Niz-Chavez v. Garland: a Notice to Appear must be "one complete document," or it cannot stop the 10-year countNiz-Chavez v. Garland, 593 U.S. 155 (2021)
At a glance
| Item | Details |
|---|---|
| Case name | Niz-Chavez v. Garland |
| Court | U.S. Supreme Court (on review from the U.S. Court of Appeals for the Sixth Circuit) |
| Citation / docket no. | 593 U.S. 155 (2021); No. 19-863 |
| Argued | November 9, 2020 |
| Decided | April 29, 2021 |
| Vote | 6-3. Justice Gorsuch wrote the majority opinion, joined by Justices Thomas, Breyer, Sotomayor, Kagan and Barrett; Justice Kavanaugh wrote a dissent, joined by Chief Justice Roberts and Justice Alito |
| Provisions | INA 240A(d)(1) (stop-time rule); INA 239(a)(1) (required contents of a Notice to Appear); INA 240A(b)(1) (cancellation of removal for non-permanent residents) |
| Topics | Stop-time rule; whether a Notice to Appear may be served in installments |
| Current status | Still good law (as of October 2026). The contrary BIA precedent, Matter of Mendoza-Hernandez and Capula-Cortes (2019), no longer applies on the stop-time question; Campos-Chaves v. Garland (2024) held that this decision does not extend to rescinding in absentia removal orders |
| Opinion text | Justia, Cornell LII |
Background: the post-Pereira "cure" practice
In 2018, Pereira v. Sessions held that a Notice to Appear that does not state the hearing time or place does not trigger the stop-time rule. After that decision, the government's position was that even if the first notice lacked the time and place, once the immigration court later sent a notice of hearing stating the hearing time and place, the two documents together formed a complete Notice to Appear, and the stop-time rule was triggered when the second document was served.
The Board of Immigration Appeals (BIA) adopted this view in Matter of Mendoza-Hernandez and Capula-Cortes, 27 I&N Dec. 520 (BIA 2019), holding that a later notice of hearing could "cure" a defective Notice to Appear. The federal courts of appeals were divided. For the many people who received a "to be set" notice before 2018 and then a notice of hearing shortly afterward, this question directly determined whether they could meet the 10-year requirement for cancellation of removal.
Facts
The petitioner, Niz-Chavez, is from Guatemala. According to the opinion, he came to the United States in 2005 and later lived in Detroit. In March 2013, the government served him with a document listing the charges against him but stating that the hearing time and place were "to be set"; about two months later he received a second document scheduling a hearing in Detroit on June 25, 2013.
He later argued that the government had never served a complete Notice to Appear, that the stop-time rule had not been triggered, and that his time could keep accruing to 10 years, so he should be able to apply for cancellation of removal. The government argued that the two documents together satisfied the statute. The U.S. Court of Appeals for the Sixth Circuit sided with the government and denied his petition for review (789 Fed. Appx. 523 (6th Cir. 2019)).
Issues
- Must the "notice to appear" referred to in INA 240A(d)(1) be a single document containing all of the information required by 239(a)(1)?
- Can the government satisfy the requirement by serving the information in installments, triggering the stop-time rule when the last document is served?
What the Court held
The majority began with the statutory text: the law requires service of "a notice to appear." In English, the indefinite article "a" modifies a countable noun and refers to a single document. Justice Gorsuch wrote:
“To an ordinary reader—both in 1996 and today—‘a’ notice would seem to suggest just that: ‘a’ single document containing the required information, not a mishmash of pieces with some assembly required.”
The Court also noted that other "case-initiating documents," such as indictments, are ordinarily single documents; that the 1996 legislation removed language in the old law allowing notice to be given "otherwise"; and that the government itself, in its 1997 rulemaking commentary, acknowledged that the new statutory language indicated that the hearing time and place must be included in the Notice to Appear. As for the government's arguments about administrative burden and scheduling difficulties, the Court held that these could not justify departing from clear statutory text; the government could simply serve a complete notice first and, if the hearing later had to be rescheduled, issue a notice of change under 239(a)(2).
The majority opinion concluded:
“If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.”
Justice Kavanaugh's dissent argued that the statute defines a notice to appear simply as "written notice," which can be satisfied by two documents; that Niz-Chavez had received all of the information, including the hearing time and place, before reaching 10 years; and that the majority's rule lacked textual support and offered limited practical benefit.
What it means for you
People who want to apply for cancellation of removal (EOIR-42B, 10-year rule)
- If the first Notice to Appear you received lacked the hearing time or place, later notices of hearing or rescheduling notices cannot complete it to cut off your 10 years. As long as the government never served a complete Notice to Appear, the stop-time rule may never have been triggered, and your time may have continued to accrue.
- But if DHS later served a new, complete Notice to Appear, the clock may have stopped at that point. That is why you need to look at all of the documents, not just the first one.
- Besides the 10 years, you must also show good moral character, the absence of certain criminal convictions, and "exceptional and extremely unusual hardship" to a U.S. citizen or green card holder spouse, parent or child. See the Form EOIR-42B guide.
Green card holders (EOIR-42A)
- The stop-time rule also applies to the "7 years of continuous residence" required for cancellation of removal for green card holders. The "single document" rule of this case logically applies there too, but note that certain criminal conduct can itself cut off the count. See the Form EOIR-42A guide.
People with a case in immigration court
- This case addresses the stop-time question. Whether a defective Notice to Appear affects the immigration court's jurisdiction, or justifies a request to terminate proceedings, is a separate question: the BIA holds that it does not affect jurisdiction and that objections must be raised in time (see Matter of Fernandes below).
- If your case has already concluded and you want to rely on this decision to reopen proceedings and apply for cancellation of removal, motions to reopen are subject to strict deadlines and conditions and require a case-by-case assessment.
People who have received an in absentia removal order
- This case's "single document" rule does not directly apply to rescinding in absentia removal orders. In 2024, Campos-Chaves v. Garland held that if you received a proper notice of hearing for the hearing you missed, you cannot rescind the in absentia removal order solely because the Notice to Appear lacked the time and place.
Family members
- Family members often keep the person's immigration documents from years ago. Helping find every Notice to Appear, notice of hearing and envelope (which shows the mailing date and address) is very useful for calculating time. Missing records can be requested under the Freedom of Information Act (see G-639).
Later developments
- Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021): The BIA held that a Notice to Appear lacking the time and place of the initial hearing does not deprive the immigration judge of jurisdiction, and that Pereira and Niz-Chavez address a different question.
- Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022): The time-and-place requirement of INA 239(a)(1) is a "claim-processing rule," not a jurisdictional requirement; an objection is generally timely only if raised before the close of pleadings before the immigration judge; a respondent who objects in time generally need not show prejudice; and the immigration judge may allow DHS to remedy the noncompliant notice rather than necessarily terminating proceedings.
- Matter of Nchifor, 28 I&N Dec. 585 (BIA 2022): An objection that the Notice to Appear lacked the time and place, raised for the first time in a motion to reopen, is deemed forfeited.
- Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024): DHS cannot cure a Notice to Appear lacking the date and time of the initial hearing by filing Form I-261 (additional or substituted charges), because that would be inconsistent with the text of 8 CFR 1003.30 and with Niz-Chavez.
- Matter of Larios-Gutierrez de Pablo and Pablo-Larios, 28 I&N Dec. 868 (BIA 2024): The Fernandes objection deadline applies retroactively; an objection raised years after conceding removability is untimely.
- Campos-Chaves v. Garland, 602 U.S. 447 (2024): The Supreme Court held 5-4 that, for rescinding an in absentia removal order, receipt of a proper 239(a)(2) notice of hearing is sufficient, and that Niz-Chavez does not extend to that question.
As of October 2026, Niz-Chavez's holding on the stop-time rule has not been overruled or changed by legislation. For how it applies to you, check the latest case law in the circuit where your case is pending.
Practical steps: what to do now
- Put every document in date order: Notices to Appear (there may be more than one), notices of hearing, rescheduling notices, I-261s and judges' orders. For each, confirm whether it is complete and note the service date and address.
- Pin down two dates: your first entry date (and any later departures and returns), and the service date of the first complete Notice to Appear (if any).
- Assess objection strategy: Whether to object to the Notice to Appear before pleadings depends on what you want to achieve. An objection usually will not "win" the case; it may simply lead DHS to serve a new, complete notice, and the new notice may cut off the clock.
- Prepare the substantive evidence at the same time: Evidence of 10 years' residence, good moral character and hardship takes a long time to build. Do not wait until the timing question is resolved to begin.
Frequently asked questions
I first received a "to be set" Notice to Appear and a notice of hearing two months later. When did my 10 years stop?
Under Niz-Chavez, the two documents cannot be combined into a valid Notice to Appear that triggers the stop-time rule. If the government never later served a complete Notice to Appear, the clock may not have been cut off. But all of the documents must be reviewed to confirm whether a complete notice was served later.
Can Niz-Chavez get my removal case dismissed?
Generally it does not lead directly to dismissal. This case answers only the stop-time question. The BIA holds that defects in the Notice to Appear do not affect the immigration court's jurisdiction; an objection is a procedural matter that must be raised before the close of pleadings, and even if the objection succeeds, the immigration judge may simply allow DHS to remedy the defect.
I have already been ordered removed in absentia. Can I use Niz-Chavez to rescind the order?
If you received a proper notice of hearing for the hearing you missed, Campos-Chaves v. Garland (2024) held that you cannot rescind the in absentia removal order solely because the Notice to Appear lacked the time and place. Whether other grounds for rescission or reopening exist, such as not receiving notice or exceptional circumstances, depends on the specific facts and deadlines.
Do Notices to Appear issued today still omit the time and place?
Practice has varied across periods and situations, so no general answer is possible. Whenever you received a notice, check each item against the original.
If I have reached 10 years, will I definitely be granted cancellation of removal?
No. The 10 years are only one requirement, the hardship standard is very demanding, and the number of grants per fiscal year is limited. Whether to grant cancellation of removal ultimately also involves the immigration judge's discretion.
Opinion and sources
- U.S. Supreme Court docket No. 19-863
- Cornell LII: full text of Niz-Chavez v. Garland
- Justia: Niz-Chavez v. Garland, 593 U.S. 155 (2021)
- EOIR: Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021)
- Department of Justice: Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022)
- EOIR: Matter of Nchifor, 28 I&N Dec. 585 (BIA 2022)
- Department of Justice: Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024)
- Department of Justice: Matter of Larios-Gutierrez de Pablo, 28 I&N Dec. 868 (BIA 2024)
- EOIR: BIA and Attorney General precedent decisions
Related reading
- Form EOIR-42B guide: cancellation of removal for non-permanent residents
- Pereira v. Sessions: a Notice to Appear without the hearing time and place does not "stop the clock"
- Campos-Chaves v. Garland: in absentia removal orders and notices of hearing
- Form EOIR-42A guide: cancellation of removal for green card holders
- Form G-639 guide: Freedom of Information Act requests
Whether your 10 years were cut off depends on the contents and service date of every notice. Book an attorney assessment. We will review all of your immigration court documents and your entry and residence records, and then explain whether cancellation of removal or other relief is possible, and the risks involved.
This page is a general introduction to a court decision and is not legal advice. The law and case law change, and outcomes depend on the specific facts. To evaluate your situation, consult an attorney.