Section 239 of the Immigration and Nationality Act, codified at 8 U.S.C. § 1229, sets the rules for the Notice to Appear (NTA), the charging document the Department of Homeland Security uses to start removal proceedings against a noncitizen. The statute spells out what the NTA must say, how it must be served, and what counts as valid notice. A string of Supreme Court and Board of Immigration Appeals decisions since 2018 has tightened how strictly those requirements are read, and defects in an NTA can change whether the stop-time rule applies, whether an in absentia removal order can be undone, and how the government is allowed to fix its paperwork.
What the Notice to Appear Must Contain
Under INA 239(a)(1), the written NTA served on a noncitizen must include:
- The nature of the proceedings and the legal authority for them.
- The specific acts or conduct alleged to violate immigration law, the charges of removability, and the statutory provisions the person is accused of violating.
- Notice of the right to be represented by counsel, together with a list of free or low-cost legal service providers.
- An explanation of the requirement to provide and keep current an address and phone number, and the consequences of failing to do so.
- The time and place at which the removal hearing will be held, along with the consequences of failing to appear.
That last item, the time and place, is the requirement that has driven most of the recent litigation.
How and When the NTA Must Be Served
The NTA must be served in person. If in-person service is not practicable, it may be served by mail on the noncitizen or their attorney of record. Once served, a hearing cannot be scheduled sooner than 10 days later, unless the noncitizen asks in writing for an earlier date. The 10-day window exists so the person has time to find a lawyer.
Who Can Issue an NTA
The implementing regulation at 8 C.F.R. § 239.1 gives issuing authority to a wide range of DHS personnel: immigration officers performing inspections at ports of entry, district directors, chief patrol agents, field office directors, supervisory deportation officers, special agents in charge, and other DHS officials at various levels. Any DHS employee who has been delegated the authority and completed the required immigration law enforcement training may also issue one.
When a Defective NTA Blocks the Stop-Time Rule
Cancellation of removal is a form of relief that lets certain long-term residents avoid deportation, but it requires a specified period of continuous physical presence or residence in the United States. Under INA 240A(d)(1), that clock stops when the person is served with a Notice to Appear “under section 239(a).” Whether a particular NTA qualifies has been the central fight.
Pereira v. Sessions (2018)
Wescley Fonseca Pereira received an NTA that listed the time and place of his hearing as “to be determined.” The government argued this was enough to trigger the stop-time rule. In an 8-1 decision written by Justice Sotomayor, the Supreme Court disagreed. An NTA that fails to specify the time or place of the hearing is not a “notice to appear under section 1229(a)” and does not stop the clock. The statute’s plain language requires the NTA to specify time and place, and a document that fails to do so does not serve its basic function.
Niz-Chavez v. Garland (2021)
After Pereira, the government’s common practice was to send an initial NTA without the hearing date and then mail a separate hearing notice later. In Niz-Chavez v. Garland, the Court rejected this two-step approach in a 6-3 opinion by Justice Gorsuch. The indefinite article “a” before “notice to appear” means the statute contemplates a single document, not a series of papers delivered over time. “Pleas of administrative inconvenience,” the Court wrote, “never justify departing from the statute’s clear text.” A later hearing notice cannot cure a defective initial NTA for stop-time purposes.
Matter of Chen (BIA 2023)
The Board of Immigration Appeals extended the logic in Matter of Chen, holding that a final removal order does not itself trigger the stop-time rule. The statute lists only two clock-stopping events: service of a compliant NTA and the commission of certain criminal offenses. A final removal order is neither. A person whose original NTA was defective can therefore keep accruing physical presence even after being ordered removed, and may become eligible for cancellation if they later succeed in reopening the case.
Does a Defective NTA End the Case?
If a defective NTA is not really a “notice to appear” under the statute, one might expect the immigration court to lack jurisdiction over any proceeding built on it. The BIA and every federal appeals court to consider the question have rejected that argument.
In Matter of Bermudez-Cota (2018) and later Matter of Arambula-Bravo (2021), the BIA held that a defective NTA does not deprive the immigration court of jurisdiction, so long as a subsequent hearing notice provides the missing time and place. The Board treats the NTA’s content requirements as a “claim-processing rule” rather than a jurisdictional prerequisite. The distinction matters: a jurisdictional defect cannot be waived and forces dismissal, while a claim-processing rule violation must be raised by the noncitizen and can potentially be remedied without terminating the case.
How a Defective NTA Can Be Fixed
With hundreds of thousands of NTAs issued without hearing dates, the mechanics of repair became urgent. The BIA answered in two 2024 decisions.
In Matter of Aguilar Hernandez (2024), the BIA ruled that DHS cannot use Form I-261, the standard form for adding or substituting charges of removability, to supply the missing hearing date and time. The regulation governing Form I-261 limits its use to charges and factual allegations, and a hearing date is neither. Using it as a workaround would amount to the notice-by-installment approach Niz-Chavez forbids.
In Matter of R-T-P- (2024), the Board found a path the government can use. On motion from DHS, an immigration judge may amend the original NTA in the court’s record to include the hearing date and time. Because the amended NTA remains a single document rather than a separate filing, the single-document requirement is satisfied. The Board set four conditions for a valid remedy:
- The result must be a single document containing all required information.
- The procedure must be consistent with governing rules.
- The remedy must serve the purpose of the claim-processing rule, specifically giving the noncitizen at least 10 days’ notice of a future hearing to secure counsel.
- The remedy must not prejudice the noncitizen.
The R-T-P- approach is expected to face challenges in the federal courts of appeals, where it may receive different treatment than at the BIA.
In Absentia Removal Orders and Defective Notice
If a noncitizen fails to appear at a scheduled hearing after receiving proper written notice, the immigration judge must order removal in absentia. The consequences are heavy: the person loses the chance to contest removal or apply for relief, and is barred for 10 years from most forms of immigration relief, including cancellation of removal, voluntary departure, and adjustment of status. An in absentia order also makes the person inadmissible for five years if they later try to enter the country.
Grounds to Rescind
An in absentia order can be rescinded through a motion to reopen on three grounds:
- Failure to appear due to exceptional circumstances such as serious illness or domestic violence, filed within 180 days of the order.
- Lack of proper notice, which can be raised at any time.
- Being in federal or state custody through no fault of the noncitizen, also with no time limit.
Campos-Chaves v. Garland (2024)
After Pereira and Niz-Chavez, noncitizens who received defective NTAs argued they had never received proper notice and could rescind their in absentia orders on that basis. Several circuits agreed; the Eleventh Circuit did not. The Supreme Court resolved the split in Campos-Chaves v. Garland, a 5-4 decision issued in June 2024. Writing for the majority, Justice Alito held that a defective initial NTA does not entitle a noncitizen to rescind an in absentia order if they later received a hearing notice under INA 239(a)(2) that specified the correct time and place for the hearing they missed. The statute allows rescission where the person did not receive notice “under paragraph (1) or (2)” of INA 239(a), and the majority read “or” to mean that notice under either provision is enough. Justice Jackson dissented, joined by Justices Sotomayor, Kagan, and Gorsuch.
The practical upshot: a defective NTA still matters for the stop-time rule under Pereira and Niz-Chavez, but it will not by itself support rescinding an in absentia order if a valid hearing notice for the missed hearing was later served.
Sensitive Locations and VAWA Confidentiality
INA 239(e) applies when DHS initiates removal proceedings at certain sensitive locations. The NTA must include a signed certification that the officer complied with the confidentiality provisions of 8 U.S.C. § 1367, which restrict disclosure of information about victims of domestic violence, sexual assault, trafficking, and stalking.
The covered locations include domestic violence shelters, rape crisis centers, supervised visitation centers, family justice centers, victim services providers, and courthouses where the person is appearing in connection with a protection order, a child custody case, or a civil or criminal matter related to domestic violence, sexual assault, trafficking, or stalking. Before issuing an NTA in one of these settings, a DHS officer must independently verify the person’s removability rather than rely on information from a prohibited source. A DHS employee who knowingly makes a false certification faces disciplinary action and a civil penalty of up to $5,000 per violation. If the certification is missing, advocates may move to strike the NTA and seek termination of proceedings.
Canceling an NTA Before Filing
Under 8 C.F.R. § 239.2, an NTA can be canceled before it is filed with the immigration court if an authorized officer determines that grounds exist. Those grounds include the person turning out to be a U.S. national, not being deportable or inadmissible, being deceased, being no longer in the United States, or the NTA having been “improvidently issued.” Later changes in circumstances that make continued prosecution no longer in the government’s interest can also justify cancellation. Once the case is filed and the immigration judge has jurisdiction, the government must move for dismissal on the same grounds; the judge or the BIA can also terminate proceedings. Cancellation or termination automatically cancels any outstanding arrest warrant tied to the case.
Two Provisions That Do Not Create Individual Rights
INA 239(d) tells the Attorney General to start removal proceedings “as expeditiously as possible” for any noncitizen convicted of a deportable offense. The statute expressly says this creates no substantive or procedural right enforceable against the government. It is a policy directive for the executive branch, not something a noncitizen or a third party can sue over.
A 2019 amendment through the National Defense Authorization Act (Pub. L. 116-92) requires immigration officers to consider evidence of U.S. military service when deciding whether to issue an NTA, an administrative removal order, a reinstatement of a prior removal order, or when executing a final removal order. This is a factor in prosecutorial discretion, not an exemption from removal for veterans or service members.