News Report: ICE Issuing "Fake" Hearing Dates

By Andrew R. Arthur on September 17, 2018

The Dallas Morning News reported Sunday that U.S. Immigration and Customs Enforcement (ICE) has been placing so-called "fake dates" on Notices to Appear (NTAs), in an apparent attempt to comply with the Supreme Court's recent decision in Pereira vs. Sessions. That article states:

The orders to appear [sic] are not fake, but ICE apparently never coordinated or cleared the dates with the immigration courts. It's a phenomenon that appears to be popping up around the nation, with reports of "fake dates" or "dummy dates" in Dallas, Los Angeles, San Diego, Chicago, Atlanta and Miami.

I described that Supreme Court decision in a July 2018 post captioned "SCOTUS Sets Up Potential Immigration Train Wreck", and detailed a recent Board of Immigration Appeals (BIA) decision (Matter of Bermudez-Cota) that attempted to respond to that Supreme Court precedent in a September 2018 post captioned "BIA Issues Notice to Appear Guidance after Pereira".

As I explained in the September post:

At issue in Pereira was whether an alien who had been served with an NTA that did not contain the time and date of an initial removal hearing was barred from applying for cancellation of removal for nonpermanent residents under section 240A(b)(1) of the INA.

Among other requirements, to be eligible for cancellation of removal under that provision, an alien must have "been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of" that application. An alien who is granted cancellation of removal receives lawful permanent residence.

Section 240A(d)(1) of the INA (also known as the "stop-time rule") contains special guidance relating to continuous physical presence. Specifically, for purposes of cancellation of removal under section 240A(b)(1) of the INA, such physical presence is deemed to end (with limited exceptions) "when the alien is served a notice to appear under section 239(a)" of the INA.

Section 239(a)(1) of the INA states, in pertinent part:

In general.-In removal proceedings under section 240, written notice (in this section referred to as a "notice to appear") shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien's counsel of record, if any) specifying [listed items related to the case].

Among the items related to the case that are specified in section 239(a)(1) of the INA are "[t]he time and place at which the proceedings will be held," which ... was not included in Pereira's NTA. As the Court stated: "Instead, it ordered him to appear before an Immigration Judge in Boston 'on a date to be set at a time to be set.'" (Emphasis in original).

The Supreme Court in Pereira held: "A putative notice to appear that fails to designate the specific time or place of the noncitizen's removal proceedings is not a 'notice to appear under section [239(a) of the INA],' and so does not trigger the stop-time rule." In making this finding, the Court admitted that it was only answering that "narrow[] question."

Despite this fact, I noted in my July post that: "A much larger issue, however, would be if Pereira were applied to all cases involving NTAs that do not include the time and place of the hearing." If that were the case, tens of thousands of NTAs would be invalid, given the fact that, as the Court noted, almost 100 percent of the NTAs issued over the last three years omitted the time and date of the proceedings.

The BIA in Matter of Bermudez-Cota attempted to address this issue, holding that an NTA that does not contain the time and place of an alien's initial removal hearing will nonetheless vest an immigration court with jurisdiction over those removal proceedings, so long as the immigration court subsequently sends a notice of hearing to the alien-respondent that contains this information.

The NTAs that were described in the Dallas Morning News article appear to have been issued before that BIA decision was handed down on August 31, 2018.

Viewed in the best light to ICE, the agency, in fact (at least in some cases), issued what it deemed to be good hearing dates in those cases, however the NTAs were not input in a timely manner by the immigration courts in order to allow those cases to appear on the courts' dockets.

Notably, however, the Dallas Morning News reported: "Some immigrants have even been given documents ordering them to be in court at midnight, on weekends and on a date that doesn't exist: Sept. 31." This could have been an oversight on the part of the issuing ICE agent or officer. Alternatively, it could reflect an attempt to comply with Pereira with the expectation that those NTAs would be received by the immigration courts and input into the immigration courts' system in a timely manner. In this latter scenario, ICE would have expected the immigration courts to subsequently issue valid dates. If that were the case, it plainly did not happen.

Many, if not most of those cases would involve the issuance of NTAs to aliens whom ICE planned to release fairly quickly. In such a situation, there would not be sufficient time to coordinate with the courts to identify specific docket dates for the respondents' removal proceedings.

In any event, ICE and the immigration courts need to quickly come up with a plan that will enable immigration officers who are issuing NTAs to aliens who are to be released with valid dates, times, and places for their immigration proceedings.