Over ten thousand migrants who crossed the border illegally in the last year are in limbo because the U.S. government failed to file the required paperwork in court, leaving them with no immigration case to fight and ambiguous legal status in the U.S.
Migrants who cross the border from Mexico typically have an initial court date set several weeks later. This is the first step in applying for asylum in the United States and the start of an extensive legal process that may take years to complete if everything goes as planned. The judge frequently schedules second hearings weeks or months later, giving migrants time to find a lawyer.
Based on data compiled by Syracuse University’s Transactional Records Access Clearinghouse, nearly 47,000 of the almost 284,500 cases completed in U.S. immigration courts between the start of the federal fiscal year in October and June were dismissed. The cases were dismissed because a document known as a Notice to Appear, or an NTA, was not filed.
According to TRAC, fewer than 12,000 of approximately 1.6 million cases lacked government paperwork between fiscal 2013 and 2020. Last fiscal year, about 15,000 of the 144,751 cases did.
Unlike typical criminal cases, such as traffic violations, where charges are dropped if the government fails to cooperate, immigration court cases can be filed at any time, leaving migrants in limbo.
Immigration judges and lawyers say such delays, deemed “failure to prosecute” by judges hearing the cases, undermine the Biden administration’s efforts to reduce a backlog of nearly 2 million cases.
When hearings are scheduled and do not occur due to a DHS ‘ (Department of Homeland Security) failure to prosecute, it strains an already overburdened system, said Mimi Tsankov, president of the National Association of Immigration Judges union, a New York immigration judge.
Officials from the Biden administration did not explain why they have not filed paperwork in 17% of cases this fiscal year. Border patrol has recently been overwhelmed by a record number of illegal crossings from Mexico, which is projected to reach 2 million by the end of the fiscal year.
In a statement, a spokesman for the Department of Homeland Security said that in cases of missing or misfiled paperwork, the government fixes the error so that cases may resume and migrants can continue with their obligation to appear before an immigration court at a later date.
On a recent Thursday morning in Los Angeles, immigration Judge Nathan Aina announced that 11 of the morning’s scheduled 15 cases would be closed due to failure to prosecute.
He didn’t know if we’ve ever had a docket with so many failure-to-prosecute cases. Judge Aina added that he lacks the legal authority to proceed without the necessary paperwork.
None of the 11 migrants whose cases were not prosecuted by the government appeared in court. People who work with migrants believe it could be because they called a government hotline and were told they didn’t technically have a case despite having a hearing scheduled. Migrants in these situations do not have legal permission to live or work in the United States because their legal status has not been determined, but they have also not been ordered deported to their home country.
First-year immigrants may apply for asylum through a separate process administered by U.S. Citizenship and Immigration Services. However, this usually necessitates the assistance of a lawyer. According to lawyers and activists, others frequently fail to understand that the government can file paperwork and reactivate their cases at any time. The missing case documents add another layer of complication to an already overburdened system, which lawyers and the judges’ union argue should be overhauled entirely.
The system has collapsed on itself, said Charles Kuck, an immigration lawyer in Atlanta. They could hire 1,000 more judges, but they won’t be able to clear the backlog, he added.