Think Immigration: BIA Hands Immigration Judges the Whiteout to “Fix” Defective NTAs

Imagine arriving in the United States seeking protection and safety, expecting to find a system governed by fairness and the rule of law. Instead, you receive a Notice to Appear (NTA), a document legally required to include specific details such as the date and time of your hearing. This information is critical because it doesn’t just tell you that you are in removal proceedings; it tells you when to appear before an immigration judge to argue your case. But what if that NTA lacks this information? What happens when the government fails to follow its own rules?

This is not a hypothetical situation—it is the unfortunate reality for thousands of individuals facing removal proceedings. The law is clear: an NTA must contain certain information, including the date and time of the hearing, for it to be valid under INA § 239(a)(1). Yet, in the vast majority of cases, the Department of Homeland Security (DHS)—the agency solely responsible for issuing and serving the NTA, failed to coordinate with the Executive Office for Immigration Review (EOIR) to obtain a hearing date and time. People facing potential deportation were given a document with no hearing date at all.

In 2018 and in 2021, the Supreme Court made it clear in decisions like Pereira v. Sessions and Niz-Chavez v. Garland that an incomplete NTA cannot fulfill its statutory purpose. Then in 2022, the Board of Immigration Appeals (BIA) declared in Matter of Fernandes a NTA missing a hearing date and time constitutes a violation of a mandatory claims processing rule, and, earlier this year, concluded in Matter of Aguilar Hernandez that DHS cannot remedy the violation by filing a form to amend the NTA. Importantly, “the right to know when and where one’s hearing shall take place” is fundamental to our society’s continued commitment to due process. Despite these rulings, in the years following, DHS has continued to issue defective NTAs.

Last week, the Board of Immigration Appeals (BIA), in Matter of R-T-P-, handed immigration judges the authority to “fix” these defective NTAs instead of requiring DHS to do their job correctly. According to the BIA’s decision, immigration judges—employees of the Department of Justice—can personally remedy a DHS violation of a mandatory claims-processing rule by filling in the missing information themselves upon a motion from the government attorney. This decision is not only an affront to basic civil procedure and due process, but it also underscores the dire need for an independent Article I immigration court.

Defective NTAs: A Persistent Problem

NTAs are at the core of removal proceedings. Yet, for decades, DHS has consistently issued NTAs that lack critical information, such as the hearing’s date and time. These omissions are not mere technicalities; they go to the heart of procedural fairness. Without these details, how can a noncitizen be expected to know when and where to defend themselves? As I have previously testified before Congress, the failure to serve proper NTAs is emblematic of a larger systemic issue within immigration adjudication.

The BIA’s ruling in Matter of R-T-P- exacerbates this problem. Rather than holding the government accountable for its own failures, the decision empowers immigration judges to “fix” the NTA after the fact. This undermines the role of the immigration judge as a neutral arbiter of law and fact. In no other court system in the United States would we allow a judge to correct procedural mistakes made by the party bringing the charges. The immigration court system, already burdened by its lack of independence, is now tasked with perfecting the legal process for the very agency that appears before it.

Procedural Due Process and the Role of the Judge

At its core, the issue is one of procedural due process. The Constitution guarantees that no person shall be deprived of liberty without due process of law. A fundamental aspect of due process is notice—ensuring that individuals are properly informed of the legal proceedings against them. In the immigration context, the NTA is supposed to fulfill this notice requirement. When it fails to do so, the entire proceeding is tainted.

What makes the BIA’s decision so egregious is the fact that federal regulations do not authorize immigration judges to serve NTAs. The judge’s role is to preside over the hearing and rule on the case based on the facts and the law—not to act as an extension of the prosecution. Yet, Matter of R-T-P- allows immigration judges to take on this improper role, effectively turning them into agents of the prosecutors instead of neutral arbiters of law and fact.

A Path Forward: An Independent Article I Immigration Court

This decision only reinforces the urgency for reform. Immigration courts, as currently structured under the control of the Department of Justice, lack the independence necessary to ensure a fair and impartial adjudication process. An immigration judge should never be in a position to "fix" a defective legal document on behalf of the government. This clear conflict of interest undermines the public’s faith in the integrity of the system.

The solution is clear: Congress must create an independent Article I immigration court. Such a court would be free from the inherent conflicts of interest that arise when immigration judges are employees of the same agency tasked with prosecuting removal cases in federal court. An Article I court would ensure that immigration judges are more neutral and fairer.

Conclusion

The BIA’s decision in Matter of R-T-P- is not just an affront to those seeking fairness in the immigration process—it is an affront to our nation’s principles of justice and due process. Immigration judges should not be in the business of correcting the government’s procedural errors. The decision highlights the deep flaws in our current immigration adjudication system and the urgent need for an independent Article I immigration court. Only then can we begin to restore integrity to a system that has long been plagued by its lack of fairness.

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