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Unpub. BIA Termination Victory

February 07, 2022 (1 min read)

Helen Harnett writes: "I thought you might be interested in this BIA decision. The IJ terminated proceedings because the NTA did not contain a time or date. DHS filed an appeal, arguing:

·       That the Seventh Circuit in Ortiz-Santiago held that an Immigration Judge does not have authority to terminate a case based on a statutorily deficient NTA
·       That because the Seventh Circuit found the requirements of an NTA to be claims processing rules instead of jurisdictional rules, an Immigration Judge cannot terminate a case based on a statutorily deficient NTA because, by doing so, the Immigration Judge is treating the lack of a time and date as jurisdictional (this was my favorite argument)
·       That the Seventh Circuit in Ortiz-Santiago and Chen “instructed that the proper response to a timely objection is correcting the NTA while proceedings are ongoing”
DHS asked the Board to issue a published decision establishing that Immigration Judges do not have the authority to dismiss a case that DHS initiated with a statutorily deficient NTA.
The BIA, in [this unpublished Jan. 31, 2022 decision and order by CAIJ Wetmore], declined to misconstrue Seventh Circuit precedent.
Amina Najib, now a Supervisory Attorney at Legal Aid Chicago, handled the case before the IJ."
[Hats off to Helen Harnett and Amina Najib!]