Reports: More than 63,500 Cases Dropped Because DHS Didn’t File Charges

While a report claims the border chief is literally asleep at the wheel

By Andrew R. Arthur on October 19, 2022

The Transactional Resources Access Clearinghouse (TRAC) at Syracuse University reported on October 17 that more than 63,500 removal cases in immigration court have been dismissed in FY 2022 because DHS — primarily Border Patrol agents — had failed to file charging documents. That news comes on the heels of a Politico expose airing complaints that CBP Commissioner Chris Magnus is “unengaged in his job” and has fallen asleep during meetings. While we’ve long known that the administration’s border policy is bad, its performance is — if anything — worse.

Notices to Appear. By regulation, removal proceedings commence when DHS files a “Notice to Appear” (NTA) with the immigration court.

The NTA is a charging document, similar in nature to a criminal indictment. Pursuant to statute, it provides the alien (deemed a “respondent” in removal proceedings) with information related to the proceedings, sets out the alien’s rights, and lists the specific charges of removability and the factual allegations supporting those charges. I will return to those statutory requirements below.

Often, the sole issue in removal proceedings is whether DHS has properly served the alien with the NTA. Pursuant to section 240(b)(5) of the INA, an immigration judge must order a respondent who fails to appear at a scheduled removal proceeding removed in absentia, provided DHS proves the respondent has been served with the NTA.

If DHS fails to file the NTA with the immigration court, however, that’s simple malpractice. As TRAC explains, however, it has become more common since:

Border Patrol agents were given the authority to use the Immigration Court’s Interactive Scheduling System (ISS). Using ISS, the agents can directly schedule the initial hearing (i.e. a master calendar hearing) at the Immigration Court. Supposedly, the actual NTA is created at the same time, and a copy given to the asylum seeker or other noncitizen with the scheduled hearing location and time they are to show up in Court noted on the NTA.

It continues:

Thus, the process only requires that CBP actually follow up with the ministerial task of seeing that the Court also receives a copy of the NTA. With the implementation of the Court’s ECAS system of e-filing, this should have made the process quick and straightforward. But this hasn’t occurred for many cases as the latest case-by-case Court records show.

Time, Place, and Date of the Initial Master Calendar Hearing. As the foregoing suggests, NTAs are not just another government form. Rather, they are so crucial to the removal process that Congress’ statutory NTA requirements have been subject to Supreme Court scrutiny, most recently in a case pitting two Georgetown Prep graduates, Justices Neil Gorsuch and Brett Kavanaugh, in a grammatical throwdown for the ages.

That case was Niz-Chavez v. Garland, and the decision of the Court there (authored by Justice Gorsuch) likely sowed the seeds that led to this latest DHS debacle.

At issue was whether the alien (who had entered illegally) accrued the 10 years’ physical presence in the United States he needed to qualify for “cancellation of removal and adjustment of status for certain nonpermanent residents” under section 240A(b) of the INA (42B cancellation). If a respondent is granted 42B cancellation, he or she receives a green card.

By statute, however, service of the NTA on the alien cuts off this period of physical presence under the “stop-time” rule. The problem in Niz-Chavez’s case was that his NTA did not include the time, place, and date for his first removal hearing — known colloquially as the “Initial Master Calendar” — which is akin to an arraignment in a criminal proceeding.

Section 239(a)(1)(G) of the INA requires DHS to provide “written notice (in this section referred to as a ‘notice to appear’)” of the time, place, and date of the Initial Master Calendar, but for years there was confusion as to whether that scheduling information had to be included in the NTA, or whether it could subsequently be provided to the alien by the immigration court after the case was scheduled.

Consequently, an untold number of NTAs (including Niz-Chavez’s) simply stated that the time and place of the hearing would be provided to the alien. Justice Garland, writing for the majority, held that an NTA that did not provide that information directly did not trigger the stop-time rule.

Note that Niz-Chavez did later receive that scheduling information and showed up for his Initial Master Calendar and all his subsequent hearings. The Court’s decision was a triumph of style over substance, but under our constitutional system, even a picky Supreme Court decision must be obeyed.

At the time, I warned that aliens with NTAs that omitted the time, place, and date of their Initial Master Calendar hearings would use the Court’s opinion to challenge not only their ineligibility for 42B cancellation, but also the legality of their final orders of removal, and that’s exactly what has happened.

Most recently, in Matter of Lamparra, the Board of Immigration Appeals has held that a “noncompliant” NTA can still trigger an in absentia order of removal, provided the respondent subsequently received an Initial Master Calendar hearing notice, but failed to appear.

That won’t be the end of the matter until the Supreme Court concurs with that conclusion, but to head off years of litigation, DHS can now access ISS to schedule Initial Master Calendar hearings when it prepares NTAs, to ensure they contain all the information section 239(a)(1) of the INA requires.

Failing to File the NTA with the Immigration Court. So far, so good. Except, as TRAC has noted, in at least 63,500 instances this fiscal year alone, DHS failed to take the next step and file the NTA (which it can do electronically) with the immigration court.

This is not a minor issue. According to that report, 13 percent of the cases filed in September 2022 — about 5,200 in total — were “thrown out by judges” who never received the NTA. That’s inexcusable.

Biden’s Policies to Blame. But it is explicable. Border Patrol agents are so overwhelmed apprehending, transporting, caring for, processing, and — all too often — releasing illegal migrants at the Southwest border that they have failed to perform the purely ministerial task of sending NTAs to the appropriate immigration courts.

How overwhelmed? In FY 2022, the roughly 17,000 Border Patrol agents at the Southwest border apprehended more than two million illegal entrants, at a rate of nearly 6,000 apprehensions per day. That’s more than twice the daily average those agents were dealing with in FY 2019, when things were so bad the then-Trump administration declared a “border emergency”.

To listen to the current administration, however, you’d assume 6,000 apprehensions per day is just “business as usual”. That’s because the White House is seemingly oblivious to the humanitarian disaster at the Southwest border, for which its policies are largely to blame.

Joe Biden inherited what his first Border Patrol chief described as “arguably the most effective border security in” U.S. history, but as president, he quickly began dismantling the effective policies Trump put into place to achieve that control.

Most significantly, his administration first suspended and then terminated (twice) the Migrant Protection Protocols (MPP, better known as “Remain in Mexico”), a Trump program that directed CBP to return non-Mexican migrants back across the border to await their removal hearings.

In an October 2019 assessment of the program, DHS deemed MPP “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”.

Despite MPP’s “indispensability”, Biden dispensed with it anyway, and in a break with all his predecessors, has also rejected a policy of deterring foreign nationals from entering the United States illegally.

Instead, as Biden’s DHS secretary explains it, the administration’s objective is “to make sure that we have safe, orderly, and legal pathways for individuals to be able to access our legal system”.

That means that instead of removing those aliens (as Congress allows DHS to do), Biden wants to let them apply for asylum in removal proceedings — regardless of the strength of their claims or whether they come seeking asylum at all — but if their NTAs aren’t being filed with the court, those aliens can’t apply for anything. The administration can’t even bypass congressional directives properly.

Magnus Asleep at the Wheel? Congress will eventually be asking some rather pointed questions about all of this. Which leads me to the Politico expose on Magnus.

As commissioner of CBP, he’s in charge of the Border Patrol and is the front man for all White House border policies. Not that he brought much experience to the job, as I have explained in the past.

Prior to his confirmation as commissioner in December, Magnus had largely served in local law enforcement, almost exclusively in the Upper Midwest and San Francisco Bay areas. He was, however, also police chief in Tucson, Ariz., for less than six years.

While his lack of experience didn’t prevent the Senate from confirming Magnus as CBP commissioner at the height of a border maelstrom, Politico suggests that he hasn’t subsequently risen to the occasion:

Five current administration officials who work with ... Magnus portrayed him as unengaged in his job, saying he often doesn’t attend White House meetings on the situation on the border, badmouths other agencies to colleagues and superiors, and has not built relationships within CBP and across other agencies to address the influx of migrants at the border. They complain he is unfamiliar with some of the operations of CBP and instead is focused primarily on reforming the culture of the Border Patrol, addressing its long list of allegations of racism and violence.

Some of the officials believe Magnus hasn’t prioritized addressing the high number of migrants attempting to cross the border, but instead has continually tried to shift blame to other agencies.

In response, Magnus’ office told Politico that the commissioner “has spent his 10 months on the job getting up to speed on the agency’s ‘many complex areas’”. That’s no excuse.

Magnus was nominated in May 2021, and thus had seven months to “get up to speed” on CBP’s “many complex areas” before he was sworn in. Moreover, electronically filing NTAs isn’t rocket science in this age, but as the TRAC report shows, the agency can’t seem to pull even that off.

Still, plenty of unengaged and ineffectual backstabbing malcontents have managed to skate by in government service. What will likely come back to haunt Magnus, though, are allegations that he has “fall[en] asleep during multiple meetings, including one earlier this year on how to handle the current swell of Venezuelans crossing the border”.

The commissioner didn’t exactly deny those contentions, but instead told Politico that he has “experienced brief periods of tiredness as a side effect of his multiple sclerosis, the neurological condition he was diagnosed with 15 years ago; and that he adjusted medication levels to deal with those side effects”.

No one should be blamed for their efforts to battle the effects of a chronic and debilitating illness, but nobody forced Magnus to take the job to begin with.

Bloomberg Opinion has called for leadership in response to what it’s termed “Biden’s Border Fiasco”. CBP’s failure to properly file charges for the aliens it’s encountered shows things are getting worse. The border is dragging down the prospects of congressional Democrats, and if the border chief is as unfocused and disinterested as Politico suggests, he will soon be on the chopping block — if not by them, then by whoever controls the next, 118th, Congress.