FOIA Results: EOIR’s “Acceptance Guidelines for Notices to Appear”

On December 21, 2018, EOIR Director McHenry published PM 19-08, “Acceptance of Notices to Appear and Use of the Interactive Scheduling System.” That memo instructed immigration courts to “reject any NTA in which the time or date of the scheduled hearing is facially incorrect—e.g. a hearing scheduled on a weekend or holiday or at a time when the court is not open.”

Through the Freedom of Information Act (FOIA), we requested supplemental guidance on when immigration courts were supposed to reject NTAs as facially incorrect.

In response, EOIR produced a chart of “Acceptance Guidelines for Notices to Appear.”  Most glaringly, the chart shows that immigration courts have been instructed to accept NTAs directing an initial appearance at a “TBD” time.  This is in spite of the Supreme Court’s holding that “…Congress fully intended to attach substantive significance to the requirement that noncitizens be given notice of at least the time and place of their removal proceedings” and that a “document that fails to include such information is not a “notice to appear” under the statute.  Pereira v. Sessions, 138 S. Ct. 2105, 2118 (2018).

The chart also indicates that if an NTA lists one court and the NTA is filed in another, the court NTA-receiving court should reject the NTA unless it is filed along with a DHS memo memorializing the change in location that has been served on the respondent.  It is unclear from the acceptance guidelines what that DHS “memo” would look like or what it would be required to contain.

We have requested further records related to PM 19-08 through FOIA and will update here if we receive results.

Click here to see EOIR’s “Acceptance Guidelines for Notices to Appear” chart.