The Executive Office for Immigration Review (EOIR), the DOJ component with jurisdiction over the immigration courts, has released its data on new cases filed with the nation’s 559 immigration judges in FY 2021, which ended on September 30. Surprisingly, as the number of illegal migrants apprehended at the Southwest border hit an all-time high last fiscal year, the number of new aliens placed into removal proceedings hit a six-year low. Here are some guesses as to why.
The Disaster at the Southwest Border and New Immigration Court Cases
To recap the dismal apprehension numbers in FY 2021, Border Patrol agents at the Southwest border apprehended more than 1.659 million aliens last fiscal year. Of those, just over 1.040 million were quickly expelled from the United States pursuant to orders issued by the CDC under Title 42 of the U.S. Code in response to the Covid-19 pandemic.
Subtracting out those Title 42 cases leaves almost 619,000 illegal migrants who were apprehended at the Southwest border and processed for removal under the Immigration and Nationality Act (INA), the vast majority of whom should have been placed into removal proceedings in FY 2021.
EOIR reports, however, that it received fewer than 236,000 new cases in FY 2021 — 36 percent fewer new cases as were filed in FY 2020, when Southwest border apprehensions were less than a quarter of what they were last fiscal year.
How Aliens Are Placed into Removal Proceedings
By regulation, removal proceedings commence and jurisdiction over those proceedings is vested with immigration judges when a Notice to Appear (NTA) is filed with the immigration court.
An NTA is the charging document in removal proceedings, and the requirements for those documents are set forth in section 239 of the INA. Like indictments in criminal cases, NTAs provide aliens with the allegations and charges that have been filed against them, as well as the time, place, and date of their removal proceedings.
What Border Patrol Did with the Aliens It Processed Under the INA in FY 2021
Of the nearly 619,000 illegal migrants who were apprehended at the Southwest border and processed under the INA in FY 2021, almost 249,000 of them were issued Notices to Appear (NTAs) and released — despite the fact that the INA requires all of them to be detained.
Nearly 190,000 other aliens who were apprehended by Border Patrol at the Southwest border in FY 2021 were issued either warrants of arrest and/or NTAs and detained, and more than 82,171 were processed for expedited removal under section 235(b)(1) of the INA.
Expedited removal allows DHS to quickly removal illegal migrants apprehended at the border, unless they claim a fear of persecution if returned. In that case, aliens are sent for “credible fear” interviews with asylum officers at USCIS, to determine whether they may be eligible for asylum.
While CBP’s Office of Field Operations (which makes apprehensions at the ports of entry) has a breakdown of subjects who claimed credible fear in expedited removal (there were 957 such claims at OFO in FY 2021), the agency’s Border Patrol component does not. Fortunately, USCIS does publish statistics on credible fear claims and reports that it received 58,705 such claims in FY 2021.
Of those, nearly 30,000 aliens were found to have a credible fear, and by law, they also should have been placed into removal proceedings before immigration judges to apply for asylum.
Finally, there were 47,671 aliens apprehended by Border Patrol at the Southwest border and processed under the INA whose status is “Other”. This category is described as “subjects that do not yet have a final disposition at the time the data was collected or subjects processed under the visa waiver program, turned over to, paroled, etc.”
Given the fact that more than half of those “Other” cases were apprehended in September, those aliens will be either issued Notices to Appear or placed into expedited removal proceedings.
Not counting those “Other” cases and taking just the aliens who received NTAs and who USCIS indicates received positive credible fear determinations, more than 468,000 aliens apprehended at the Southwest border in FY 2021 who were processed under the INA should have been placed into removal proceedings before immigration judges at EOIR last fiscal year.
The problem is that, as noted, EOIR reports that it received fewer than 253,700 new cases in FY 2021, the lowest number of initial case receipts since FY 2016, when the immigration courts added 228,449 new cases. That leaves a difference of more than 214,000 aliens processed after apprehension under the INA who should have been placed into removal proceedings but weren’t.
Reasons for the Discrepancy Between Apprehensions and New Cases
It is unclear why those illegal migrants have not been put on immigration judges’ dockets and neither DHS nor DOJ has been forthcoming with any clarification. They have printed the statistics, but they have not explained them.
At least part of the discrepancy likely lies in the handling of cases involving unaccompanied alien children (UACs).
In FY 2021, Border Patrol apprehended more than 120,000 UACs at the Southwest border who were not from Canada or Mexico (OTMs). Fewer than 1,200 in FY 2021 were expelled under Title 42, almost all in October and November 2020.
By law, those OTM UACs processed under the INA are to be handed over by DHS to the Department of Health and Human Services for placement with sponsors in the United States, as I explained on April 26.
UACs not expelled under Title 42 are also supposed to be placed into removal proceedings, but an exception in the law in section 208(b)(3)(C) of the INA grants simultaneous jurisdiction over their asylum claims with asylum officers, who again are in USCIS.
Thus, it is possible that the administration has decided to hold off on filing NTAs in those UACs’ cases until after their asylum claims are denied, to give them a fresh shot at asylum from the immigration court. If that is the policy, it has not been publicly announced, but such a policy would slow the removal of UACs who lack valid asylum claims for years, if not longer.
Then, there is the issue of immigration court shutdowns in response to the Covid-19 pandemic. EOIR closed most non-detained courts at the outset of the pandemic in late March and was inexplicably slow in reopening them thereafter. It was not until July 6 that all immigration courts were reopened for non-detained hearings, and even then, many only on a limited basis.
With few if any non-detained immigration courts open, there would have been only limited staff available to enter new cases into the EOIR docketing system. If Border Patrol issued NTAs to illegal migrants with hearing dates on them that were not scheduled until months or years in the future, their cases are likely not a priority for processing by the courts — at least in the short term.
Finally, there is always some lag time between the issuance of NTAs and their entry into the EOIR docketing system, even in detained cases. With such a massive number of new NTAs, and limited staff to put them on the dockets, that lag time has undoubtedly gotten worse.
Is the Biden Administration Deliberately Delaying Removal Proceedings?
All of this analysis, however, gives the Biden administration the benefit of the doubt, and perhaps unduly so.
As I explained on October 4 and November 5, DHS Secretary Alejandro Mayorkas has placed ICE on “probation” (in the words of the Washington Post), and he has been gradually limiting the universe of removable aliens whom ICE officers are actually allowed to apprehend, and the places it can catch them.
All of this has created a de facto amnesty for almost all aliens illegally present in the United States, in a non-enforcement regime of questionable legality. These actions suggest that DHS could also be inclined to slow walk or (worse) shelve NTAs that have already been served on illegal migrants apprehended at the border, although recent entrants are one of the few remaining “priorities” for enforcement.
An Opportunity to Find Out the Truth
Secretary Mayorkas is appearing before the Senate Judiciary Committee today, and senators may want to ask him about the discrepancy between the glut of Border Patrol apprehensions and the dearth of new removal cases that are being filed with the immigration courts. That said, given the unfolding disaster at the Southwest border and Mayorkas’s current ICE enforcement restrictions, there are a lot of immigration-related issues that the secretary will have to answer for.