NTA Defects: Pereira v Sessions and Niz-Chavez Notice Challenges
A Notice to Appear is the document that opens a removal case. It is the charging paper the Department of Homeland Security files to put someone in front of an immigration judge. For years, the government issued these documents with a blank where the hearing date and time should be, often printing nothing more than the words "to be determined." Two Supreme Court decisions, Pereira v. Sessions and Niz-Chavez v. Garland, turned that shortcut into one of the most litigated questions in removal defense. If you or a family member received an NTA with no real hearing date, that defect may matter a great deal. It may also matter much less than the headlines suggest, because the law in 2026 is far more nuanced than "a defective NTA gets your case dismissed." This article explains what a defective NTA actually is, what these notice challenges can win, and why timing now decides almost everything.
What Makes a Notice to Appear Defective
The content of a Notice to Appear is set by statute. Under INA section 239(a)(1), codified at 8 U.S.C. section 1229(a)(1), the NTA must state the nature of the proceedings, the legal authority for them, the conduct alleged to violate the law, the charges and statutory provisions, the fact that the person may be represented by counsel, and, critically, the time and place at which the proceedings will be held. The same statute warns of the consequences of failing to appear.
A defective NTA is one that leaves out information the statute requires. In practice, the missing piece is almost always the same. For a long stretch of years, DHS filed NTAs that said the hearing would occur on a date and at a time "to be set" or "to be determined." The immigration court would later mail a separate notice of hearing under INA section 239(a)(2) with the real date and time. The government treated that two-step process as good enough. The Supreme Court disagreed, and that disagreement is the foundation of every notice challenge raised today.
Pereira v. Sessions and the Time and Place Rule
In Pereira v. Sessions, decided in 2018, the Supreme Court held that a putative Notice to Appear that fails to designate the specific time or place of the removal proceedings is not a valid Notice to Appear for purposes of the stop-time rule. The stop-time rule, found at INA section 240A(d)(1), is what freezes a person's accumulation of continuous physical presence in the United States. That continuous presence clock matters because non-lawful permanent resident cancellation of removal under INA section 240A(b) requires ten years of continuous physical presence. When the government serves a complete NTA, the clock stops. Pereira held that an incomplete NTA, one missing the time and place, does not stop the clock at all.
The decision landed like a surprise on immigration courts across the country. Suddenly, thousands of people who had been served defective NTAs argued that their presence clock had never stopped, which meant many of them had quietly crossed the ten-year threshold for cancellation eligibility. Pereira also spawned a broader argument that defective NTAs deprived the court of jurisdiction entirely, an argument that has since been narrowed, as discussed below.
Niz-Chavez v. Garland and the Single Document Rule
The government tried to limit Pereira by arguing that it could cure a defective NTA piecemeal. In its view, the original NTA plus a later hearing notice together supplied all the required information, so the clock should stop when the second document arrived. In Niz-Chavez v. Garland, decided in 2021, the Supreme Court rejected that approach. The Court focused on a single word in the statute, the article "a" in front of "notice to appear," and concluded that Congress meant one complete document, not a series of papers that a person would have to assemble. The Court memorably refused to let the government satisfy its duty with what it called a mishmash of pieces with some assembly required.
The practical holding is straightforward. For stop-time purposes, the continuous presence clock keeps running unless and until DHS serves a single Notice to Appear that contains every piece of statutorily required information at once, including the hearing time and place. A later hearing notice does not cure the original defect for that purpose. Pereira and Niz-Chavez together remain good law in 2026, and they are the backbone of the strongest notice challenges.
What a Defective NTA Can and Cannot Win in 2026
This is where many people, and frankly some lawyers, go wrong. A defective NTA is not a single key that unlocks every door. It is relevant to at least three different fights, and it carries different weight in each one. The first fight is the stop-time question, where Pereira and Niz-Chavez remain powerful. A defective NTA that never stopped the clock can mean a person has accrued the ten years of continuous presence needed for cancellation of removal. The second fight is termination of the proceedings, where a respondent asks the immigration judge to end the case because the charging document was defective. The third fight is the rescission of an in absentia removal order, where someone ordered deported for missing a hearing argues that the defective notice excuses the absence. Each of these has its own rules, and the law has tightened on two of the three.
Understanding which fight you are in is the single most important strategic decision in a notice challenge. Our Lehigh Valley clients are often surprised to learn that winning termination is not always in their interest, and that a defective NTA can sometimes be more valuable left alone than raised. We discuss why below.
The Timing Trap: Matter of Fernandes and the Close of Pleadings
The Board of Immigration Appeals reshaped notice challenges in Matter of Fernandes, decided in 2022. The Board held that the time and place requirement in the NTA statute is a claim-processing rule, not a jurisdictional requirement. That distinction has enormous consequences. A jurisdictional defect can be raised at any time and cannot be waived. A claim-processing rule, by contrast, can be waived or forfeited if it is not raised on time.
Under Fernandes, a respondent must object to a defective NTA before the close of pleadings, which in most cases means at or before the first or second master calendar hearing. A respondent who objects in time does not have to show that the missing information caused any prejudice. The objection stands on its own. A respondent who sleeps on the objection, however, loses it. This is the timing trap, and it catches people who did not know to raise the issue early, or who appeared at their first hearing without counsel and pleaded to the charges without ever mentioning the defect. For anyone in proceedings before the Philadelphia Immigration Court, which serves the Lehigh Valley, the lesson is to identify a notice defect before the first substantive hearing, not after.
What Changed in 2024 and 2025
Three more decisions refined the landscape and, on balance, made notice challenges harder to win for termination and in absentia rescission, while leaving the stop-time argument intact.
In Campos-Chaves v. Garland, decided in 2024, the Supreme Court addressed in absentia orders. In a five to four decision, the Court held that a noncitizen who received a proper hearing notice under INA section 239(a)(2) cannot rescind an in absentia removal order simply because the original NTA was defective. The person must show a failure to receive notice under either the NTA paragraph or the hearing notice paragraph. In plain terms, if the court mailed you a valid notice of your hearing date and you did not show up, the defect in the original NTA will usually not rescue you.
In Matter of Aguilar-Hernandez, decided in 2024, the Board held that DHS cannot fix a defective NTA by filing a Form I-261, the supplemental charging form. Doing so would violate the single document rule of Niz-Chavez. That holding favors respondents.
In Matter of Lopez-Ticas, decided in 2025, the Board pulled the threads together. It confirmed that a defective NTA does not automatically terminate proceedings, reaffirmed that objections must come before the close of pleadings, and applied the Fernandes timeliness rule retroactively so that older cases cannot revive forfeited objections. Significantly, Lopez-Ticas held that DHS may remedy an NTA missing the date and time by asking the immigration judge to amend the document and write in the hearing information. The Form I-261 path remains closed, but the amend-in-court path is now open. The result is that termination based purely on a missing date and time is harder to obtain than it was a few years ago, because the government often can cure the defect prospectively at the hearing.
Why Termination Is Not Always the Goal
Here is the counterintuitive part that separates a careful notice challenge from a reflexive one. Because a defective NTA does not stop the continuous presence clock under Pereira and Niz-Chavez, a person can keep accruing time toward the ten years required for cancellation of removal even while the case is pending. If a respondent rushes to terminate proceedings before reaching ten years, the government can simply re-serve a corrected NTA and start a new case, and the clock then stops. In some situations, the better strategy is to let the defective NTA sit, continue accruing presence, and preserve eligibility for relief, rather than win a termination that resets the board.
This is a judgment call that depends on the individual facts, how much continuous presence the person has accrued, what relief they qualify for, and the risks of continued proceedings. It is exactly the kind of decision that should be made with counsel before the close of pleadings, not improvised at the podium. The interplay between the stop-time argument and the cancellation timeline is the reason notice challenges reward careful planning and punish guesswork.
What This Means at the Philadelphia Immigration Court
Residents of Allentown, Bethlehem, Easton, and the broader Lehigh Valley who are placed in removal proceedings appear before the Philadelphia Immigration Court. That is where a notice challenge lives or dies. The defect must be spotted on the charging document, the strategic question of whether to raise it must be answered, and any objection must be made before the close of pleadings. Because the 2024 and 2025 decisions narrowed the termination and in absentia paths while leaving the stop-time argument standing, the value of a defective NTA in any given case now depends heavily on the specific relief the person is seeking and the precise stage of the proceedings.
If you received a Notice to Appear that did not list a real hearing date and time, do not assume your case is either doomed or automatically dismissable. Bring the document to a removal defense attorney early, before your first substantive hearing, so the defect can be evaluated against your eligibility for relief. Our firm handles these notice challenges as part of our removal defense practice in the Lehigh Valley, and we routinely counsel clients on whether to raise a defect or preserve it. To understand what happens at the hearing where these objections are made, see our guide to the master calendar hearing in Philadelphia Immigration Court, and if your hearing will be held remotely, our explanation of how virtual immigration court actually works. If you want your NTA reviewed, contact our office to schedule a consultation.
This article is for general informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship. Immigration law changes frequently and every case turns on its own facts. For advice about your situation, consult a licensed immigration attorney.