Matter of Viera-Garcia and Ordonez-Viera, 28 I&N Dec. 223 (BIA 2021)

The Board issued a precedential decision today in Matter of Viera-Garcia and Ordonez-Viera, 28 I&N Dec. 223 (BIA 2021).   The summary of the case is as follows: Where a notice to appear fails to specify the time or place of a respondent’s initial removal hearing, the subsequent service of a notice of hearing specifying this information perfects the notice to appear and ends the accrual of physical presence for purposes of voluntary departure at the conclusion of removal proceedings pursuant to section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(b) (2018).  It is noteworthy that this decision does not apply in apply in the Third or the Tenth Circuits.

"We recognize that the United States Court of Appeals for the Third Circuit and Tenth Circuit have not adopted the two-step notice process we outlined in Mendoza-Hernandez and Capula-Cortes. See Banuelos v. Barr, 953 F.3d 1176, 1178–79 (10th Cir. 2020); Guadalupe v. Att’y Gen. U.S., 951 F.3d 161, 165 (3d Cir. 2020). In those circuits only, a notice to appear must comply with all the statutory requirements of section 239(a) of the Act before its service will end the period of physical presence under section 240B(b)(1)(A) of the Act."  Id. at 226 fn 2.