(a) Notice to Appear
Removal proceedings begin when the Department of Homeland Security files a Notice to Appear (Form I-862) with the immigration court after it is served on the respondent. See 8 C.F.R. §§ 1003.13, 1003.14. Individual DHS offices, including USCIS and ICE OPLA field offices, are not required to file a Notice to Appear with any particular immigration court, but EOIR maintains an administrative control court list as a guide for where DHS may file charging documents and which immigration courts generally have jurisdiction over particular DHS offices or detention locations. See Chapter 3.1(a)(1) (Administrative control courts). The Notice to Appear, or “NTA,” is a written notice to the respondent which includes the following information:
- the nature of the proceedings
- the legal authority under which the proceedings are conducted
- the acts or conduct alleged to be in violation of the law
- the charge(s) against the respondent and the statutory provision(s) alleged to have been violated
- the opportunity to be represented by counsel at no expense to the government
- the consequences of failing to appear at scheduled hearings
- the requirement that the respondent immediately provide the Attorney General with a written record of an address and telephone number
The Notice to Appear replaces the Order to Show Cause (Form I-221), which was the charging document used to commence deportation proceedings, and the Notice to Applicant for Admission Detained for Hearing before an Immigration Judge (Form I-122), which was the charging document used to commence exclusion proceedings. See 8 C.F.R. § 1003.13.
(b) Failure to Prosecute
On occasion, an initial hearing is scheduled before the Department of Homeland Security (DHS) has been able to file a Notice to Appear with the immigration court. For example, DHS may serve a Notice to Appear, which contains a hearing date, on a respondent, but not file the Notice to Appear with the court until sometime later. Where DHS has not filed the Notice to Appear with the court by the time of the first hearing, this is known as a “failure to prosecute.” If there is a failure to prosecute, the respondent and counsel may be excused until DHS files the Notice to Appear with the court, at which time a hearing is scheduled.