PDX, Portland, Oregon, United States of America, June 29, 2019: Protest in downtown Portland. Police officers, sheriffs, the Department of Homeland Security, antifa, and Proud Boys meet in the street. (Shutterstock)
By Rebekah Wolf, Immigration Impact
Thousands of immigration court cases have been dismissed this year for an astonishing reason: U.S. Customs and Border Protection (CBP) has failed to file the most basic paperwork with the courts.
According to a report released last week by the Transactional Records Access Clearinghouse (TRAC) of Syracuse University, tens of thousands of cases across the country were being closed over CBP’s failure to complete what it called a “ministerial task.” TRAC received data through Freedom of Information Act requests that showed judges are closing these cases because the Notice to Appear (NTA)—the summons that initiates a court proceeding—was not being filed with the courts.
There are generally two steps for an immigration court removal proceeding to be initiated against a noncitizen. First, a Department of Homeland Security (DHS) official determines that they believe someone is in the United States unlawfully. When this occurs at or near the border, generally CBP makes the determination that the person is inadmissible and should be removed. CBP will issue an NTA to the noncitizen, which contains the reasons why the official has determined they do not have permission to be in the United States and orders them to appear at a particular immigration court at a certain time and date.
Then, as a purely administrative step, CBP must file the NTA with the court system itself through an online portal. CBP has skipped this second step in thousands of cases, resulting in the cases themselves being dismissed.
There has been a dramatic increase in cases being closed for this reason in the last year. According to TRAC, this seems to coincide with when CBP itself was given the responsibility of filing the NTAs with the courts, as opposed to ICE. However, around the same time the process was also centralized, using the relatively new electronic EOIR Courts and Appeals System (ECAS) filing system, which should make filing the NTAs a simple process.
The effects on the courts vary widely. The Miami “Dedicated Docket” set up for asylum seekers arriving from the border has had an extraordinary 81% of cases so far in 2022 closed due to the lack of a filed NTA. While not universal, it seems that the Dedicated Dockets are more likely to be affected than the regular dockets, even in the same city.
The Dedicated Dockets program began in May 2021. The departments of Homeland Security and Justice promoted the program as a way to speed up immigration court cases. Dedicated Dockets are in 10 cities and 11 courts (there are two in New York City). Besides Miami, the Boston Dedicated Docket had 62% of its cases closed for lack of a filed NTA, with Denver, New York, El Paso, and Los Angeles Dedicated Dockets all over the national average for closed cases as well. Yet other courts in New York, for example, had far fewer cases closed for this reason.
Because the data only shows the court where the case was closed, but not which CBP offices are involved, TRAC was unable to determine if there was a pattern of specific CBP field offices responsible. Whether it is one field office or several that are responsible, it is clear that CBP is failing to complete a basic administrative task that is affecting tens of thousands of people this year.
The failure to file the NTA has caused enormous confusion amongst noncitizens and their counsel. It can also interfere with a noncitizen’s appropriate and timely processing of an application. While for some, the closure of a removal proceeding may be welcome, for others it can delay requests for asylum and other relief. The noncitizen is being given the NTA, making it appear to them and their attorneys that a removal case has begun—and yet the case may not actually have started.
CBP’s failure to file NTAs also affects where an application should be filed. For asylum seekers, it can be the difference between a defensive or affirmative application. It may also lead to large delays on applications for Employment Authorization Documents for asylum seekers, whose EAD applications are tied to when their asylum applications are filed. Because of the confusion as to whether there is an open immigration court case, asylum seekers and attorneys are having to file applications in one place—such as U.S. Citizenship and Immigration Services—only to have it transferred to the courts, with USCIS itself finally filing the NTA in the court system.
The report revealed a huge waste of time and money, with noncitizens not knowing whether they need to show up for court and courts closing cases that should otherwise be adjudicated. It is yet another example of our profoundly broken immigration system.