The Notice to Appear After Bermudez-Cota: What an NTA Must Contain to Vest Jurisdiction

What changed

On August 31, 2018, the Board of Immigration Appeals decided Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), and answered a question that had roiled immigration courts since the Supreme Court’s June 21, 2018 decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018): does a Notice to Appear that omits the time and place of the initial hearing strip the immigration judge of jurisdiction over the case?

The BIA’s answer was no. Reading INA § 239(a)(1) together with 8 C.F.R. § 1003.13, § 1003.14, and § 1003.15, the Board held that a Notice to Appear which does not specify the time and place of the initial removal hearing still vests jurisdiction in the immigration court so long as a subsequent notice of hearing specifying that information is later served on the respondent. The decision distinguished Pereira as a narrow, stop-time decision keyed to the cancellation-of-removal statute at INA § 240A(d)(1) — not a wholesale jurisdictional ruling about charging documents.

Bermudez-Cota functions in practice as the BIA’s containment doctrine. Pereira had held that a putative NTA missing time-and-place information was not a notice to appear “under section 239(a)” for purposes of triggering the stop-time rule. The implication argued by respondents — that without a valid NTA the proceeding itself was a nullity — would have voided tens of thousands of pending cases. Bermudez-Cota foreclosed that argument inside EOIR while preserving the narrower stop-time argument later vindicated by the Supreme Court in Niz-Chavez v. Garland, 593 U.S. 155 (2021), which held that a single document containing all the § 239(a)(1) information is required to trigger the stop-time rule.

Why it matters

For removal-defense counsel, three years of post-Pereira litigation collapsed into a clean operational rule: jurisdiction survives the two-step notice, but the stop-time clock does not. That asymmetry is the practice point.

First, the NTA must still satisfy the other elements of INA § 239(a)(1). That means the nature of the proceedings, the legal authority for them, the acts or conduct alleged, the charge against the respondent, the statutory provisions allegedly violated, and notice that the respondent may secure counsel at no expense to the government. Failure to plead any of those elements is a defect that survives Bermudez-Cota — the BIA’s holding addresses the time-and-place omission specifically, not the rest of § 239(a)(1).

Second, the stop-time analysis is now governed entirely by Niz-Chavez. A single document containing all the § 239(a)(1) information — including time and place — is required to cut off the continuous-physical-presence clock for cancellation of removal. A two-step notice (defective NTA followed by a notice of hearing) will sustain jurisdiction under Bermudez-Cota but will not stop the clock under Niz-Chavez. A client who has been served a Pereira-defective NTA and a follow-up hearing notice is in proceedings, yet is still accruing time toward the 10-year non-LPR cancellation threshold under INA § 240A(b)(1)(A), or the 7-year continuous-residence threshold for LPR cancellation under § 240A(a)(2).

Third, the circuits have largely accommodated Bermudez-Cota’s jurisdictional holding while preserving the Niz-Chavez stop-time holding. See Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019); Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019); Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018). The circuit landscape is settled enough that a freestanding jurisdictional motion to terminate based on Pereira will not survive, but the stop-time argument remains live and outcome-determinative in cancellation cases.

Way forward

The post-Pereira, post-Niz-Chavez NTA checklist:

1. Read the NTA against INA § 239(a)(1) line by line. Confirm the document contains the nature of proceedings, legal authority, factual allegations, charges, statutory citations, and right-to-counsel notice. Defects on these elements are still litigable.

2. If time and place are missing from the NTA, do not waste a jurisdictional motion on Pereira/Bermudez-Cota alone — the BIA and most circuits will deny it. Instead, calendar the date the defective NTA was served and the date the notice of hearing was later served. Those dates control the Niz-Chavez stop-time analysis.

3. Recalculate continuous physical presence from entry through the date a compliant single-document NTA was served, not the date of the defective NTA. For non-LPR cancellation under INA § 240A(b)(1), this recalculation often carries a client over the 10-year threshold who would otherwise be short.

4. Preserve the issue for appeal even if denied. The Supreme Court has revisited NTA-content questions twice in five years; the law is not as stable as the BIA’s containment effort suggests.

5. Cross-check the NTA against the certified record. Defects in service under 8 C.F.R. § 1003.13, charging-document amendments under 8 C.F.R. § 1003.30, and missing or unsigned NTAs all surface in the record and create independent grounds for termination.

6. Consult the EOIR Policy Manual, Part II, Chapter 4 (Hearings before Immigration Judges) and Chapter 5 (Motions before Immigration Judges) for current EOIR practice on NTA defects, amendments, and motions to terminate.

7. For clients facing the stop-time problem, consider whether voluntary departure under INA § 240B or administrative closure under Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021), is a better posture than litigating to a final order.

Disclaimer

This article is general information about U.S. immigration law and procedure, not legal advice. Immigration consequences turn on the specific facts of each case and on controlling circuit law. Anyone facing removal proceedings should consult a licensed immigration attorney or a DOJ-recognized representative. Verify against the BIA precedent decisions in Volume 27 of the I&N Decisions and the underlying Supreme Court opinions before relying on any specific procedural rule.