FOIA Results: Failure to Prosecute Cases

On December 21, 2018, EOIR Director McHenry published PM 19-08, “Acceptance of Notices to Appear and Use of the Interactive Scheduling System,” instructing 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.”

In any case where the NTA is not filed with the immigration court as of the time and date of the hearing listed on the NTA, EOIR directed staff to classify the case as “failure to prosecute.”

Despite assurances that post 12/21/2018-issued NTAs would no longer contain “fake dates,” immigrants, lawyers, and media continued to report court dates for cases that had never been entered to the immigration court system.  This resulted in people traveling to the court dates listed on the NTA only to be turned away and told that they are not in the court system.

Unclear from the available EOIR guidance is whether either the immigrant or DHS gets any notice when the court designates a case as “failure to prosecute.”  FOIA requests for supplementary guidance have not yet produced much useful information.  But a FOIA result for statistics shows the breadth of the issue, with 5,257 cases closed and designated as “failure to prosecute” between 12/21/2018 and 10/8/2019.  Below is the chart produced by EOIR in response to our FOIA request:

In other words, in over 5,000 immigration court cases that DHS attempted to initiate after the 12/21/2018 EOIR memo proclaimed the “fake date” issue solved, EOIR had to close the case because DHS failed to submit the charging document to the court by the purported initial hearing date.

These 5,257 people have been put on notice that DHS believes they are deportable and has some desire to initiate removal proceedings. But following their case being closed as “failure to prosecute,” they have no idea whether DHS will issue a new NTA and file it with the court. Because their court case doesn’t technically exist, they have no way to update their address with the court to make sure that any notices of future hearings are sent to their current residence. And for those who are lawful permanent residents, they may rightfully feel anxious about whether they can travel internationally without issue or whether they can apply to become naturalized citizens. Further information and guidance are needed.

We will continue to push for further information and will post any records found here.

Related Reading:

• EOIR Policy Memo dated 12/21/2018
• FOIA Results: EOIR’s “Acceptance Guidelines For Notices To Appear”