The Notice to Appear (NTA) is the immigration court charging document, comparable to an indictment in criminal court. Most of the coverage of NTAs focuses on those issued by U.S. Customs and Border Protection (CBP) for illegal aliens apprehended at the southwest border. Under the Obama administration’s “catch and release” policy, economic migrants posing as asylum seekers referred to the NTA as a permiso, meaning a permit or permission to stay. The Biden administration’s "catch and release 2.0" is even more generous, where CBP is ordered to release apprehended aliens without an NTA. This reckless, and unlawful, policy essentially functions as an honor system for illegal aliens to self-report to a U.S. Immigration and Customs Enforcement (ICE) field office somewhere in the interior of the country to obtain an NTA. As my colleague Jon Feere has noted, 80 percent of these illegal aliens fail to show up at an ICE field office. The only thing surprising here is that the no-show number isn’t higher.
Often overlooked is that U.S. Citizenship and Immigration Services (USCIS) also has independent authority to issue NTAs. In fact, in recent years USCIS-issued NTAs represented a plurality of the total NTAs issued by Department of Homeland Security (DHS) components. Prior to the Trump administration, USCIS operated under a 2011 NTA policy that mirrored the Obama administration’s ICE enforcement priorities and established review panels to get ICE’s advice on whether or not USCIS should issue an NTA. In 2018, USCIS issued a new NTA policy that aligned with President Trump’s Executive Order 13768, “Enhancing Public Safety in the Interior of the United States”, which, among other things, declared every illegal alien an enforcement priority. The 2018 NTA policy instructed USCIS officers to issue NTAs to aliens and to directly serve them on the Department of Justice’s Executive Office of Immigration Review (EOIR); removed ICE employees from prosecutorial discretion panels for when to not issue an NTA; and established that USCIS officers should only decline to issue an NTA in “very limited circumstances”. This policy was rescinded by then-Acting DHS Secretary David Pekoske on January 20, 2021.
The Office of the Citizenship and Immigration Services ombudsman (CIS ombudsman) is an independent office within the Department of Homeland Security (DHS), responsible for “observing, analyzing, and seeking to improve USCIS’ processes, practices, and activities”. This office reports to the DHS deputy secretary and the ombudsman is a political appointee. By law, the ombudsman is required to submit an annual report to Congress.
The 2021 annual report, submitted by CIS Ombudsman Phyllis Coven, whom the Biden administration just recently installed in that role, covers six distinct areas of immigration policy and process. Of relevance for this post, is the second entry, titled “NTA Issuance: Problems Persist”. Running 10 pages long, this section claims to examine “ongoing systemic issues and the challenges of coordination” between USCIS, ICE, and EOIR for issuing NTAs, but largely, and incorrectly, attributes blame for some of these issues to the 2018 NTA policy announced during the Trump administration.
While I take issue with certain aspects of this report, for example absurdly calling illegal aliens “erroneously present in the United States”, I will mostly give the CIS ombudsman’s office a pass on the erroneous conclusions it draws because the Biden political appointees at USCIS obstructed the ombudsman’s effort to obtain all relevant information in the drafting process. Buried in a footnote, the report notes that “In preparing for this article, the CIS ombudsman requested certain updated information from USCIS. USCIS declined this request.” Your guess is as good as mine as to why USCIS political appointees played hardball, but I have been told by several USCIS sources that the policy chief opposes all NTAs, even those mandated by statute.
In an apparent attempt to undercut the 2018 NTA policy, the CIS ombudsman points out that NTA issuance was largely unchanged compared to the prior fiscal year. The ombudsman writes, “Although the universe of [aliens] subject to receiving an NTA was expanded by the 2018 guidance, which went into effect at the beginning of Fiscal Year (FY) 2019, the number of NTAs that USCIS issued only increased by 0.1 percent front FY 2018 to FY 2019.” The ombudsman explains the relatively stagnant data, “The expected increase in NTAs that never materialized suggests that individual officers were unable to take on this added responsibility.”
Not quite. Let me provide some key context the ombudsman was not privy to that explains the data. While the NTA policy was published in 2018, USCIS established a phased implementation policy. The first phase included issuing NTAs on Forms N-400 (naturalization) and I-485 (adjustment of status), but the policy on those forms in the 2018 memo practically mirrored the 2011 policy. As a result, the number of NTAs for this population was largely unchanged year-over-year. Phase two introduced NTAs on forms for humanitarian relief after the illegal alien is denied the immigration benefit. Phases three (criminal) and four (employment-based) were not implemented before the end of the Trump administration for several reasons. It is the limited operationalization of the 2018 NTA policy, and not USCIS officers being unable (or unwilling) to handle the burden of issuing NTAs, that explains the relatively flat numbers.
The report then focuses on “common errors related to [NTA] service [that] create additional administrative burdens for the government and due process failures for the [alien]”. Much of this criticism is valid. Within USCIS, three different directorates issue NTAs: service center operations (SCOPS), field offices (FOD), and refugee, asylum, and international operations (RAIO). The ombudsman correctly notes that only RAIO issues in-person NTAs when the alien comes into the office to receive a (negative) asylum decision. With many NTAs going out by mail, mistakes can happen in filling out the NTA and mailing address, even by highly trained USCIS officers. Sometimes this results in EOIR rejecting the NTA, the NTA being sent to the wrong address, or the wrong court date inputted.
However, these mistakes are true across DHS and EOIR, a fact the ombudsman describes as “ongoing systemic issues”. Despite recognizing these shared challenges in issuing NTAs, the ombudsman unfairly attributes much of the errors to the 2018 NTA policy. While casting aspersions toward the USCIS policy, the report cleverly uses “DHS” in a sentence highlighting an example of government failure. If it was a USCIS anecdote, the ombudsman could have used “USCIS”, as she did elsewhere, but instead she opted for the broader “DHS”. A quick look at the corresponding footnote reveals news articles highlighting issues attributable to ICE and EOIR. The criticism is valid, but the USCIS 2018 NTA policy isn’t the cause.