Over 63,000 DHS Cases Thrown Out Of Immigration Court This Year
27 October 2022What happened? Why did Immigration courts dismissed more than 60000 immigration cases this year?
When a person is placed in removal proceedings, a notice to appear is issued. Many receive such notices when they ask for asylum at the border of the United States for example, or after an asylum interview if they are referred to immigration court. By law, the Department of Homeland Security (DHS) must file a "Notice to Appear" (NTA) with the immigration court before removal proceedings can begin. An NTA is a charging document. In accordance with the law, it outlines the alien's rights, outlines the particular accusations of removability and the factual allegations underlying those charges, and gives the alien (considered a "respondent" in removal proceedings) information about the proceedings: where and when a non citizen has to appear before the judge. So recently, such notices were issued and served but never filed with immigration courts.
Two months ago, the absence of valid “Notice to Appear” (NTA) filings by security officials of the Department of Homeland, particularly Border Patrol agents, resulted in the dismissal of 63,586 cases by Immigration court judges. These cases were dismissed as they could not proceed in the absence of a filed NTA. This indicates that within the past annual accounting period, one out of every six court cases was dismissed for this reason.
Nine years ago, the number of case closures that were dismissed because no NTA was filed despite being scheduled for a hearing was minimal. Statistics from the Transactional Records Access Clearinghouse (TRAC) at Syracuse University show a decrease in the number of dismissed cases between 2013 and 2017 and a rapid increase between 2018 and 2022. The figures show: 355 in 2013; 225 in 2014; 41 in 2015; 11 in 2016; 84 in 2017; 505 n 2018; 4,686 in 2019; 5,952 in 2020; 15,244 in 2021; 47,330 in 2022.
According to reports (TRAC), before Border Patrol agents were permitted to use the Immigration Court's Interactive Scheduling System (ISS), this failure to file an NTA rarely occurred. Adapting the use of ISS, enabled agents to directly schedule the initial hearing (also known as a master calendar hearing) in the Immigration Court. During this process, the actual NTA is created simultaneously, and a copy is delivered to the asylum seeker with a note on the NTA indicating the location and time of their court appearance.
As a result, this process simply requires Customs and Border Protection (CBP) to ensure that the court also obtains a copy of the NTA. It was expected that the process would become simple and speedy thanks to the use of the Court's ECAS e-filing system. However, the most recent Court records, obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University through a series of Freedom of Information Act (FOIA), indicate that so far it has not been the case.
Is there an Improvement?
There are no indications that the amount of these occurrences is decreasing. So far, there has been a steady 35% increase in the number of dismissed cases between October 2020, to October 2022. However, it can be said that due to an increase in the number of new court cases, the number of dismissed because no NTA was filed has not increased. As a result, the percentage of cases dismissed has decreased.
Regrettably, these dismissals account for a significant number of cases. Judges dismissed around 5,200 complaints in September 2022, which is about the same percentage as the monthly average of this year and represents 13% of all submitted claims in September. These layoffs are significantly greater than in the first few months of this fiscal year, despite being below their peak of 7,200 in April 2022. This goes to show that there is a significant lack of connection between CBP employees who are in charge of submitting a copy of the NTA to the Court and CBP agents who are responsible for documenting new cases and scheduling hearings through the ISS system.
Sad to say that the time of the Court is being wasted horribly by this, as well as that of the immigrant. When an immigrant (and maybe their attorney) attends hearings, only to have their case dismissed by the Immigration judge because it has not been officially filed with the court, it can be very frustrating, and troubling.
What's Next?
The question of what next has continued to plague the minds of everyone. Seeing as the increasing number of dismissed cases presents a huge challenge to immigrants, surely there must be a way to overcome this problem. The alternative solutions to this problem might constitute an external intervention from DHS.
Will DHS decide to file a new NTA to make up for its error? or as an alternative, will it choose to reopen the previous case and submit the original NTA? If it chooses neither of these, does it then leave the immigrant hanging? For many immigrants, it is important to get their day in court and be able to apply for immigration benefits such as asylum for example.
It remains hope of immigration community that the errors will be rectified and immigrant’s due process rights be upheld.