Lopez-Orellana

The Board of Immigration Appeals (BIA) in *Matter of Lopez-Orellana*, 29 I&N Dec. 533 (BIA 2026), clarified critical procedural aspects concerning noncompliant Notices to Appear (NTAs) in removal proceedings. The decision holds that an objection to a noncompliant NTA is the respondent's to raise and is forfeited if not timely presented. Furthermore, the BIA ruled that if an Immigration Judge (IJ) is satisfied that a non-appearing respondent is removable and received adequate notice of their scheduled hearing, the IJ should proceed *in absentia* rather than terminating the proceedings, even if the initial NTA was noncompliant. This ruling reinforces the distinction between NTA defects as claim-processing rules versus jurisdictional flaws, emphasizing respondent responsibility and the viability of *in absentia* orders under certain conditions.

The landscape of U.S. immigration law, particularly concerning removal proceedings, continues to be shaped by ongoing judicial interpretation of statutory notice requirements. A recent and significant development comes from the Board of Immigration Appeals (BIA) in *Matter of Elmer Omar Lopez-Orellana*, 29 I&N Dec. 533 (BIA 2026), decided on March 27, 2026. This decision provides crucial clarity on the procedural implications of a “noncompliant notice to appear” (NTA), a recurring issue that has generated extensive litigation, including at the Supreme Court level.

*Lopez-Orellana* addresses two pivotal questions: who bears the responsibility for raising objections to a defective NTA, and what action an Immigration Judge (IJ) should take when a respondent fails to appear for a hearing after receiving a noncompliant NTA. The BIA's pronouncements underscore a shift towards emphasizing respondent diligence in raising procedural challenges and delineating the circumstances under which *in absentia* removal orders are appropriate, even in the context of an initially flawed charging document. This article will delve into the background of NTA jurisprudence, analyze the BIA's holdings in *Lopez-Orellana*, and discuss the practical ramifications for immigration practitioners.

The legal saga surrounding the Notice to Appear (NTA) stems from the Immigration and Nationality Act (INA) § 239(a)(1), which mandates that an NTA must specify, among other things, the nature of the proceedings, the legal authority, the charges, and crucially, "the time and place at which the proceedings will be held." For years, the Department of Homeland Security (DHS) frequently issued NTAs that omitted the specific date and time of the initial hearing, instead stating "to be set."

This practice led to significant challenges, culminating in two landmark Supreme Court decisions. In *Pereira v. Sessions*, 585 U.S. 198 (2018), the Supreme Court held that an NTA that does not specify the time and place of the removal proceedings is not a "notice to appear" sufficient to trigger the "stop-time rule" for cancellation of removal. Subsequently, in *Niz-Chavez v. Garland*, 141 S. Ct. 1474 (2021), the Court clarified that to trigger the stop-time rule, the NTA must be a single document containing all the required information, including the time and place of the hearing, rejecting the government's "notice-by-installment" approach where a subsequent hearing notice would cure the defect. While these Supreme Court cases primarily focused on the stop-time rule and its impact on eligibility for relief, they highlighted the statutory requirements for a compliant NTA. The BIA, in *Matter of Fernandes*, 28 I&N Dec. 605 (BIA 2022), subsequently classified the NTA's time and place requirements as non-jurisdictional "claim-processing rules," meaning that defects could be waived or forfeited if not timely raised.

The *Lopez-Orellana* decision builds upon this established framework, particularly the "claim-processing rule" interpretation from *Matter of Fernandes*. In *Lopez-Orellana*, the respondent was issued an NTA on March 2, 2020, which, consistent with the problematic prior practice, did not include the date or time of the initial removal hearing. Subsequent hearing notices were issued, scheduling the initial hearing for August 10, 2022, and later reset to November 9, 2022. The respondent failed to appear for both scheduled hearings. The Immigration Judge (IJ) terminated proceedings without prejudice, relying on *Matter of Fernandes* and rejecting DHS's attempt to remedy the defective NTA via a Form I-261.

The BIA reversed the IJ's decision, reinstating proceedings and remanding the record. The Board articulated two key holdings. First, it clarified that an objection to a noncompliant NTA is the respondent's to raise, not the Immigration Judge's, and such an objection is forfeited if not timely raised. This reinforces the principle that NTA defects are procedural and require affirmative action from the respondent to be challenged. This aligns with the BIA's prior rulings, including *Matter of Lopez-Ticas*, 29 I&N Dec. 90 (BIA 2025), which emphasized that challenges to NTA defects must be raised before the close of pleadings.

Second, the BIA held that if an Immigration Judge is satisfied that a respondent, who has not appeared at a scheduled hearing, is removable as charged and received adequate notice of the *missed hearing* despite the noncompliant NTA, the IJ should proceed *in absentia* rather than terminating proceedings. This holding draws a crucial distinction between the initial NTA's compliance for purposes of the stop-time rule (as addressed in *Pereira* and *Niz-Chavez*) and the sufficiency of notice for an *in absentia* order. It echoes *Matter of Laparra*, 28 I&N Dec. 425 (BIA 2022), which found that a statutorily compliant notice of hearing is sufficient to support an *in absentia* order, even if the initial NTA was noncompliant. The BIA's stance here indicates that while a defective NTA might impact certain forms of relief, it does not automatically preclude the continuation of removal proceedings or the entry of an *in absentia* order if the respondent was properly notified of the specific hearing date and time and failed to appear. This also follows from *Matter of R-T-P-*, 28 I&N Dec. 828 (BIA 2024), which allowed IJs to amend NTAs to fix missing information, and *Matter of Aguilar-Hernandez*, 28 I&N Dec. 774 (BIA 2024), which clarified that a Form I-261 cannot cure a defective NTA.

The *Matter of Lopez-Orellana* decision represents a significant clarification from the BIA, solidifying the procedural landscape for noncompliant Notices to Appear. For practicing attorneys, the key takeaway is the heightened importance of diligently reviewing NTAs and subsequent hearing notices. Objections to NTA defects are not jurisdictional and must be timely raised by the respondent; otherwise, they are forfeited. This places a clear burden on counsel to identify and challenge any deficiencies early in the proceedings.

Furthermore, the decision clarifies that an Immigration Judge's authority to proceed *in absentia* is not necessarily undermined by an initially noncompliant NTA, provided the respondent received adequate notice of the specific hearing date and time and failed to appear. Practitioners must ensure their clients understand the critical importance of attending all scheduled hearings, as the BIA has provided a clear path for IJs to issue *in absentia* orders under these circumstances. Attorneys should remain vigilant in monitoring BIA and federal court developments, as the interpretation and application of NTA requirements continue to evolve, impacting case strategy and client outcomes in removal proceedings.