In a decision dated May 30, 2019, an immigration judge terminated removal proceedings on the basis that the Notice to Appear (Form I-862) served on the respondent was defective. DHS appealed from that decision, and the BIA requested and received supplemental briefs from the DHS and amici curiae. The BIA sustained DHS’s appeal, reinstated the proceedings, and remanded the record to the immigration judge, ruling:
The absence of a checked alien classification box on a Notice to Appear (Form I-862) does not, by itself, render the notice to appear fatally deficient or otherwise preclude an Immigration Judge from exercising jurisdiction over removal proceedings, and it is therefore not a basis to terminate the proceedings of an alien who has been returned to Mexico under the Migrant Protection Protocols.
Matter of Herrera-Vasquez, 27 I&N Dec. 825 (BIA 2020)