According to a report from the Transactional Records Access Clearinghouse (TRAC), an organization that provides comprehensive, independent, and nonpartisan information about federal enforcement, staffing, and spending, the DHS has been responsible for the dismissal of approximately 200,000 deportation cases. The reason? A failure to file the required Notice to Appear (NTA) with the court by the time of the scheduled hearing.
The NTA is a crucial document that initiates a case with the immigration court, outlining the reasons why the DHS believes an individual should be deported. For the immigration judge to have jurisdiction over the case, the DHS must file the NTA with the court. However, the report reveals that the DHS has been falling short in this area.
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The report explains that a decade ago, it was rare for the DHS to fail to file an NTA before the scheduled first hearing. However, the frequency of such occurrences increased when Border Patrol agents and other DHS personnel were given access to the Immigration Court’s Interactive Scheduling System (ISS). With this system, agents can directly schedule the initial hearing at the Immigration Court at the time of issuing an NTA, rather than waiting for the court to schedule a hearing.
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This new system, however, has created an administrative problem. DHS employees can schedule Immigration Court hearings sooner than the agency can file the NTA, which can have negative consequences for both the Immigration Court and the immigrant respondents. The DHS has been able to block off the Court’s valuable limited time by scheduling hearings for cases that do not legally exist, because the NTA has not been filed before the hearing.
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This issue is particularly concerning given the current backlog of immigration cases. With Immigration Judges facing 3.5 million pending immigration cases, every wasted hearing is a hearing that could have moved another case forward or resolved it.
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The report also highlights the impact of this administrative issue on immigrants, particularly asylum seekers. These individuals, who often show up to scheduled hearings only to find out they have no case, are left without any means of making an asylum claim. Until a formal asylum petition is filed, asylum seekers cannot generally obtain work permits. These dismissals therefore potentially extend the time and difficulties that individuals, and their families, face in securing food, shelter and other essentials while waiting for a work permit.
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The report includes data on cases dismissed due to the NTA not being on file dating back to 2014. Prior to 2018, the number of cases dismissed due to no NTA being filed was minimal — 100-200 per year. However, there was a significant increase in 2018, with over 700 cases dismissed. This number continued to rise in 2019 and 2020, reaching 8,192 and 6,482, respectively.
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The situation worsened in 2021, with 33,802 cases dismissed due to unfiled NTAs, peaking at 79,592 in 2022, and clocking in at 68,869 in 2023. As a percentage of cases filed, dismissals due to unfiled NTAs jumped from three percent in 2020 to over 10 percent in 2021.
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These figures raise serious questions about the DHS's handling of immigration court cases. The disconnect between NTAs issued and filed must have become noticeable sometime late in the Trump administration and absolutely clear-cut by a year into the Biden administration. The question remains: why has no workable solution been found to speed up the DHS filing of NTAs?
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The report also highlights the increasing number of new immigration court cases, particularly from 2021 onwards. This suggests that the current administration's policies are overwhelming the system. The notion of having "the adults back in charge" seems to hold little weight if they are unable or unwilling to address even basic administrative issues.
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