What Is a Notice to Appear in Immigration Court?
Shifting policies and legal requirements for NTAs and removal proceedings
By Doug Mentes, Esq. | Reviewed by Canaan Suitt, J.D. | Last updated on December 20, 2023 Featuring practical insights from contributing attorney Helen L. ParsonageUse these links to jump to different sections:
- June 2018: The U.S. Supreme Court Issues an Important Decision Regarding Notices to Appear
- July 2018: USCIS Issues NTA Guidance Aligning with Trump Administration’s Immigration Enforcement Priorities
- 2021: Under Biden Administration, DHS Rescinds 2018 NTA Policy and Narrows Deportation Priorities
- Find an Experienced Immigration Lawyer
In immigration law, a Notice to Appear (NTA) is a document that the Department of Homeland Security (DHS) files with a U.S. immigration court to begin removal proceedings against an individual it believes is deportable under Section 240 of the Immigration and Nationality Act (INA).
As with many areas of immigration law, policies and legal requirements around NTAs have shifted in recent years—including changes from the executive branch and the judiciary. Here is a brief overview of important changes.
June 2018: The U.S. Supreme Court Issues an Important Decision Regarding Notices to Appear
Section 240 of the INA lists several eligibility requirements for canceling removal proceedings against a non-permanent resident. One of those requirements is that the individual has continuously resided in the United States for at least a 10-year period of time. Importantly, noncitizens cease to accrue time once they are issued an NTA.
In the 2018 case Pereira v. Sessions, the U.S. Supreme Court ruled that NTAs that don’t inform noncitizens when and where to appear for their court hearing are invalid. Receiving an invalid NTA does not stop the clock on accruing time toward the 10 years of continuous presence. The Pereira ruling could open the door to the cancellation of removal proceedings for many noncitizens who had been issued invalid NTAs.
July 2018: USCIS Issues NTA Guidance Aligning with Trump Administration’s Immigration Enforcement Priorities
In July 2018, U.S. Citizenship and Immigration Services (USCIS) issued new guidance expanding the range of individuals to whom Immigration and Customs Enforcement (ICE) officers would send NTAs. The expanded scope of NTA issuance aligned with President Trump’s broadened immigration and deportation enforcement policies.
Under the policy, if an application, petition, or benefit request was denied, “they will issue a Notice to Appear if you don’t have any other status,” explained Helen Parsonage, an immigration attorney at Elliot Morgan Parsonage in Winston-Salem, North Carolina.
“Whether immigration court and deportation proceedings finally end up in deportation is unknown, but still you’re going to have to go through the process”—a process she describes as very difficult for her clients. “It’s traumatic for people to go to immigration court; it’s terrifying, demeaning, and demoralizing.”
Besides individuals who are immediately declared unlawful when an application, petition, or benefit request to adjust status is denied, under the new policy change, NTAs would also be issued to persons who have either:
- Been convicted of any criminal offense;
- Been charged with any criminal offense that has not been resolved;
- Committed acts that constitute a chargeable criminal offense.
- Engaged in fraud or willful misrepresentation with any government matter or application;
- Abused any program related to receipt of public benefits;
- Have not departed after receiving a final order of removal.
Parsonage summed up the 2018 policy by saying “[it’s] a sea change of incredible proportions” and “it’s going to get people into deportation who were not before.” Using an analogy, she compared it to instituting an imagined policy of ticketing all drivers who drive one mile per hour over the speed limit. “Everybody would be ticketed, no excuses, and they’d take away your driver’s license,” she says. “There is a reason they don’t give tickets to everybody that they pull over. It’s resources, common sense, and fairness.”
2021: Under Biden Administration, DHS Rescinds 2018 NTA Policy and Narrows Deportation Priorities
In January 2021, the DHS issued a policy memo in line with President Biden’s Executive Order rescinding the 2018 guidance on NTAs. Then, in September 2021, the DHS issued guidelines narrowing deportation priorities from the six categories of the Trump administration to noncitizens who were either:
- A threat to national security;
- A threat to public safety; or
- A threat to border security.
In June 2023, the U.S. Supreme Court sided with the Biden administration in a legal challenge brought by Texas and Louisiana against these guidelines, finding that the states lacked standing to challenge the U.S. government executive branch’s power to set and enforce immigration policies.
Find an Experienced Immigration Lawyer
If you have questions about immigration law for yourself or a family member, Parsonage warns to avoid notaries—unlicensed scam artists. Anyone who fills out immigration paperwork on their own is at risk of denial. Everyone needing assistance with their immigration matter should speak with an experienced immigration attorney before taking any action.
For more information on immigration law, including adjustment of status, the process of getting a green card, or becoming a U.S. citizen, see our immigration overview.
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