200,000 Immigration Court Cases Dismissed Because DHS Failed to File Paperwork

Published Mar 20, 2024

Approximately 200,000 deportation cases have been thrown out by Immigration Judges since the start of the Biden administration because the Department of Homeland Security (DHS) hadn’t filed the required Notice to Appear (NTA) with the Court by the time of the scheduled hearing. Without a proper filing, the Court lacks jurisdiction to hear the case and the immigrants, often asylum seekers, lack a way to move their case forward.

These large numbers of dismissals and what then happens raise serious concerns. This report brings DHS’s record up to date through February 2024 with the latest available data. It first examines whether the Department of Homeland Security (DHS) has been improving its performance so far during the current fiscal year. Next, using Court records that had not previously been released, it then traces whether DHS officials issue and file new NTAs for these same individuals to rectify their original filing failures.

Dismissals Because No NTA Filed

DHS’s duty to file NTAs in Immigration Court is an essential step in the immigration enforcement process. Removal cases are initiated when the Department of Homeland Security (DHS) issues a Notice to Appear (NTA) to a noncitizen, including asylum seekers, and then files that NTA in Immigration Court. The NTA alleges that the agency has reason to believe that the individual can and should be deported, lists these reasons, and asks an Immigration Judge to issue a removal order. While Immigration Judges handle a variety of case types, not all of which require an NTA, removal cases account for the vast majority of cases. Fully 97 percent of the over 1 million Court cases already initiated this fiscal year (October 2023 – February 2024) have been removal cases.[1] Thus, almost all Immigration Court cases are removal cases for which DHS must file an NTA for the case to go forward.

For the Immigration Judge to have jurisdiction to hear the case, DHS must file the NTA with the Court. Ten years ago, DHS’s failure to file an NTA before the scheduled first hearing was rare.[2] However, the frequency increased once Border Patrol agents and other DHS personnel were given access to the Immigration Court’s Interactive Scheduling System (ISS). Using ISS, agents can directly schedule this initial hearing (i.e., a master calendar hearing) at the Immigration Court at the time of issuing an NTA (even though this is before the NTA is filed) rather than waiting for the Court to schedule a hearing.[3] For NTAs issued at the border, the NTA is generally created at the same time that the hearing is scheduled and a copy of the NTA is given to the asylum seeker or other noncitizen with the scheduled hearing date, time, and location listed on the NTA.

DHS’s relatively recent access to the Court’s scheduling system created a new administrative problem: DHS employees could schedule Immigration Court hearings sooner than the agency could file the NTA, and this could have negative consequences for both the Immigration Court and the immigrant respondents themselves. Indeed, this is what happened. DHS has been able to block off the Court’s valuable limited time by scheduling hearings for cases that do not legally exist, because DHS has not filed the required NTA before the hearing. With Immigration Judges staring down 3.5 million pending immigration cases, every wasted hearing is a hearing that could have moved another case forward or resolved it.

Additionally, immigrants, usually asylum seekers these days, who then show up to scheduled hearings only to find out they have no case after all are left without any means of making an asylum claim. To actually move forward and gain a Court hearing on their asylum claim, immigrants need to have a case before the Immigration Court. Also, 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. Indeed, the lack of clarity about their case may only add to their sense of legal limbo rather than alleviate it.

Nationally “No NTA Dismissals” Declining

There is some good news to report about DHS performance. The number as well as the rate of these dismissals has recently been dropping. As previously reported, there was a rapid increase in their numbers through FY 2022. During FY 2022, monthly dismissals averaged over 6,600. Last year, during FY 2023, numbers fell slightly to an average of 5,700 each month. However, this year so far during FY 2024 monthly average dismissals have fallen to 2,100 – down 68 percent from their peak during FY 2022.

During this same time, Court filings in general have rapidly increased. During the 41 months spanning the start of FY 2021 to the end of February 2024, nine (9) percent of all new cases were dismissed for failure to file a timely NTA with the Immigration Court. But during the first five months of the current fiscal year (October 2023 – February 2024), this rate has fallen to just over one (1) percent.[4] See Table 1 and Figure 1. Thus, the number of cases dismissed have not only fallen but their rates of decline have been even more dramatic given the increase in total new removal cases.

Dismissals for Lack of NTA Vary Markedly by Hearing Location

Examining dismissals by Immigration Court hearing locations show that the problem of no NTA dismissals varied greatly by geography. Apart from IAD designated hearing locations apparently dealing with problematic filings, the Houston, Texas, Immigration Court and the Court’s Dedicated Docket in Miami, Florida, are clear standouts, with fifty (50) percent or more of their new cases dismissed for this reason since FY 2021.

Over the same period, the El Paso Dedicated Docket, and the Los Angeles Dedicated Docket have dismissal rates of 30 percent and 26 percent, respectively. Dedicated Docket (DD) cases, of course, have an expedited timeline so initial hearings may be scheduled quickly. However, other DD locations have below average dismissal rates from DHS’s failure to file a timely NTA. In Seattle, Washington, for example, that DD location had only a 2 percent dismissal rate during this same period, The Newark, New Jersey, DD location had a 3 percent dismissal rate, and the San Francisco DD location’s dismissal rate was 4 percent – less than half of even the overall national average for proceedings. For figures for these and other hearing locations see Table 2 at the end of this report.

Unfortunately, TRAC has still not been able to obtain information on just which agency created and issued these NTAs.[5] While we suspect that most are created by Border Patrol agents, and thus should be filed with the court by Customs and Border Protection (CBP), we don’t know if the problem is concentrated there, and if so, which sectors and specific locations are most responsible. The Court also receives NTAs from ports of entry, that are under the Office of Field Operations (OFO), as well as from two other DHS agencies: Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS). No information to our knowledge has been publicly released by DHS on why and where these problems occur.

Resolving Cases with Unfiled NTAs

What happens to cases that are dismissed due to lack of filing? To rectify the Court’s dismissal, DHS cannot generally restart the case without issuing a brand new NTA. This then restarts removal proceedings under a new file number. Except for the parties involved, the public has not had a way of knowing that a new case file number was created to rectify DHS’s earlier error. This is because the case is now tracked under a brand-new file number without any reference back to the earlier case in the information the Immigration Court has previously made public.

To address this unique research challenge, TRAC obtained Court records covering the last ten years [FY 2014 – FY 2024 (thru February)] which allowed us to match up new removal proceedings with past removal proceedings that were dismissed for lack of an NTA. Using these data, TRAC has now been able to document that only around a quarter of these individuals who had their cases dismissed for lack of a filed NTA had their Court cases restarted within one year by DHS issuing a new NTA.[6] This suggests that in three-quarters of these 200,000 cases the immigrant was effectively left in legal limbo without any way to pursue asylum or other means of relief. See Figure 2.

According to Court records, rates for reissuing NTAs have not materially improved over this span of time. Apart from FY 2020, rates for reissuing NTAs have barely crept upward. The rate at which new NTAs were issued within a year was 23 percent during FY 2019, and 24 percent during FY 2021, 25 percent during FY 2022, and 27 percent in FY 2023. See earlier Table 1. During FY 2020, they dropped even lower to just 14 percent. This, no doubt, was in large part a result of the disruptions produced with the initial partial government shutdown.

DHS sometimes needs more than a second try to get it right. TRAC’s analysis found that on 1,913 occasions, the issuance of a new NTA was dismissed yet again because the second filing was also untimely. That is, neither the initial NTA nor the replacement NTA had been timely filed with the Court at the time of the scheduled hearings.

Table 2 also shows rates for rectifying these dismissals have varied across Immigration Court hearing locations.[7] For example, despite their sharply higher dismissal rates, the DD hearing locations in El Paso and Los Angeles also have much higher refiling rates of 68 percent and 77 percent, respectively. In contrast, despite a dismissal rate of 50 percent, the DD hearing location in Miami recorded an average refiling rate within a year of just 25 percent. Refiling rates by DHS at Baltimore, Maryland’s hearing location was just 2 percent.

Conclusion

This report provides an incomplete picture. Troubling is the almost total lack of transparency on where and why these DHS failures occurred. Equally troubling is the lack of solid information on what happened to these many immigrants when DHS never rectified its failure by reissuing and filing new NTAs to restart their Court cases.