FOIA Results: Failure to Prosecute Cases Show Continuing Disfunction in Immigration Courts

Over 32,000 cases closed for DHS failure to file charging document by date of initial hearing

On December 21, 2018, former EOIR Director James 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.”  Should DHS attempt to file the NTA on a failure to prosecute case after the date of hearing listed on the NTA, courts were instructed to reject it.

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.  Back in October of 2019, we posted FOIA results showing that between 12/21/2018 and 10/8/2019, 5,257 cases had been closed as failure to prosecute.  Updated data obtained through FOIA shows the problem has not gone away and appears to have gotten significantly worse since June 2021:

In other words, in over 32,000 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. From publicly available guidance, there is no indication that the closure of a case as “failure to prosecute” results in any official notice being sent from the court to the noncitizen or DHS.  The noncitizen with a case closed as “failure to prosecute” may not even know or understand that there are no active removal proceedings against them (and will likely be desperately trying to figure out how to appear in court).

Undoubtedly many of these over 32,000 people with “failure to prosecute” cases would rather not be in removal proceedings.  But many are eager to challenge DHS charges of deportability or to apply for relief from removal. Instead, they are left in a limbo, knowing that DHS officers believe they are deportable and have shown some desire to go forward with removal proceedings, but unsure whether they are actually trying to remove them.  After their cases are 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 or other immigration status, they may rightfully feel anxious about whether they can travel internationally without issue or whether they can apply to become naturalized citizens.

EOIR and DHS may disagree on which agency should get more of the blame, but the continued need for and use of “failure to prosecute” closures shows the longstanding issues with NTAs and initial court hearings are far from resolved.

Related Reading:

• EOIR Policy Memo dated 12/21/2018

• FOIA Results: EOIR’s “Acceptance Guidelines For Notices To Appear”

• FOIA Results: Failure To Prosecute Cases