LARIOS-GUTIERREZ DE PABLO

Cite as 28 I&N Dec. 868 (BIA 2024) Interim Decision #4082

Matter of Elvira LARIOS-GUTIERREZ DE PABLO and Juan

PABLO-LARIOS, Respondents

Decided November 19, 2024

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

The Board’s holding in Matter of Fernandes, 28 I&N Dec. 605, 610–11 (BIA 2022), that

an objection to a noncompliant notice to appear will generally be considered timely if

raised prior to the close of pleadings is not a change in law, and thus Matter of Fernandes

applies retroactively.

FOR THE RESPONDENTS: Paul Shonk, Esquire, Fairfield, Ohio

FOR THE DEPARTMENT OF HOMELAND SECURITY: Norman J. Schroth, Office of

Chief Counsel

BEFORE: Board Panel: WETMORE, Chief Appellate Immigration Judge; MALPHRUS,

Deputy Chief Appellate Immigration Judge; BAIRD, Appellate Immigration Judge.

MALPHRUS, Deputy Chief Appellate Immigration Judge:

In a decision dated October 24, 2022, the Immigration Judge granted the

respondents’ motion to terminate their removal proceedings based on a

noncompliant notice to appear. The Department of Homeland Security

(“DHS”) has appealed, arguing that the Immigration Judge erred in not

applying Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022). The appeal

will be sustained, and the record will be remanded.

I. FACTUAL AND PROCEDURAL HISTORY

The respondents, 1 natives and citizens of Guatemala, were served with

notices to appear by DHS on December 17, 2016. The notices to appear did

not include the place, date, and time of their initial hearing before the

Immigration Judge. The Cleveland Immigration Court issued hearing

notices, setting the initial hearing for August 2, 2017, at 1 p.m. At the initial

hearing, the respondents appeared with counsel, conceded service of the

notices to appear, admitted to the factual allegations, and conceded their

removability as charged. They did not object to the sufficiency of their

notices to appear. The Immigration Judge sustained the charge of

1

The respondents are an adult female, who is the lead respondent, and her minor child.

868

Cite as 28 I&N Dec. 868 (BIA 2024) Interim Decision #4082

removability and continued the proceedings for the respondents to file

applications for relief from removal, which they did on December 18, 2017.

On October 11, 2022, nearly 6 years after receiving their notices to

appear, and more than 5 years after conceding proper service and pleading to

the charges, the respondents filed a motion to terminate these proceedings.

They argued that termination was warranted because their notices to appear

did not contain the date and time for their initial hearing, as required by

section 239(a)(1)(G)(i) of the Immigration and Nationality Act (“INA”),

8 U.S.C. § 1229(a)(1)(G)(i) (2018). 2 They acknowledged our holding in

Matter of Fernandes, 28 I&N Dec. at 609, regarding the timeliness of

objections to noncompliant notices to appear but argued that they had not

forfeited the enforcement of the claim-processing rule because the rule did

not exist at the time of their pleadings. DHS opposed the motion.

The Immigration Judge found that DHS had violated a claim-processing

rule, namely, section 239(a)(1)(G) of the INA, 8 U.S.C. § 1229(a)(1)(G). He

further determined that our holding in Matter of Fernandes regarding the

timeliness of an objection to a noncompliant notice to appear could not be

applied retroactively. He concluded that the respondents’ objection to their

noncompliant notices to appear was timely because it was made shortly after

the Supreme Court of the United States’ decision in Niz-Chavez v. Garland,

593 U.S. 155 (2021), which he found constituted a change in law. He then

terminated these proceedings.

II. DISCUSSION

A. Legal Background

Section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), provides that a

“written notice” in the form of “a ‘notice to appear’[] shall be given . . . to

the alien” in removal proceedings, specifying, among other things, “[t]he

time and place at which the proceedings will be held.” In Pereira v. Sessions,

585 U.S. 198, 208–09 (2018), and Niz-Chavez v. Garland, 593 U.S. 155,

160–61, the Supreme Court held that a notice to appear that does not comply

with this requirement would not trigger the so-called “stop-time” rule under

section 240A(d)(1)(A) of the INA, 8 U.S.C. § 1229b(d)(1)(A) (2018). In

both cases, the Supreme Court relied on what it determined was the plain

statutory language of sections 239(a) and 240A(d)(1)(A) of the INA,

8 U.S.C. §§ 1229(a), 1229b(d)(1)(A), language which had been in the statute

2

Section 239(a)(1)(G)(i) of the INA, 8 U.S.C. § 1229(a)(1)(G)(i), requires that a notice

to appear specify the “time and place at which the proceedings will be held.” (Emphasis

added.) We construe “time” as including the date of the hearing, and we will use “date and

time” interchangeably with “time” in this decision. The respondents did not object to the

lack of the place at which the proceedings will be held.

869

Cite as 28 I&N Dec. 868 (BIA 2024) Interim Decision #4082

for decades. See Niz-Chavez, 593 U.S. at 157–59, 171; Pereira, 585 U.S. at

202–03, 209; see also Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, Div. C, § 304,

110 Stat. 3009-546, 3009-588, 3009-595 (codified at 8 U.S.C. §§ 1229,

1229b).

Following the Supreme Court’s decisions in Pereira and Niz-Chavez, the

Board—consistent with all the courts of appeals that had addressed the

matter—held that section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), is not

a jurisdictional requirement and that noncompliant notices to appear do not

affect the Immigration Court’s jurisdiction over the removal proceedings.

Matter of Arambula-Bravo, 28 I&N Dec. 388, 389–92 (BIA 2021), aff’d,

No. 21-826, 2024 WL 1299986 (9th Cir. Mar. 27, 2024). We reaffirmed that

holding in Matter of Fernandes, 28 I&N Dec. at 607.

At the same time, following Pereira, the courts of appeals recognized that

the time and place requirement in a notice to appear is a claim-processing

rule. See United States v. Bastide-Hernandez, 39 F.4th 1187, 191–93

(9th Cir. 2022); Chavez-Chilel v. Att’y Gen. U.S., 20 F.4th 138, 143–44, 144

n.5 (3d Cir. 2021); Martinez-Perez v. Barr, 947 F.3d 1273, 1278–79 (10th

Cir. 2020); Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1157 (11th Cir.

2019); Pierre-Paul v. Barr, 930 F.3d 684, 691–93 (5th Cir. 2019), abrogated

in part on other grounds by Niz-Chavez, 593 U.S. 155; United States v.

Cortez, 930 F.3d 350, 359–62 (4th Cir. 2019); Ortiz-Santiago v. Barr,

924 F.3d 956, 963 (7th Cir. 2019). “[C]laim-processing rules” are those “that

seek to promote the orderly progress of litigation by requiring that the parties

take certain procedural steps at specified times.” Henderson ex rel.

Henderson v. Shinseki, 562 U.S. 428, 435 (2011). Claim-processing rules do

not implicate the jurisdiction of a court, and they are subject to waiver and

forfeiture unless timely raised. See Manrique v. United States, 581 U.S. 116,

121 (2017).

Published decisions of the Board also recognized the time and place

requirement in a notice to appear as a claim-processing rule. See Matter of

Fernandes, 28 I&N Dec. at 608–09; Matter of Nchifor, 28 I&N Dec. 585,

586–88, 586 n.4 (BIA 2022) (interpreting the regulatory requirements for a

notice to appear); Matter of Rosales Vargas and Rosales Rosales, 27 I&N

Dec 745, 749, 751–52 (BIA 2020) (same). In Matter of Fernandes,

consistent with decisions of courts of appeals that addressed this issue, we

concluded that section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), is a

claim-processing rule. 28 I&N Dec. at 608. We also held, consistent with

Supreme Court and courts of appeals case law addressing claim-processing

rules, that “if a respondent does not raise an objection to a defect in the notice

to appear in a timely manner, such an objection is waived or forfeited.” Id.

at 609. We determined that a claim-processing rule objection “will

generally . . . be timely if it is raised prior to the closing of pleadings before

870

Cite as 28 I&N Dec. 868 (BIA 2024) Interim Decision #4082

the Immigration Judge.” Id. 610–11. In doing so, we characterized this as

“a useful guideline regarding . . . timeliness.” Id. at 610.

B. Retroactivity

As a general matter, agencies and courts may announce new rules through

adjudication and apply them retroactively. See SEC v. Chenery Corp.,

332 U.S. 194, 203 (1947). Judicial or administrative decisions, unlike

statutes, are generally retroactive in application, since they simply “say what

the law is.” Harper v. Va. Dep’t of Tax’n, 509 U.S. 86, 107 (1993) (Scalia, J.,

concurring) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803)); see also Reyes v. Garland, 11 F.4th 985, 990–91 (9th Cir. 2021)

(holding that when agency decisions apply preexisting rules to new factual

circumstances they are judicial in nature and apply retroactively).

However, there are times when agency decisions announce new rules that

change the law in a substantial way, and it may be unfair to apply the new

rule retroactively. See, e.g., Reyes, 11 F.4th at 996–97 (holding that it would

be unfair to apply the Board’s decision regarding a crime involving moral

turpitude retroactively). Thus, under those circumstances, the agency

decision may only be applied prospectively.

In Matter of Cordero-Garcia, 27 I&N Dec. 652, 655–57 (BIA 2019), we

adopted a two-part approach for determining whether a published Board

decision applies retroactively. First, we consider whether our holding is a

change in law for purposes of retroactivity. See id. at 656–57. If it is, we

then apply the multi-factor test first set forth in Retail, Wholesale and

Department Store Union v. NLRB, 466 F.3d 380, 390 (D.C. Cir. 1972), to

determine whether it would be unfair to apply the new rule retroactively. See

Matter of Cordero-Garcia, 27 I&N Dec. at 657.

Published decisions of the Board or the courts are generally intended to

provide guidance for parties in litigation and lower tribunals by addressing

an issue or principle where guidance may be needed. Published cases may

clarify the law by providing guidance where there was none before or where

there were conflicts or uncertainties. A published Board decision that

interprets a previously unclear statute, for example, does not constitute a

change in law for retroactivity purposes. See Olivas-Motta v. Whitaker,

910 F.3d 1271, 1279 (9th Cir. 2018); Matter of Cordero-Garcia, 27 I&N

Dec. at 656. Treating precedents as only prospective runs contrary to the

principle that judicial or administrative decisions simply say what the law is

and generally are retroactive in application. See Reyes, 11 F.4th at 990–91;

see also Chenery Corp., 332 U.S. at 203 (“Every case of first impression has

a retroactive effect, whether the new principle is announced by a court or by

an administrative agency”).

871

Cite as 28 I&N Dec. 868 (BIA 2024) Interim Decision #4082

The test for whether a published decision constitutes a change in law, and

thus triggers a retroactivity analysis, is whether the Board “‘consciously

overrules or otherwise alters its own rule or regulation,’ or ‘expressly

considers and openly departs from a circuit court decision.’” Matter of

Cordero-Garcia, 27 I&N Dec. at 656 (quoting Olivas-Motta, 910 F.3d

at 1277). Whether a decision has retroactive effect is a question of law we

review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2024).

C. Application of the “Change in Law” Test

Matter of Fernandes does not constitute a change in law requiring a

retroactivity analysis. As an initial matter, our holding in Matter of

Fernandes that the time and place requirement in the notice to appear is a

claim-processing rule was consistent with decisions by courts of appeals that

previously addressed this issue, as well as the Board’s prior decisions.

Likewise, our determination that an objection to a noncompliant notice to

appear is waived or forfeited if not timely raised is not a change in law

because it was based on prior Board, courts of appeals, and Supreme Court

precedents regarding claim-processing rules. 3 See Matter of Fernandes,

28 I&N Dec. at 609.

Turning to the timeliness issue, in Matter of Fernandes we provided a

guideline for determining when a claim-processing rule objection is timely.

Id. at 610–11. We observed that neither the statutory text nor the Supreme

Court’s jurisprudence addressing claim-processing rules in different contexts

provided specific guidance. Id. at 609. We further acknowledged that the

Board’s decision in Matter of Nchifor, 28 I&N Dec. at 589, which involved

an objection raised for the first time in a motion to reopen, had not previously

decided at what point an objection will be considered timely. Matter of

Fernandes, 28 I&N Dec. at 610.

Although we considered circuit court decisions that had addressed

timeliness, none of these decisions had definitely decided at what point in the

proceeding an objection must be made in order to be timely. See id. at

609–10, 609 n.3; see also Arreola-Ochoa v. Garland, 34 F.4th 603, 609

(7th Cir. 2022) (suggesting a range of factors to consider when determining

the timeliness of an objection); Pierre-Paul, 930 F.3d at 693 & n.6 (holding

that an objection to a noncompliant notice to appear raised for the first time

in a petition for review was untimely and noting that “an alien who fails to

object to the notice to appear and concedes his removability” waives the

3

In contrast, our holding that a respondent is not required to show prejudice arising from

the lack of date and time of the hearing in the notice to appear departed from the decisions

of some circuit courts. See Matter of Fernandes, 28 I&N Dec. at 612 n. 6. However, this

difference is not the focus of the Immigration Judge’s decision or the parties’ arguments in

this case and would not affect the retroactivity analysis.

872

Cite as 28 I&N Dec. 868 (BIA 2024) Interim Decision #4082

issue). 4 Thus, Matter of Fernandes, 28 I&N Dec. at 610–11, clarified the

law by resolving an issue about which there was no clear guidance. See

Chenery Corp., 332 U.S. at 203 (holding that an agency determination is not

impermissibly retroactive simply because it is deciding an issue of first

impression). 5

We are aware of no court decisions finding that our holding in Matter of

Fernandes constituted a change in law for retroactivity purposes. In fact,

since we issued our decision in Matter of Fernandes, the courts of appeals

have, without a change in law analysis, applied our guideline retroactively to

individuals who did not object to a noncompliant notice to appear prior to the

close of pleadings. Significantly, the United States Court of Appeals for the

Fifth Circuit in a recent published decision held that the Board did not err in

denying a motion to remand based on Matter of Fernandes “[b]ecause

Sustaita-Cordova failed to raise an objection to the [notice to appear] prior to

the close of pleadings before the IJ, [and thus] he forfeited any later claim-

processing challenge to the [notice to appear].” 6 Sustaita-Cordova v.

Garland, 120 F.4th 511, 519 (5th Cir. 2024).

Although not in the context of retroactivity, the Eighth Circuit in

Amador-Morales v. Garland, 94 F.4th 701, 703–04 (8th Cir. 2024), expressly

concluded that Matter of Fernandes was not an intervening change in law

that would justify reopening removal proceedings. The Eighth Circuit

concluded that “Fernandes followed prior BIA decisions” holding that the

time and place requirement for a notice to appear was a claim-processing

4

Although not discussed in Matter of Fernandes, the United States Court of Appeals for

the Seventh Circuit at the time had suggested that an objection to a noncompliant notice to

appear should be raised “at the outset of proceedings.” Avila De La Rosa v. Garland,

2 F.4th 685, 688 (7th Cir. 2021). The Sixth Circuit, in whose jurisdiction this case arises,

applied this standard and found in an unpublished decision issued prior to Matter of

Fernandes that an objection was untimely because the respondents “had conceded proper

service of the notices [to appear] and admitted the charges against them.” Kim v. Garland,

No. 21-3613, 2022 WL 390561, at *3 (6th Cir. Feb. 9, 2022).

5

Our guidance in Matter of Fernandes that an objection will generally be considered

timely if raised before the close of pleadings is consistent with procedural rules governing

general litigation in the Federal Courts. The Federal Rules of Civil Procedure require that

certain defenses be asserted in a responsive pleading or motion before pleading. See

Fed. R. Civ. P. 12(b).

6

The courts of appeals have also applied the timeliness guideline from Matter of

Fernandes in unpublished decisions, including one from the Sixth Circuit. See

Recendiz-Fernandez v. Garland, Nos. 22-605710, 23-60527, 2024 WL 4678884, at *4

(5th Cir. Nov. 5, 2024); Perez Garcia v. Garland, No. 23-152, 2024 WL 4212340, at *2

(9th Cir. Sept. 17, 2024); Alvarenga-Canales v. Garland, No. 22-3514, 2023 WL 3094545,

at *3 (6th Cir. Apr. 26, 2023) (“Application of Fernandes here simply demonstrates that

Alvarenga-Canales ‘waived or forfeited’ the possibility of BIA review of this notice

argument when she failed to raise it with the IJ.”).

873

Cite as 28 I&N Dec. 868 (BIA 2024) Interim Decision #4082

rule. Id. at 703–04. Additionally, the Eighth Circuit held that “Fernandes

was not an intervening change in the law that would excuse

[Amador-Morales’s] forfeiture of an objection to the [notice to appear]”). Id.

at 704.

Section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), is, and always has

been, a claim-processing rule. That the Board did not previously issue a

published decision addressing when a claim-processing rule objection will

be considered timely does not mean that such objections could have been

made at any time and considered timely. We did not have occasion to issue

a decision on the claim-processing rule aspect of section 239(a)(1) of the

INA, 8 U.S.C. § 1229(a)(1), or how it is to be applied in removal proceedings

until it became necessary and advisable in Matter of Fernandes.

The Immigration Judge relied on our previous decision in Matter of

Rosales Vargas and Rosales Rosales to conclude that the guidance on

timeliness in Matter of Fernandes constituted a change in law because it

altered the Board’s prior rule. Specifically, the Immigration Judge noted that

in Matter of Rosales Vargas and Rosales Rosales, the respondents did not

raise a challenge to the notices to appear until the day of the individual merits

hearing, and we concluded, in a single line at the end of our decision, that the

respondents’ objection was timely. 27 I&N Dec. at 746, 753.

However, the issue considered in Matter of Rosales Vargas and Rosales

Rosales was whether a notice to appear that does not include the location (in

addition to the time) of the hearing deprives the Immigration Court of subject

matter jurisdiction under the regulations. Id. at 747. We concluded that it

did not. Id. at 747, 753. In closing, we noted that the respondents in that

case timely challenged the deficiencies in their notices to appear, but there

was no apparent prejudice. Id. at 753. This observation regarding the

timeliness of the objection was made without discussion or analysis, and it

was neither part of the holding in that case nor necessary to the result. As

such, our brief mention of timeliness was dicta and did not establish a rule

from which Matter of Fernandes could have departed. See Seminole Tribe

of Fla. v. Florida, 517 U.S. 44, 67 (1996) (stating that courts are bound by

“those portions of [an] opinion necessary to th[e] result”). As Matter of

Rosales Vargas and Rosales Rosales did not establish a rule that an objection

to a noncompliant notice to appear could be made after the close of pleadings,

we did not “consciously overrule[] or otherwise alter[] [our] own rule or

regulation” in Matter of Fernandes. Matter of Cordero-Garcia, 27 I&N Dec.

at 656 (citation omitted).

We also disagree with the Immigration Judge to the extent he concludes

that our decision in Matter of Fernandes “openly depart[ed] from a circuit

court decision.” Id. The cases cited by the Immigration Judge as support for

his determination that prior to Matter of Fernandes, an objection was timely

if raised prior to a final decision on the merits do not involve immigration

874

Cite as 28 I&N Dec. 868 (BIA 2024) Interim Decision #4082

proceedings. See Kontrick v. Ryan, 540 U.S. 443, 458–60 (2004); Nat’l

Ecological Found. v. Alexander, 496 F.3d 466, 475–76 (6th Cir. 2007).

The respondents also submit that applying Matter of Fernandes

retroactively would be contrary to our rule that “retroactivity [of an agency

decision] must be balanced against the mischief of producing a result which

is contrary to statutory design or to legal and equitable principles.”

Matter of Cordero-Garcia, 27 I&N Dec. I&N Dec. at 655 (quoting Chenery

Corp., 332 U.S. at 203). The respondents contend that at the time pleadings

were entered, any objection to the missing date in the notices to appear would

have been futile, if not frivolous, under settled law, and therefore retroactive

application of Matter of Fernandes would be inequitable.

While the Supreme Court has held that a litigant’s failure to raise an issue

in a timely manner may be excused if the issue was “truly novel” and there

was “no reasonable basis in existing law” for raising the issue, Reed v. Ross,

468 U.S. 1 (1984), we are not persuaded that this issue qualifies as such. The

respondents could have, but did not, raise a timely objection to their

noncompliant notices to appear. See, e.g., Avila De La Rosa v. Garland,

2 F.4th 685, 686 (7th Cir. 2021) (“Cristian Avila de la Rosa received a

procedurally defective Notice to Appear for his immigration removal

proceedings, and (unlike many others) he made a timely objection to that

Notice.”). That the argument may have been unsuccessful at the time does

not excuse the lack of a timely objection to the notices to appear. See Bousley

v. United States, 523 U.S. 614, 622–23 (1998) (“[F]utility cannot constitute

cause [for failing to raise a procedural issue] if it means simply that a claim

was ‘unacceptable to that particular court at that particular time.’” (quoting

Engle v. Isaac, 456 U.S. 107 (1982))). The respondents’ decision not to

challenge DHS’ practice of issuing noncompliant notices to appear in their

own case is not a basis to conclude that retroactive application of Matter of

Fernandes would be inequitable.

Based on the above, we conclude that the Board’s holding in Matter of

Fernandes, 28 I&N Dec. at 610–11, that an objection to a noncompliant

notice to appear will generally be considered timely if raised prior to the close

of pleadings is not a change in law for purposes of retroactivity.

Accordingly, we need not apply the multi-factor retroactivity analysis

discussed in Matter of Cordero-Garcia, 27 I&N Dec. at 658, 466 F.2d at 390.

Matter of Fernandes applies retroactively.

D. Timeliness of the Claim-Processing Rule Objection

The Immigration Judge erred in concluding that the respondents’ motion

to terminate was timely because it was filed following the Supreme Court’s

decision in Niz-Chavez. First, as a legal matter, contrary to the Immigration

Judge’s decision and the respondents’ assertion on appeal, the Supreme

875

Cite as 28 I&N Dec. 868 (BIA 2024) Interim Decision #4082

Court’s decisions in Pereira and Niz-Chavez did not address the

claim-processing rule aspect of section 239(a)(1) of the INA, 8 U.S.C.

§ 1229(a)(1), did not create a claim-processing rule, and did not constitute a

“change in law” for claim-processing rules. The Supreme Court’s decisions

in Pereira, 585 U.S. at 202, and Niz-Chavez, 593 U.S. at 158–59, related to

the application of the stop-time rule under section 240A(d)(1)(A) of the INA,

8 U.S.C. § 1229b(d)(1)(A). They did not concern the Immigration Court’s

jurisdiction or the claim-processing rule at section 239(a)(1)(G)(i) of the

INA, 8 U.S.C. § 1229(a)(1)(G)(i), and did not affect the timeliness of the

claim-processing rule objection. See, e.g., Ramos Rafael v. Garland,

15 F.4th 797, 800–01 (6th Cir. 2021) (holding that “Pereira and Niz-Chavez

concern only the stop-time rule” and not jurisdiction).

While the Supreme Court’s decisions in Pereira and Niz-Chavez may

have resulted in arguments regarding jurisdiction and claim-processing rules,

the text of section 239(a)(1)(G)(i) of the INA, 8 U.S.C. § 1229(a)(1)(G)(i),

has remained unchanged and was plain on its face long before those decisions

were issued. See IIRIRA, § 304, 110 Stat. at 3009-587 to 3009-588 (enacting

section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1)). The only common link

between the claim-processing rule in this case and Matter of Fernandes and

the Supreme Court’s decisions in Pereira and Niz-Chavez is the

consideration of the plain statutory text of the INA.

Indeed, in Mejia-Padilla v. Garland, 2 F.4th 1026, 1033–34 (7th Cir.

2021), the Seventh Circuit rejected a similar argument that the Supreme

Court’s decision in Pereira excused the forfeiture of the objection to a

noncompliant notice to appear. The court noted that although Pereira had

not yet been decided and there was contrary precedent, the respondent could

have objected to the noncompliant notice to appear at the outset of the

proceedings based on the plain language of the statute, and the respondent

forfeited the objection by not raising it before the Immigration Judge. Id. at

1033–34.

Second, the respondents’ motion raising the claim-processing rule was

filed in October 2022, which was 18 months after the Supreme Court issued

its decision in Niz-Chavez. Even before the Supreme Court’s decision in

Niz-Chavez, circuit courts had discussed the claim-processing rule aspect of

section 239(a)(1)(G)(i) of the INA, 8 U.S.C. § 1229(a)(1)(G)(i). See, e.g.,

Ortiz-Santiago v. Barr, 924 F.3d 956, 964 (7th Cir. 2019). In fact, multiple

circuit courts have observed that arguments regarding defective notices to

appear were available based on the plain statutory language even before the

Supreme Court’s 2018 decision in Pereira. See Chavez-Chilel v. Att’y Gen.

U.S., 20 F.4th 138, 144 n.7 (3d Cir. 2021); Mejia-Padilla, 2 F.4th at 1034.

Thus, the respondents’ objection was untimely, and they waived the

opportunity to challenge this issue.

876

Cite as 28 I&N Dec. 868 (BIA 2024) Interim Decision #4082

Other arguments by the respondents do not persuade us to reach a

different conclusion. The respondents’ argument that in Matter of Chen,

28 I&N Dec. 676 (BIA 2023), we implicitly held that a respondent can object

to the missing information in the notice to appear years after being ordered

removed is without merit. Our decision in Matter of Chen, 28 I&N Dec. at

679, 681–82, involved a motion to reopen to apply for cancellation of

removal and the issue of whether continuous physical presence is terminated

by a final administrative decision. It did not involve an objection to the

claim-processing rule at section 239(a)(1)(G)(i) of the INA, 8 U.S.C.

§ 1229(a)(1)(G)(i), and the Board did not, implicitly or explicitly, hold that

a claim-processing rule objection can be made years after the final

administrative decision. 7

Finally, the respondents argue that Matter of Fernandes should not be

applied retroactively based on principles of fairness and due process.

However, as discussed above, neither the Supreme Court’s decision in

Niz-Chavez, nor our decision in Matter of Fernandes, constitute a change in

law with respect to the timeliness of the claim-processing rule objection at

issue here. See Matter of Cordero-Garcia, 27 I&N Dec. at 656. Thus, the

retroactive application of Matter of Fernandes is entirely consistent with

sound principles of fairness and due process.

III. CONCLUSION

Our guidance in Matter of Fernandes as to the timeliness of the

claim-processing rule objection to a noncompliant notice to appear applies

retroactively. The respondents did not object to the missing information in

their notices to appear before the close of pleadings and have not otherwise

demonstrated that their objection should be considered timely. Thus, they

have forfeited their objection. We will sustain DHS’ appeal, vacate the

Immigration Judge’s decision, and remand for further proceedings. 8

ORDER: DHS’ appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration

Court for further proceedings consistent with the foregoing order and for the

entry of a new decision.

7

If the respondents in Matter of Chen had raised a claim-processing rule objection to

their noncompliant notices to appear for the first time in their motion to reopen, the

objection would have been untimely under Matter of Nchifor, 28 I&N Dec. at 589.

8

In light of our decision, we need not consider the parties’ other contentions on appeal

regarding the missing time and date on the notices to appear. See INS v. Bagamasbad,

429 U.S. 24, 25 (1976) (per curiam) (“As a general rule courts and agencies are not required

to make findings on issues the decision of which is unnecessary to the results they reach.”).

877