After the Supreme Court’s decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), the Fifth Circuit extended its reasoning in Rodriguez v. Garland, 15 F. 4th 351 (5th Cir. 2021), reh’g denied, 31 F. 4th 935 (5th Cir. 2022), holding that a noncitizen ordered removed in absentia for failing to appear at removal proceedings was eligible to rescind that order where the noncitizen’s putative notice to appear (NTA) did not contain the time and place of their proceedings and they had relocated before a notice of hearing (NOH) with that information was mailed to them.

This precedent is of special note to New Orleans-based practitioners given that a recent scholarly analysis ranked the New Orleans Immigration Court third among immigration courts for in absentia orders as a percentage of initial case completions. See Ingrid Eagly and Steven Shafer, “Measuring In Absentia Removal in Immigration Court”, 168 U. Penn. L. Rev. 817, 868 (2020). Moreover, all but one of the top five such courts are located in the Fifth Circuit, and all but one of the top ten are located in the south. See id.

However, the Fifth Circuit has published several decisions since deciding Rodriguez declining to extend its holding. For example, in a line of cases beginning with Spagnol-Bastos v. Garland, 19 F. 4th 802 (5th Cir. 2021), and continuing this month in Nivelo-Cardenas v. Garland, ___ F.4th ____ (5th Cir. 2023), it has held that the absence of time-and-place information in a putative NTA does not make a noncitizen eligible to rescind an in absentia order if the noncitizen gives the government a faulty address, or no address, to which they can be mailed an NOH. Meanwhile, in Campos-Chaves v. Garland, 43 F.4th 447 (5th Cir. 2022), reh’g denied, 54 F.4th 314 (5th Cir. 2022), it held that that the absence of time-and-place information in a putative NTA does not make a noncitizen eligible to rescind an in absentia order if the noncitizen does not dispute receiving a NOH with that information. In fact, none of the decisions published by the Fifth Circuit citing Rodriguez have granted a noncitizen’s petition for review.

Possibly, some or all of the Fifth Circuit’s precedent limiting the scope of Rodriguez will be overturned if the Supreme Court grants certiorari in one of the several petitions pending before it – including in Campos-Chavez –involving the circumstances under which the lack of time-and-place information in a putative NTA makes a noncitizen eligible for recission. But, to the author’s knowledge, the only circuits to publish decisions upholding such claims have likewise done so where noncitizens did not receive later NOHs with that information. See Singh v. Garland, 24 F.4th 1315 (9th Cir. 2022), reh’g denied, 51 F.4th 371 (9th Cir. 2022); Laparra-Deleon v. Garland, 52 F.4th 514 (1st Cir. 2022); see also Dacostagomez-Aguilar v. U.S. Att'y Gen., 40 F.4th 1312 (11th Cir. 2022) (holding that noncitizen was not eligible to rescind order despite never receiving NOH at all), cert. dismissed sub nom. Dacostagomez-Aguilar v. Garland, 143 S. Ct. 1102 (2023). So, it is far from clear whether or when the Supreme Court will take up this issue and, if it does, whether it will rule in noncitizens’ favor.

An additional claim for Fifth Circuit practitioners in New Orleans to consider in challenging the sufficiency of NTAs, and their resulting in absentia orders, is the absence of the “consequences under section 240(b)(5)” of failures to appear. Just like the time-and-place requirements, the consequences of failure to appear at removal proceedings must be included in an NTA pursuant to INA § 239(a)(1)(G). Further, just as the time-and-place requirements had long been lacking in NTAs, the consequences of failure to appear are not listed on the notices, despite the statutory prescription.

In addition to the rationale set forth by Niz-Chavez, this conclusion is also supported by the origins of the INA’s notice and failure to appear provisions in a Government Accountability Office (“GAO”) report criticizing the INA for the lack of “such adverse consequences as loss of appeal rights” for failing to appear, and the fact that the government had previously published similar warnings in the NTA’s predecessor, the Order to Show Cause (“OSC”). The warnings of failure to appear have been omitted from all forms the government has used since then, including NOHs, and thus it applies to a much larger category of noncitizens than arguments for extending Rodriguez do. This argument is fleshed out by the author in a recent article in the AILA Law Journal. See Christopher D. Boom, Taking the “Consequences Under Section 240(b)(5)” of Failing to Appear at Removal Proceedings Seriously: The Immigration and Nationality Act’s Lost Appellate Rights Warnings, 5 AILA L.J. 93 (2023), available at http://bit.ly/3ClURLo.

Caption: Excerpt of General Accounting Office, GAO/GGD-90-18, Immigration Control: Deporting and Excluding Aliens from the United States 31 (1989), criticizing the INA’s lack of consequences for failure to appear at deportation proceedings. Available at https://www.gao.gov/assets/ggd-90-18.pdf

Caption: Excerpt of Form I-221, Order to Show Cause and Notice to Appear (Rev. 6/12/92), showing inclusion of warnings for failure to appear at deportation proceedings. Available at U.S. Department of Justice, Executive Office for Immigration Review, Office of the Chief Immigration Judge, Uniform Docketing System Manual, at X-124 (2013), available at https://www.justice.gov/sites/default/files/eoir/ legacy/2014/04/07/DocketManual_12_2013.pdf

About the Author...

Christopher D. Boom
JD, LLM, PhD

Written on behalf of the Immigration Law Committee.