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In a decision that could possibly impact over 100,000 non-citizens and their families, the Ninth Circuit has ruled that immigrants ordered removed in absentia for missing their immigration court hearing can now ask to have their cases reopened and their deportation orders canceled, if the DHS Notice to Appear (NTA) failed to include both time and place of the hearing. These court hearings are critical, because DHS is so often wrong in determining that a non-citizen is deportable, and many immigrants can qualify for relief or a waiver of deportation by the immigration judge.
In Varinder Singh v. Garland, the Ninth Circuit addressed DHS’s common practice of fast-tracking removal cases by issuing the NTA against immigrants facing deportation but failing to include the time and date of the removal hearing. In those cases, DHS would rely on the immigration court to mail a Notice of Hearing to non-citizens to fill in the gap and provide them with this critical information.
The Board of Immigration Appeals (BIA) had just taken up this issue in 2021 in Matter of Sergio Rodolfo Laparra-DeLeon. In sum, the BIA ruled that a non-citizen can be ordered removed in absentia, even where the NTA fails to list the time or place of the removal hearing, where a subsequent hearing notice containing this information is sent to the non-citizen. The BIA attempted to distinguish this case from Niz-Chavez v. Garland, where the Supreme Court in 2021 made clear the important legal requirements that DHS provide immigrants with notice of the time and place of their hearing in a single NTA, and not rely on the immigration courts to do this later, in denying a non-citizen the eligibility to apply for cancellation of removal. Essentially, the BIA stated that the protections against entry of an in absentia removal order was different from rendering an immigrant ineligible to apply for cancellation of removal.
The 9th Circuit rejected this argument in Varinder Singh v. Garland, prohibiting the immigration court from entering an in absentia removal order where the non-citizen was denied an NTA containing all of this information in a single document. The 9th Circuit ruled that the Supreme Court was in Niz-Chavez that a non-citizen must receive an NTA providing proper notice of both time and place to be effective and trigger adverse consequences, like entry of an in absentia removal order.
The impact of Varinder Singh v. Garland cannot be overestimated. To give a sense of its magnitude, the Congressional Research Service reports that approximately 50,000 non-citizens were ordered removed in FY2018, 80,000 in FY 2019, and 60,000 in FY2020. DHS’s failure to provide both the date and place of a removal hearing on the Notice to Appear has effectively been their standard operating procedure ever since 1997, when the immigration courts implemented the removal proceedings format.
Our office will continue to monitor implementation of Varinder Singh decision. If you have been ordered removed in absentia, it is critical now to consult with an experienced immigration defense attorney to find out if your removal order can be withdrawn and go over your options to remain legally in the United States.
