LOPEZ-TICAS

Cite as 29 I&N Dec. 90 (BIA 2025) Interim Decision #4100

Matter of Wendi Del Carmen LOPEZ-TICAS, Respondent

Decided May 29, 2025

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

The lack of time and place information on the notice to appear does not render untrue or

incorrect a respondent’s admission to the factual allegations or invalidate the charges of

removability in the notice to appear and therefore is not a proper basis for granting a

respondent’s motion to withdraw pleadings.

FOR THE RESPONDENT: Matthew L. Benson, Esquire, Cincinnati, Ohio

FOR THE DEPARTMENT OF HOMELAND SECURITY: Colleen A. Peppard, Assistant

Chief Counsel

BEFORE: Board Panel: MANN, MONTANTE, and BAIRD, Appellate Immigration

Judges.

MONTANTE, Appellate Immigration Judge:

This case was last before the Board on October 28, 2022, when we

sustained the Department of Homeland Security’s (“DHS”) appeal and

concluded that the respondent forfeited her objection to the noncompliant

notice to appear because she did not raise it before the close of pleadings.

On March 24, 2023, the Immigration Judge granted the respondent’s motion

to withdraw her prior pleadings to the notice to appear and her motion to

terminate proceedings. DHS appealed and the respondent filed a brief in

opposition to the appeal. Because we conclude that the Immigration Judge

erred in allowing the respondent to withdraw her pleadings, the appeal will

be sustained, the proceedings will be reinstated, and the record will be

remanded for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

On February 13, 2018, DHS served the respondent, a native and citizen

of El Salvador, with a notice to appear that did not provide the time and date

of the initial hearing before the Immigration Judge. The respondent, through

counsel, entered oral pleadings on November 5, 2019, admitting the factual

allegations and conceding removability. On October 29, 2021, the

respondent filed a motion to terminate proceedings due to defects in the

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notice to appear. The Immigration Judge granted the motion on

November 12, 2021, and DHS appealed.

On October 28, 2022, the Board sustained DHS’ appeal, concluding that

the respondent forfeited her objection to the noncompliant notice to appear

under Matter of Fernandes, 28 I&N Dec. 605, 610–11 (BIA 2022), because

the objection was not raised before the close of pleadings. The Board also

concluded that the Immigration Judge erred in finding that Niz-Chavez v.

Garland, 593 U.S. 155 (2021), represented a change in law that warranted

termination of the proceedings. The Board vacated the Immigration Judge’s

decision, reinstated the proceedings, and remanded the record to the

Immigration Court for further proceedings.

On remand, the respondent filed a motion to withdraw pleadings and a

renewed motion to terminate proceedings. In a decision dated March 24,

2023, the Immigration Judge found that the respondent demonstrated

egregious circumstances warranting the withdrawal of her pleadings. The

Immigration Judge then found, based on the withdrawal of the pleadings, that

the respondent’s claim-processing rule objection to the missing date and time

of the hearing on the notice to appear was made before the close of pleadings

and therefore was timely under the standard set forth in Matter of Fernandes,

28 I&N Dec. at 610–11. Alternatively, the Immigration Judge found that the

holding in Matter of Fernandes, 28 I&N Dec. at 610–11, regarding the

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

applied retroactively. The Immigration Judge found that termination of

proceedings was the only viable remedy for the claim-processing rule

violation. DHS appeals from the Immigration Judge’s decision.

II. DISCUSSION

Respondents are bound by the concessions of their attorneys unless they

can show egregious circumstances. Hanna v. Holder, 740 F.3d 379, 387

(6th Cir. 2014). To establish egregious circumstances, a respondent must

show “that the factual admissions or concessions of [removability] were

untrue or incorrect.” Id. (alteration in original) (quoting Matter of Velasquez,

19 I&N Dec. 377, 383 (BIA 1986)). This assertion must be supported by

record evidence. Id. at 388. Once a respondent has met the threshold

requirement, two types of egregious circumstances justify relieving the

respondent of counsel’s prejudicial admission or concession. Id. An alien

will be relieved of concessions or admissions of counsel that are “the result

of unreasonable professional judgment,” or where “binding the alien to th[e]

admission would ‘produce[] an unjust result.’” Id. (second alteration in

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original) (quoting Matter of Velasquez, 19 I&N Dec. at 383). The latter

includes a circumstance “where the propriety of an admission or concession

has been undercut by an intervening change in law.” Id. (citation omitted).

The Immigration Judge determined that counsel’s concession of proper

service of the notice to appear was untrue or incorrect because the document

served was missing the required hearing information. The Immigration

Judge further concluded that the respondent established egregious

circumstances because the propriety of the concession was undercut by the

intervening change in law set forth in Niz-Chavez and Matter of Fernandes.

Whether the respondent has demonstrated egregious circumstances

warranting the withdrawal of her counsel’s pleadings is a legal question we

review de novo. See 8 C.F.R. § 1003.1(d)(3)(ii) (2025).

We conclude that the Immigration Judge erred in granting the

respondent’s motion to withdraw pleadings. The record reflects that the

respondent’s counsel did not expressly concede proper service of the notice

to appear; rather, counsel only admitted the factual allegations and conceded

removability. Thus, the Immigration Judge erred in finding the respondent’s

counsel made a concession that was untrue or incorrect and in granting the

respondent’s motion to withdraw pleadings on that basis.

Even if the respondent’s counsel had conceded proper service of the

notice to appear, the Immigration Judge erred in concluding that counsel’s

concession of proper service of the notice to appear was untrue or incorrect

and thus satisfied the threshold requirement for relieving the respondent of

counsel’s pleadings. See Hanna, 740 F.3d at 387. The Immigration Judge’s

legal analysis conflates a procedural pre-pleading concession regarding

service of the notice to appear with pleading to the factual allegations and

removability charge contained therein. A respondent “plead[s] to the notice

to appear by stating whether he or she admits or denies the factual allegations

and his or her removability under the charges contained” in the notice to

appear. 8 C.F.R. § 1240.10(c) (2025). In contrast, a concession of service

of the notice to appear is simply an acknowledgment that the notice was

properly served on the respondent; it is not a pleading.

Service of the respondent’s notice to appear was proper, regardless of

whether it contained the time and place information. The notice to appear

reflects that it was personally served on the respondent on February 13, 2018,

and the respondent does not allege that she did not receive the document. See

section 239(a)(1) of the Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1229(a)(1) (2018) (providing for personal service or service by mail);

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8 C.F.R. § 1239.1(b) (2025). That the notice to appear was missing the date

and time of the hearing does not render service of the document deficient.

The lack of time and place information on the notice to appear does not

render untrue or incorrect a respondent’s admission to the factual allegations

or invalidate the charges of removability in the notice to appear and

therefore is not a proper basis for granting a respondent’s motion to

withdraw pleadings. 1 While an Immigration Judge cannot simply ignore or

overlook DHS’ failure to include the required time or place information on a

notice to appear if the issue is timely raised by the respondent, the

Immigration Judge also cannot simply treat the notice to appear as never

having been served or filed. 2 See Matter of Fernandes, 28 I&N Dec. at 615

(“A noncompliant notice to appear is not equivalent to a lack of a notice to

appear altogether.”); see also Ramos Rafael v. Garland, 15 F.4th 797, 801

(6th Cir. 2021) (explaining under Niz-Chavez that a notice to appear

lacking the time and place of an initial removal hearing does not deprive

an Immigration Judge of jurisdiction over removal proceedings);

1

The respondent does not raise any allegations of ineffective assistance of counsel, and

ineffectiveness is not apparent on the face of the record. See Hanna, 740 F.3d at 387

(recognizing ineffective assistance as a basis for relieving an alien of counsel’s

admissions). The decision not to raise an objection to a defective notice to appear is often

a tactical choice. In Matter of Aguilar-Hernandez, 28 I&N Dec. 774, 779 (BIA 2023), we

recognized:

[I]t is a strategic decision by a respondent to raise (or not raise) an objection to a

defective notice to appear lacking the date and time of the initial hearing before the

Immigration Judge. By electing not to raise the objection, the respondent’s notice to

appear remains defective and the respondent will continue to accrue continuous

physical presence in the United States for the purposes of cancellation of removal.

Conversely, if after the respondent raises a timely objection, DHS remedies the

defective notice to appear, then the ‘stop-time’ rule prevents the respondent from

accruing additional physical presence for purposes of cancellation of removal.

(footnote omitted). See also Matter of Gawaran, 20 I&N Dec. 938, 942 (BIA 1995) (“[I]n

the absence of egregious circumstances, an alien is bound by the ‘reasonable tactical

actions’ of . . . counsel.” (quoting Matter of Velasquez, 19 I&N Dec. at 383 (BIA 1986))).

2

Allowing a respondent to withdraw prior pleadings would effectively permit the

respondent to hold an objection to a later point in proceedings, impacting DHS’ ability to

prosecute the proceedings to a conclusion. See Matter of R-T-P-, 28 I&N Dec. 828, 834

(BIA 2024) (“The purpose of claim-processing rules in general is ‘to promote the orderly

progress of litigation by requiring that the parties take certain procedural steps at specified

times.’” (quoting Matter of Fernandes, 28 I&N Dec. at 608)).

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Matter of Arambula Bravo, 28 I&N Dec. 388, 391–92 (BIA 2021), aff’d,

No. 21-826, 2024 WL 1299986 (9th Cir. 2024).

Here, the respondent received proper notice of the factual allegations and

charges of removability and had a fair opportunity to plead to the allegations

and charges contained in the notice to appear. Thus, there was no defect in

the pleadings which justified the Immigration Judge’s decision granting the

respondent’s motion to withdraw and amend the pleadings. Based on the

foregoing, the Immigration Judge erred in concluding that the respondent met

the threshold requirement of showing that the concession of proper service

of the notice to appear was untrue or incorrect and in granting the

respondent’s motion to withdraw pleadings.

Similarly, the Immigration Judge erred in granting the respondent’s

motion to terminate proceedings. The Immigration Judge found that because

he had granted the respondent’s motion to withdraw pleadings, the case was

now in a pre-pleading posture and the respondent’s objection to the notice to

appear was timely. However, because the Immigration Judge erred in

granting the respondent’s motion to withdraw her prior pleadings, the

Immigration Judge’s basis for finding the respondent’s objection timely is

improper.

In Matter of Fernandes, we held that the time and place requirement in

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

claim-processing rule, not a jurisdictional rule. 28 I&N Dec. at 608–09. We

further held 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. DHS argues on appeal that, under claim-processing principles,

the respondent’s objection to the missing time and date information in the

notice to appear was untimely. We agree. The record reflects that the

respondent did not raise any objection to the missing date and time in the

notice to appear until after pleadings were taken by the Immigration Judge. 3

Thus, as we indicated in our prior decision, the respondent forfeited the

objection to the missing information by not timely raising it before the close

of pleadings. See id. at 610–11.

We also disagree with the Immigration Judge’s alternative conclusion

that the respondent’s objection should be considered timely because the

holding in Matter of Fernandes regarding the timeliness of an objection to a

3

The respondent, through counsel, entered oral pleadings on November 5, 2019. The

respondent first filed a motion to terminate on October 29, 2021.

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noncompliant notice to appear was a change in law and should not be applied

retroactively. During the pendency of this appeal, the Board reached the

opposite conclusion in Matter of Larios-Gutierrez de Pablo and

Pablo-Larios, 28 I&N Dec. 868, 875 (BIA 2024), holding that the conclusion

in Matter of Fernandes “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 applies retroactively. The Board has also concluded

that Niz-Chavez does not represent a change in law that warrants terminating

proceedings. See Matter of Nchifor, 28 I&N Dec. 585, 589 (BIA 2022).

Thus, the Immigration Judge erred in terminating proceedings. We will

sustain DHS’ appeal, reinstate proceedings, and remand the record to the

Immigration Judge for further proceedings consistent with this decision.

ORDER: The appeal is sustained.

FURTHER ORDER: The Immigration Judge’s decision dated

March 24, 2023, is vacated, proceedings are reinstated, and the record is

remanded to the Immigration Court for further proceedings consistent with

this decision.

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