Defective Notices to Appear
A Notice to Appear that leaves out the time or place of the hearing is defective, and the defect matters for three things: the stop-time rule for cancellation of removal, rescission of some in absentia orders, and a timely motion to terminate. It does not do the one thing people hope. It does not deprive the immigration court of jurisdiction, and it does not end the case by itself.
Current as of September 2026. We re-check this page every quarter and after any rule change.
For years, DHS served Notices to Appear that said "to be determined" where the date and place of the hearing belonged, and then mailed a separate hearing notice later. The Supreme Court has now said three times what that practice means, and the Board has said twice what it does not mean. The order of the decisions matters, and so does the purpose for which the defect is being raised. The question is never simply "was the notice defective." It is "defective for what, and what did you do about it, and when."
The five decisions
Pereira v. Sessions, 585 U.S. 198 (2018)
A putative notice to appear that fails to designate the specific time or place of the removal proceedings is not a "notice to appear under section 239(a)," and so does not trigger the stop-time rule for cancellation of removal.
Niz-Chavez v. Garland, 593 U.S. 155 (2021)
The notice that stops time must be a single document containing all the information INA 239(a)(1) specifies. The government cannot cure a defective notice by mailing a second document later with the missing time and place.
Campos-Chaves v. Garland, 602 U.S. 447 (2024)
This is the limit. Where a person received a proper notice under INA 239(a)(2) for the hearing they actually missed, they cannot seek rescission of an in absentia removal order under INA 240(b)(5)(C)(ii) on the ground that the original notice was defective.
Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021)
Following Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), the Board held that a notice lacking the time and place still vests jurisdiction in the immigration court. Pereira and Niz-Chavez were about the stop-time rule, not about whether the court can hear the case.
Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022)
The time-and-place requirement is a claim-processing rule. An objection must be raised before the close of pleadings or it is generally forfeited, and once it is raised the judge may permit DHS to remedy the defect.
What the five add up to
The Supreme Court decided what the statute means. The Board decided what happens in the courtroom. A defective notice does not stop the clock, and no later document can make it stop the clock. But the case goes forward, and the only way to get anything else out of the defect is to object before you plead.
The three consequences
| Purpose | What the defect does | The limit |
|---|---|---|
| Stop-time rule for cancellation | The clock on continuous presence or residence keeps running after service | An offense referred to in INA 212(a)(2) still stops time on its own |
| In absentia rescission | May support a motion to rescind for lack of notice, filed at any time, with an automatic stay | Not where a proper notice of the missed hearing was received, under Campos-Chaves |
| Termination | A timely objection supports a motion to terminate | Forfeited if not raised before pleadings close, and DHS may be allowed to remedy |
One: the stop-time rule
Under INA 240A(d)(1), continuous physical presence or continuous residence ends on service of a notice to appear under INA 239(a), or when the person commits an offense referred to in INA 212(a)(2) that makes them inadmissible or removable, whichever comes first. A notice that omits the time or place is not a notice under 239(a), so it does not end the period. For a person seeking cancellation as a non-permanent resident, the ten years of physical presence keep accruing while the case is pending. For a permanent resident seeking LPR cancellation, the seven years of continuous residence do the same. People who were short of the requirement when served can reach it before the judge decides.
The limit is the second trigger. An offense stops time at commission under Matter of Perez, 22 I&N Dec. 689 (BIA 1999), whether or not the notice was defective. A person with a qualifying offense in the record gets nothing from Pereira on this point.
Two: rescission of an in absentia order
Under INA 240(b)(5)(C)(ii), an in absentia order may be rescinded on a motion filed at any time if the person did not receive notice in accordance with INA 239(a). Filing the motion stays removal automatically while it is pending. Before Campos-Chaves, people argued that a defective original notice meant they never received notice at all. After it, the argument works only where no proper hearing notice under 239(a)(2) was received for the hearing actually missed. If a hearing notice went to the address you gave and you did not appear, the defect in the original notice does not reopen the case. If no hearing notice reached you, it still can. See in absentia orders.
Three: termination
Under Fernandes, a timely objection lets the judge terminate proceedings or, more often in practice, permit DHS to remedy the defect. Termination is discussed in full on motions to terminate, and the 2024 regulation at 8 C.F.R. 1003.18(d) now sets out when a judge must and may terminate. Even where the result is a remedy rather than an end to the case, the objection fixes the record on what the original notice said, preserves the issue for the Board, and protects the stop-time position.
What the defect does not do
It does not strip the court of jurisdiction. Under 8 C.F.R. 1003.14(a), jurisdiction vests when the charging document is filed with the immigration court, and under Arambula-Bravo and Bermudez-Cota a notice lacking the time and place is still a charging document for that purpose. A motion arguing that the court never had jurisdiction will be denied. Worse, because the argument was framed as jurisdictional and not as a claim-processing objection, it may not have preserved the objection that could have succeeded.
It does not, by itself, cancel a removal order that has already been entered. A person with a final order and a defective notice needs a motion to reopen or rescind on a ground the law recognizes, and the defect is one input into that motion, not the motion.
It does not change the burden of proof, the charges, or the relief you are eligible for. It changes the dates, and sometimes it ends the case.
Object before pleadings close
Under Matter of Fernandes, an objection to a missing time or place is generally forfeited if it is not raised before the close of pleadings. The objection is made at the first master calendar hearing, in writing, before you admit or deny any allegation. It says that the notice omitted the time or place, that it is therefore not a notice to appear under INA 239(a) under Pereira and Niz-Chavez, that proceedings should be terminated, and that you object to any remedy. If you have already pleaded, ask a lawyer whether anything remains; the answer is often no.
How to tell whether your notice is defective
- Look at item (G). The statute requires the time and place. A notice that says "to be determined," "TBD," or leaves the field blank omits them. A notice with a date but no place, or a place but no time, omits one of them.
- A real date that was later changed is not a defect. Hearings are rescheduled by hearing notice under INA 239(a)(2). A notice that stated a date and place when served did its job even if the date moved.
- Check the date of service. The stop-time question is whether anything stopped the clock on that date, not whether the case has a date now.
- Check whether you have pleaded. If a judge has already taken your admissions and denials, the termination objection is generally gone. The stop-time argument is not; it is raised in the cancellation application.
Where this fits in the case
The defect is checked in the first week, before the first hearing, as part of reading the Notice to Appear against the statute. It is raised at the master calendar before pleadings. It is argued again, for stop-time purposes, in any cancellation application. And it is examined a third time, against Campos-Chaves, if a hearing was ever missed. How the whole case runs is on removal proceedings.
Read next: the Notice to Appear, cancellation of removal, in absentia orders, or motions to terminate.
Common questions
Is my Notice to Appear void if it has no hearing date?
No. The Board held in Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021), and Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), that a notice lacking the time and place still vests jurisdiction in the immigration court. The defect matters for specific purposes: the stop-time rule for cancellation of removal, rescission of some in absentia orders, and a timely request for termination. It does not make the case disappear on its own.
Can the government fix the notice by sending a hearing notice later?
Not for the stop-time rule. Niz-Chavez v. Garland, 593 U.S. 155 (2021), holds that the notice that stops time must be a single document containing everything INA 239(a)(1) requires, and a later hearing notice with the date does not complete it. For other purposes, Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022), allows the judge to permit DHS to remedy the defect once a timely objection is raised.
When do I have to object?
Before pleadings close. Under Matter of Fernandes, the time-and-place requirement is a claim-processing rule, and an objection not raised before the close of pleadings is generally forfeited. In practice the objection is made at the first master calendar hearing, in writing, before admitting or denying anything.
I was ordered removed for missing a hearing and my original notice had no date. Can I reopen?
It depends on what notice you received for the hearing you missed. Under Campos-Chaves v. Garland, 602 U.S. 447 (2024), if you received a proper hearing notice under INA 239(a)(2) for the hearing actually missed, the defective original notice does not support rescission under INA 240(b)(5)(C)(ii). If you never received notice of that hearing, a motion to rescind for lack of notice may be filed at any time and stays removal automatically while it is pending.
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