In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1956
CRISTIAN AVILA DE LA ROSA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General of
the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A209-001-117
____________________
ARGUED DECEMBER 9, 2020 — DECIDED JUNE 24, 2021
____________________
Before WOOD, BRENNAN, and ST. EVE, Circuit Judges.
WOOD, Circuit Judge. Cristian Avila de la Rosa received a
procedurally defective Notice to Appear for his immigration
removal proceedings, and (unlike many others) he made a
timely objection to that Notice. The immigration judge, how-
ever, disregarded Avila’s objection, and the Board of Immi-
gration Appeals thereafter insisted that Avila was not entitled
2 No. 20-1956
to relief unless he could demonstrate prejudice from the de-
fective Notice. The Board erred in doing so; we thus grant
Avila’s petition for review and remand for further proceed-
ings.
I
Avila, a Mexican citizen, has lived continuously in the
United States since he entered as a minor in 2008. He commit-
ted an infraction that led to a disorderly conduct charge in
2019. On May 6, 2019, five days after he pleaded guilty to that
charge, he was transferred to the custody of the Department
of Homeland Security for removal proceedings.
In order properly to begin removal proceedings, the De-
partment is required to serve a Notice to Appear on the
noncitizen. See 8 U.S.C. § 1229(a). The statute specifies the in-
formation that the Notice must include. Relevant to our pur-
poses, the Notice must set forth “[t]he time and place at which
the proceedings will be held.” Id. § 1229(a)(1)(G)(i). The No-
tice that Avila received, however, did not comply with that
requirement. Only later did he receive from the immigration
court a “Notice of Hearing” with those details.
On June 9, 2019, Avila filed a motion to terminate his pro-
ceedings on the ground that the Notice he received was defec-
tive. As we noted above, the immigration judge promptly de-
nied that motion and ordered Avila removed to Mexico. Avila
then appealed to the Board of Immigration Appeals (BIA).
Although the BIA acknowledged that the Notice to Appear
was noncompliant, it reasoned that Avila was not entitled to
relief because he had not shown that the defects in the Notice
prejudiced him in any way, and so it affirmed the order of re-
moval. Avila then filed a petition for review in this court.
No. 20-1956 3
II
Avila’s petition for review presents only a legal question:
whether the receipt of a defective Notice, followed by a
prompt objection, entitled Avila to have the removal
proceedings dismissed, or if he could win dismissal only if he
could prove that the flaws in the Notice prejudiced him. Our
review of the Board’s legal conclusions is de novo. Sobaleva v.
Holder, 760 F.3d 592, 596 (7th Cir. 2014). This is therefore not a
case, contrary to the government’s assertions, in which the
substantial-evidence rule comes into play, as the Board made
no factual determinations that would trigger it. Ahmed v.
Ashcroft, 348 F.3d 611, 615 (7th Cir. 2003).
In setting forth the requirements for a Notice to Appear,
the Immigration and Nationality Act uses mandatory lan-
guage: “written notice … shall be given in person to the alien
… specifying the following.” 8 U.S.C. § 1229(a)(1) (emphasis
added). We have held that these requirements are not juris-
dictional; instead, they are mandatory claims-processing
rules for which noncompliance will result in relief upon a
timely objection. See Ortiz-Santiago v. Barr, 924 F.3d 956 (7th
Cir. 2019). The entitlement to relief, as we explained in Ortiz-
Santiago, does not depend on a showing of prejudice. Like
other mandatory claims-processing rules, those found in sec-
tion 1229 “[i]f properly invoked … must be enforced, but they
may be waived or forfeited.” Hamer v. Neighborhood Hous.
Servs. of Chi., 138 S. Ct. 13, 17 (2017). Ortiz-Santiago applied
that concept to defective Notices to Appear, explaining that
“[r]elief will be available for those who make timely objec-
tions, as well as those whose timing is excusable and who can
show prejudice.” Ortiz-Santiago, 924 F.3d at 963 (emphasis
added). We built upon this reasoning in Alvarez-Espino v. Barr,
4 No. 20-1956
959 F.3d 813 (7th Cir. 2020), and denied a petition to review
for a person who waited until his appeal to the BIA before
making an objection to his noncompliant Notice to Appear,
on the ground that he failed to establish prejudice. Id. at 819;
see also Vyloha v. Barr, 929 F.3d 812, 817 (7th Cir. 2019).
There is no dispute that Avila never received a compliant
Notice to Appear. His Notice omitted “the time and place at
which the proceedings [were to be] held.” At the time we
heard oral argument in this case, the government endeavored
to overcome that problem with the argument that the later
“Notice of Hearing” Avila received cured the problem. This
court, however, already had suggested that the statute did not
permit notice to be accomplished in two or more steps; such
an approach, we thought, is inconsistent with the express lan-
guage in section 1229(a) and the Supreme Court’s guidance in
Periera v. Sessions, 138 S. Ct. 2105, 2116–17 (2018). See Ortiz-
Santiago, 924 F.3d at 962 (rejecting the government’s invitation
to approve of this “two-step process”).
The Supreme Court recently ratified our position. In Niz-
Chavez v. Garland, 141 S. Ct. 1474 (2021), it held that section
1229(a) requires a single, complete Notice to Appear. It
rejected what it called the government’s “notice-by-
installment theory,” id. at 1479, and said that the language of
the statute compels a single document with all the required
information. The only issue, then, is whether the petitioner
must show not only that the Department violated the
mandatory claims-processing rule (it concededly did), but
also that he was prejudiced by that violation.
Relying on our decision in Alvarez-Espino, the Board took
the position that only prejudicial violations of the rule will
No. 20-1956 5
support relief for the noncitizen. It did so based on an expan-
sive reading of Alvarez-Espino, under which a showing of prej-
udice would be necessary for all challenges to the elements of
a Notice to Appear. This was mistaken. The prejudice require-
ment in Alvarez-Espino derives squarely from Ortiz-Santiago,
in which we held that relief will be available either (1) upon a
timely objection or (2) both excusable untimeliness and a
showing of prejudice. The petitioner in Alvarez-Espino was
trying to take advantage of the second approach, because he
failed to object to his noncompliant Notice to Appear until his
appeal to the BIA. That was far too late for an objection that
should have been lodged at the outset of the proceeding, and
so the petitioner had to show both an excuse for his untimely
objection and prejudice from the delay. Because he had not
demonstrated prejudice, we denied his petition for review.
We note as well, for what it is worth, that the dissenting Jus-
tices in Niz-Chavez complained about just this point, noting
that the majority’s opinion allowed Niz-Chavez to seek can-
cellation of removal even though he “suffered zero prejudice
from receiving notice in two documents rather than one.” Niz-
Chavez, 141 S. Ct. at 1497 (Kavanaugh, J., dissenting). Given
the attention the dissent paid to the question of prejudice, we
strongly doubt that it eluded the majority.
A noncitizen who raises a timely objection to a noncom-
pliant Notice to Appear, consistent with Niz-Chavez and Ortiz-
Santiago, is entitled to relief without also having to show prej-
udice from the defect. Section 1229(a) spells out what “shall”
be included in the Notice to Appear. Congress created these
requirements, and it is not for us or the Department to pick
and choose when or how to alter them. As Niz-Chavez put it,
6 No. 20-1956
“a rational Congress could reach the policy judgment the stat-
utory text suggests it did; and no amount of policy-talk can
overcome a plain statutory command.” 141 S. Ct. at 1486.
III
The BIA erred by requiring Avila to show prejudice from
his defective Notice to Appear, even though Avila filed a
timely objection and thus invoked the benefits of the manda-
tory claim-processing rules of section 1229. We thus GRANT
his petition for review and REMAND his case to the Board for
further proceedings.