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The BIA Confirms Double Standard in New NTA Decision

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In a new decision by the Board of Immigration Appeals (BIA), Matter of Herrera-Vazquez, BIA held that leaving portions empty on the Notice to Appear (NTA) did not render the document defective.

The NTA is the charging document that initiates removal proceedings. There are three main components to an NTA:

  1. The biographical information, which lists the individuals name, any known aliases, alien registration number, date of birth, etc.
  2. The Nature of Proceedings. There are three boxes on the NTA which classify the allegations (or charges) against the individual. One of the boxes should be checked so its clear what the government is charging the individual with.
    • You are an arriving alien
    • You are an alien present in the U.S. who has not been admitted or paroled
    • You have been admitted to the U.S. but are removal for the reasons stated below
  3. Factual Allegations. This will include the reasons why you are removable

In Matter of Herrera-Vazquez , the respondent was issued an NTA that did not have any of the three boxes checked. So the classification of the allegations was left blank, leaving the NTA defective – as argued by Herrera.

This is a crucial lapse by the government. Depending on which box is checked on the NTA, can determine an individuals eligibility for different forms of relief.

The BIA held that leaving the boxes unchecked was no big deal and did not render the NTA defective. Rather, the BIA reasoned that attorneys would be able to figure out which box should have been checked and could proceed with the respondent’s case as normal.

The attorneys argued that it would be harder to prepare their client’s cases without knowing which boxes were checked and that they should not be required to speculate which one should or could have been checked by the government.

This leaves a double standard in place. The government can continue to be careless in its document preparation, but individuals who are preparing applications and petitions must complete theirs without error or fear it will be rejected or denied – as commonly practiced by USCIS.

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