Defective Notices to Appear (Pereira and Niz-Chavez)

Short answer: If the government's Notice to Appear (NTA) — the charging document that starts removal (deportation) proceedings — leaves out the date, time, or place of your hearing, the Supreme Court has said that document does not count as a valid NTA for one specific purpose: stopping the clock on certain years-in-the-country requirements for a defense called cancellation of removal. This comes from two Supreme Court cases, Pereira v. Sessions (2018) and Niz-Chavez v. Garland (2021). But this is a narrow, technical rule, not a "get out of removal free" card — it usually does not get a whole case thrown out, and recent Board of Immigration Appeals (BIA) decisions have narrowed how much it helps. Because the law here keeps shifting, treat anything below as a starting point for a conversation with a qualified immigration attorney or a Department of Justice (DOJ)-accredited representative, not as the final word on your case.

What is a Notice to Appear, and what does "defective" mean?

An NTA is the document U.S. Immigration and Customs Enforcement (ICE) or another Department of Homeland Security (DHS) component files to begin removal proceedings against someone in immigration court. By statute (Immigration and Nationality Act (INA) § 239(a)), it is supposed to include specific information, including the time and place of the first hearing before the Executive Office for Immigration Review (EOIR) — the immigration court system run by the Department of Justice.

For years, DHS routinely issued NTAs that said the hearing would be on "a date to be set" and "a time to be set," with the actual date and time mailed later in a separate hearing notice. The Supreme Court held that this practice does not satisfy the statute — at least for one important purpose described below.

What the Supreme Court actually decided

Pereira v. Sessions (2018)

In Pereira v. Sessions, the Supreme Court held (8–1) that an NTA that fails to specify the time or place of the hearing does not trigger the "stop-time rule" used in non-permanent-resident cancellation of removal cases. In plain terms: if your NTA didn't have a real date and time on it, your years of continuous physical presence in the U.S. kept accruing after the NTA was filed, instead of freezing on that date.

Niz-Chavez v. Garland (2021)

Niz-Chavez v. Garland went further. The government argued it could fix a defective NTA by later mailing a separate notice that supplied the missing time and place, and that the combination of the two documents should stop the clock as of the date of the second notice. The Supreme Court disagreed (6–3), holding that the statute requires a single document containing all the required information — the time and place cannot be supplied piecemeal across multiple mailings for stop-time purposes.

Together, these two cases are often shorthanded as the "Pereira/Niz-Chavez" line of cases.

How this connects to cancellation of removal

Cancellation of removal is a form of relief that lets certain long-present noncitizens ask an immigration judge to cancel their removal and grant lawful permanent residence, if they meet strict eligibility requirements. Two versions exist:

• Non-permanent residents generally must show, among other things, 10 years of continuous physical presence in the United States (plus other requirements, including that removal would cause exceptional and extremely unusual hardship to certain qualifying relatives).
• Lawful permanent residents generally must show at least 5 years as an LPR and 7 years of continuous residence after admission in any status.

The "stop-time rule" says that continuous presence or residence stops accruing on the earlier of (a) service of a properly completed NTA, or (b) certain qualifying criminal offenses. Under Pereira and Niz-Chavez, a defective NTA — one missing time or place, delivered other than as a single document — does not stop that clock. That can matter enormously: someone who was a few months short of 10 years' presence when charged might, because the clock never legally stopped, cross the 10-year threshold while the case is still pending, and become eligible to apply for cancellation. For background on cancellation eligibility generally, see our related article on cancellation of removal.

This is a narrow, arithmetic effect on eligibility — it does not by itself grant cancellation of removal. The person still has to separately prove every other element of the defense, including hardship and discretion, to an immigration judge.

Does a defective NTA get the whole case dismissed?

Usually not, and this is the point where many people get the law wrong. The BIA and federal courts have made clear that:

• A time-and-place defect is generally treated as a claim-processing rule, not a jurisdictional defect. That distinction matters: a jurisdictional defect can potentially void the whole proceeding, while a claim-processing defect is a procedural requirement that can be forfeited if not raised in time, and can sometimes be fixed.
• The BIA has held that a challenge to a defective NTA generally must be raised early — at or before the close of pleadings, typically at or shortly after the first master calendar hearing. Waiting too long can waive the objection.
• The BIA has held that DHS cannot cure a missing time-and-place defect simply by later filing a Form I-261 (Additional Charges of Inadmissibility/Deportability).
• More recently, the BIA has held that an immigration judge may allow DHS to amend the NTA on the record — effectively writing in the missing time and place — so long as the result functions as a single document under Niz-Chavez and the respondent gets adequate advance notice of the (re-set) hearing. This significantly limits how often a time-and-place defect leads to outright termination of proceedings today.

Separately, the Supreme Court has also distinguished the stop-time context from other contexts. In Campos-Chaves v. Garland (2024), the Court held that when someone is ordered removed in absentia (for not showing up), a defective original NTA does not automatically entitle them to reopen that order if a later, separate hearing notice — for the specific hearing they missed — did include the correct time and place. In other words, Pereira/Niz-Chavez's "single document" reasoning for stop-time purposes has not been extended to automatically undo in-absentia removal orders in that scenario.

Motions to terminate: what they can and can't do

A "motion to terminate" asks the immigration judge to end the removal proceeding, often based on a defect in the NTA or a jurisdictional problem. Because the law in this area has moved quickly and unevenly across the BIA and the federal circuit courts, the realistic uses of a motion to terminate based on a Pereira/Niz-Chavez-style defect include:

• Preserving the argument that a defective NTA did not stop the clock for cancellation of removal purposes (this is the strongest, most settled use).
• Arguing, where your circuit's case law supports it, that the specific type of defect in your NTA is not curable or was not properly cured.
• Building a record for appeal to the BIA and, if necessary, the federal court of appeals, since circuits and even BIA panels have not treated every defect identically.

What a motion to terminate on NTA-defect grounds generally cannot reliably do anymore is guarantee dismissal of an otherwise-valid removal case just because the original NTA said "date and time to be set." For background on what the NTA is supposed to contain and what your first hearing looks like, see our related article on the Notice to Appear and your first hearing.

Why this area keeps shifting — hedge accordingly

This is active, evolving litigation. Since 2018, the Supreme Court has ruled twice on the core question, the BIA has issued multiple precedent decisions narrowing and clarifying the practical remedy, and federal circuit courts have not always agreed with each other on side issues. Immigration policy and enforcement priorities can also change how aggressively DHS pursues amendment of defective NTAs. Do not rely on general online summaries (including this one) as the final word on how a defective NTA affects your specific case — the outcome depends on your specific facts, which circuit you're in, when you raise the issue, and the current state of BIA and circuit precedent at the time your case is decided.

What to do if you think your NTA is defective

1. Get the actual document. Look at your NTA (Form I-862) and see exactly what it says about the date, time, and place of your hearing. "To be set" language is the classic defect; a specific date and time is not.
2. Check your continuous presence or residence math. If you are pursuing cancellation of removal, calculate your time in the U.S. as if the clock never stopped on the NTA date, and see whether that changes your eligibility.
3. Raise it early. Because objections can be waived if raised too late, this needs to come up at or before the close of pleadings — do not wait.
4. Watch for DHS motions to amend the NTA. DHS or the immigration judge may try to fix the defect on the record; how you respond to that can affect your rights, so don't ignore it.
5. Track your deadlines regardless of the NTA issue. A defective NTA argument does not pause other deadlines in your case — including the one-year deadline to apply for asylum (with limited exceptions), any deadline to file appeals with the BIA, or deadlines to file motions to reopen or reconsider. Missing those deadlines can end your case even if your NTA argument is strong.
6. Talk to a qualified immigration attorney or DOJ-accredited representative before filing any motion. Whether a defect helps you at all depends heavily on your specific facts and current law in your circuit.

Where to verify current information

• The Executive Office for Immigration Review (EOIR), Department of Justice: justice.gov/eoir — for current BIA precedent decisions and the Immigration Court Practice Manual.
• U.S. Citizenship and Immigration Services: uscis.gov
• U.S. courts of appeals for your circuit, for controlling case law where you live.

Beware notario fraud. Only a licensed immigration attorney or a representative accredited by the Department of Justice can properly evaluate whether your NTA is defective and file a motion on your behalf. Notarios, "immigration consultants," and unauthorized practitioners cannot legally represent you in immigration court, and following bad advice on a technical issue like this can cost you real deadlines and real rights. Verify any attorney's license or find accredited representatives and free/low-cost legal help through EOIR's list of legal service providers at justice.gov/eoir.

This article is general legal information, not legal advice, and does not create an attorney-client relationship. Immigration consequences can be severe and time-sensitive — consult a qualified immigration attorney or a DOJ-accredited representative about your specific situation.