Introduction
The in absentia removal ruling in Matter of Lopez-Orellana, 29 I&N Dec. 533 (BIA 2026), clarifies a procedural question that has shaped outcomes in removal proceedings for years. Decided on March 27, 2026, the Board of Immigration Appeals held that an Immigration Judge may not terminate removal proceedings solely because a notice to appear lacked an initial hearing date or time, provided the respondent received a separate notice of hearing containing that information and still failed to appear. This decision has direct consequences for respondents in removal proceedings, DHS counsel, and practitioners managing cases where the original NTA was deficient.
Background and Facts
Procedural History
DHS issued a notice to appear to the respondent on March 2, 2020. That NTA did not include the date or time of the initial removal hearing. Subsequent notices of hearing scheduled the initial master calendar hearing for August 10, 2022. The respondent failed to appear. The matter was reset to November 9, 2022. On that date, DHS filed a Form I-261, Additional Charges of Inadmissibility/Deportability, adding the original date, time, and location of the first hearing as a factual allegation. The respondent again failed to appear. The Immigration Judge terminated proceedings without prejudice, citing the NTA’s noncompliance with Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022). DHS timely appealed to the Board.
Operative Facts
The respondent, Elmer Omar Lopez-Orellana, was placed in removal proceedings through the issuance of a notice to appear that was facially deficient because it omitted the scheduled hearing date and time. Despite receiving separate notices of hearing that specified when and where to appear, the respondent did not attend his initial master calendar hearing on August 10, 2022, or the rescheduled hearing on November 9, 2022. He appeared pro se and did not raise any objection to the NTA’s noncompliance at any point. The Immigration Judge, acting on her own initiative, identified the NTA deficiency and used it as the basis for terminating the proceedings rather than entering an in absentia order.
Legal Issue
Whether an Immigration Judge may terminate removal proceedings on the basis of a noncompliant notice to appear when the respondent has not objected to the NTA’s deficiency and received adequate notice of the missed hearing through a separately issued notice of hearing.
Legal Authority and Binding Status
This decision is a published BIA precedent and is therefore binding on all Immigration Judges and DHS counsel within the jurisdiction of the Executive Office for Immigration Review. It applies directly to cases in the Fifth Circuit, which covers Texas, Louisiana, and Mississippi, and carries strong persuasive authority in other circuits.
Objection based on NTA noncompliance
The Board applied two primary legal authorities. First, Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022), established that an NTA lacking the time and place of the initial hearing is noncompliant under INA § 239(a)(1), 8 U.S.C. § 1229(a)(1). However, Fernandes also established that any objection based on NTA noncompliance belongs to the respondent, not the Immigration Judge, and is forfeited if not timely raised.
Removal order despite a noncompliant NTA
Second, and more significantly, the Board applied Campos-Chaves v. Garland, 602 U.S. 447 (2024), in which the Supreme Court held that an in absentia removal order may issue despite a noncompliant NTA when the alien received notice of the missed hearing through a notice of hearing issued under INA § 239(a)(2)(A), 8 U.S.C. § 1229(a)(2)(A). The Fifth Circuit applied Campos-Chaves in Luna v. Garland, 123 F.4th 775 (5th Cir. 2024), cert. denied, 146 S. Ct. 91 (2025), confirming that a notice of hearing specifying the time and place of the missed hearing satisfies the statutory notice requirement for an in absentia removal order under INA § 240(b)(5)(A).
This decision does not supersede Fernandes but clarifies its interaction with Campos-Chaves and defines the proper procedural remedy when a respondent fails to appear despite receiving adequate hearing notice.
Court’s Reasoning
Right to object to a noncompliant NTA
The Board began by identifying a foundational error in the Immigration Judge’s approach. Under Fernandes, the right to object to a noncompliant NTA belongs exclusively to the respondent. Because Lopez-Orellana never appeared at any of his master calendar hearings, he never raised an NTA objection. Accordingly, that objection was forfeited. The Immigration Judge lacked authority to raise the NTA deficiency sua sponte as a basis for termination.
Absentia inquiry
The Board then turned to the remedy question. Even accepting that the NTA was noncompliant, the appropriate response when a respondent fails to appear is not termination but an in absentia inquiry. The Supreme Court’s holding in Campos-Chaves resolved this squarely: a defective NTA does not bar an in absentia removal order so long as the government separately provided the respondent with a notice of hearing that contained the date, time, and place of the missed proceeding. In this case, the respondent received such notices for both the August 10, 2022, and November 9, 2022, hearings. That notice, issued under INA § 239(a)(2)(A), satisfied the statutory prerequisite for an in absentia order.
The Board drew support from Matter of Sanchez-Herbert, 26 I&N Dec. 43 (BIA 2012), which held that when an alien fails to appear because they have departed the United States, an in absentia hearing — not termination — is the proper course. The parallel reasoning applies here: an alien’s failure to appear, regardless of NTA deficiency, triggers an in absentia analysis rather than termination.
Oral decision within the transcript
The Board also noted a procedural concern unrelated to the main holding. The Immigration Judge embedded her oral decision within the transcript without clearly distinguishing it from the surrounding proceedings. The Board reminded Immigration Judges that oral decisions must be clearly defined from the remainder of the hearing record, citing Matter of A-P-, 22 I&N Dec. 468, 477 (BIA 1999).
Holding and Key Takeaways
The Board held that termination of Lopez-Orellana’s removal proceedings was improper. Two binding rules emerge from this decision.
First, an objection to NTA noncompliance belongs to the respondent and is forfeited if not timely raised. An Immigration Judge may not raise that objection independently or use it as grounds for termination when the respondent has not appeared.
Second, when a respondent fails to appear at a scheduled hearing, the Immigration Judge must conduct an in absentia inquiry under INA § 240(b)(5)(A) rather than terminate proceedings, provided the respondent received adequate notice of the missed hearing through a notice of hearing issued under INA § 239(a)(2)(A). NTA noncompliance does not override that obligation.
The decision vacated the Immigration Judge’s November 9, 2022, ruling and remanded the record with instructions to re-examine whether Lopez-Orellana is removable as charged and, if so, whether an in absentia removal order is warranted. On remand, if the respondent fails to appear again, the Immigration Judge must proceed in absentia.
The holding is broad in application. It affects any case where a respondent received a defective NTA but was subsequently served with a hearing notice containing the required time and place information, failed to appear, and did not raise an NTA objection. That scenario now requires an in absentia determination rather than termination.
Practical Immigration Implications
This decision has immediate operational consequences for Immigration Judges, DHS counsel, and respondents’ attorneys.
For Immigration Judges, the ruling removes discretion to terminate proceedings on the basis of a defective NTA when the respondent never appeared and never objected. Judges must now conduct the two-part in absentia analysis: first, whether the respondent received adequate notice of the missed hearing through a compliant notice of hearing; and second, whether the government has established removability by clear, unequivocal, and convincing evidence.
For respondents and their representatives, this ruling increases the risk of in absentia removal in cases involving a defective NTA. A respondent who received a separate hearing notice with complete date, time, and location information has effectively received the notice Campos-Chaves requires. Failing to appear — even where the original NTA was noncompliant — will not protect against removal if the respondent does not appear and raise the NTA objection on the record.
Practitioners should also note the Board’s procedural reminder about oral decisions. Immigration Judges must clearly delineate oral rulings from the surrounding transcript. This requirement affects how hearing records are maintained and reviewed on appeal.
In cases currently pending before an Immigration Judge where a noncompliant NTA was previously used to justify termination, DHS may seek reopening in light of this precedent. Respondents and their counsel should evaluate pending cases for exposure and take appropriate steps to appear and preserve any available defenses.
How Immigration Professional Association Can Assist
Matter of Lopez-Orellana directly affects individuals who are in removal proceedings or who may have a prior in absentia order entered against them. Immigration Professional Association provides protection against removal and deportation defense services for individuals navigating these complex procedural challenges. The firm also handles asylum applications and humanitarian and special related immigration matters, including cases where prior procedural defects may affect current status.
Respondents and practitioners seeking context on how recent BIA decisions interact with broader enforcement trends may find value in IPA’s analysis of the new BIA appellate rule to fight immigration backlogs and the firm’s coverage of immigration processing and enforcement under President Trump.
This decision narrows a procedural defense that some respondents and practitioners have relied upon and signals that courts will prioritize completing removal proceedings over terminating them on technical grounds. Individuals with pending removal cases, prior in absentia orders, or questions about their procedural rights should consult with a qualified immigration professional promptly. Contact Immigration Professional Association at visainamerica.com/contact/ to discuss your case.
