of a motion to reopen removal proceedings is granted where the BIA applied an inappropriate legal standard in determining whether or not petitioner had received notice of the removal hearing).
REMOVAL PROCEEDINGS - DUE PROCESS - RIGHT TO NOTICE OF THE CHARGE
Pierre v. Holder, 588 F.3d 767 (2d Cir. Dec. 8, 2009) (BIA violated due process by sua sponte finding noncitizen to be an aggravated felon under INA 101(a)(43)(U) where that ground had not been brought as a charge in the NTA).
IMMIGRATION PROCEEDINGS - NOTICE
Santana Gonzales v. Attorney General, __ F.3d __, 2007 WL 3052783 (3d Cir. Oct. 22, 2007) ("We now hold ... that Grijalvas strict evidentiary standard - a strong presumption - applies only when a notice from an Immigration Court or the INS (or Department of Homeland Security) is sent by certified mail, and that a weaker presumption of receipt applies when such a notice is sent by regular mail.").
OVERVIEW " APPEAL " VENUE LIES WITH LOCATION OF IJ
Borovsky v. Holder, 612 F.3d 917 (7th Cir. Jul. 26, 2010) (Prior to briefing, a dispute arose on whether venue was proper in the Seventh Circuit, since the IJ completed the proceedings in Chicago by video-conference, or the Eighth Circuit, since the parties appeared in the immigration court in Kansas City. After a series of motions, the Attorney General conceded that venue was proper in this Circuit. See Ramos v. Ashcroft, 371 F.3d 948, 949 (7th Cir. 2004); further finding that petitioner was not harmed by the BIAs error of citing Eighth Circuit case law).
JUDICIAL REVIEW - PETITION FOR REVIEW - IMMIGRATION JUDGE LACKS AUTHORITY TO AMEND NTA SUA SPONTE - OPEN QUESTION
Lazaro v. Mukasey, 527 F.3d 977 (9th Cir. Jun. 4, 2008) (remanding case to BIA to decide in first instance question whether the IJ acted beyond her authority in amending his NTA sua sponte).
OVERVIEW " IMMIGRATION PROCEEDINGS " ISSUANCE OF NTA
A notice to appear must be signed the appropriate DHS official to be valid. A memorandum of understanding lays out who in the USCIS and ICE can issue an NTA. http://www.aila.org/content/default.aspx?docid=33273
NO SANCTIONS FOR DHS DELAY IN FILING NTA FOLLOWING CONVICTION
There is no statute of limitations requiring the federal immigration authorities to begin deportation proceedings within a certain time after a deportable conviction occurs. It is true that federal statute provides that "the Attorney General shall begin any removal proceedings [in the case of an alien who is convicted of an offense which makes the alien deportable] as expeditiously as possible after the date of the conviction." (INA 239(d)(1), 8 U.S.C. 1229(d)(1).) The following subsection, however, makes clear Congress' intent not to "create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person." (INA 239(d)(2), 8 U.S.C. 1229(d)(2).)
The DHS is thus free to initiate deportation proceedings against a noncitizen 5, 10, 25 years, or more after the deportable conviction has occurred. E.g., Atkinson v. Attorney General of U.S., 479 F.3d 222 (3d Cir. 2007) (deportation proceedings begun in June, 1997, on the basis of a Dec. 1991, conviction of conspiracy to distribute a controlled substance: six-year delay); Toia v. Fasano, 334 F.3d 917 (9th Cir. June 30, 2003) (removal proceedings first begun in 1997 on the basis of a 1989 conviction: eight-year delay); Matter of Brevia, 23 I. & N. Dec. 766 (BIA 2006), affd, Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. 2007) (deportation proceedings begun in February, 2003, on the basis of a 1995 conviction of unauthorized use of a motor vehicle: eight-year delay). There is no legal protection whatsoever against government delay in the initiation of removal proceedings. (INA 239(d)(2), 8 U.S.C. 1229(d)(2).)
OVERVIEW " CONTACT WITH DHS
USCIS and ICE issue new guidance on referring of cases to immigration proceedings and the issuance of NTAs in cases involving removable noncitizens. The USCIS memorandum outlines when the USCIS will issue an NTA (i.e. upon termination of conditional permanent residence), and when the USCIS must refer the case to USICE to determine whether an NTA should be issued (i.e. an N-400 application where the applicant has a criminal conviction). This memorandum goes into some detail on what to do when the N-400 applicant is eligible for naturalization but, at the same time, is subject to a criminal ground of removal. http://www.aila.org/content/default.aspx?docid=37578 The USICE memorandum discusses the scope of the previously announced review of cases currently pending before the EOIR, but notes that the review process will be reviewed and possibly changed after Jan. 13, 2012. http://www.aila.org/content/default.aspx?docid=37680 The USCIS guidance lists cases that are enforcement priorities for the DHS, including persons who are convicted of felonies, multiple misdemeanors, or misdemeanors involving violence, threats, sexual abuse, DUI, hit & run, drugs, or other significant threats to public safety. The guidance also lists low priority cases, including long-time LPRs with only a single non-violent offense, children, victims of domestic violence, DREAMers, persons who served in the U.S. military and others. http://www.aila.org/content/default.aspx?docid=37681