GOP senators demand answers over spike in migrant cases dismissed by courts as docs not filed in time

FIRST ON FOX: Seven Republican senators are urging the Biden administration to review its policies and processes related to the release of migrants into the U.S. after it emerged that tens of thousands have had their cases thrown out of immigration court as officials did not file the necessary documents in time.

“Little information has been provided regarding why this mistake is occurring and how DHS will remedy it,” the seven senators, led by Sen. Bill Hagerty, R-Tenn., say in the letter to DHS Secretary Alejandro Mayorkas.

Migrants apprehended at the southern border after entering the U.S. illegally in many cases are released into the U.S. with a notice to appear (NTA), which gives them a court date and address to appear for their immigration hearings. NTAs are then submitted to the immigration court by Immigration and Customs Enforcement (ICE) using data from Customs and Border Protection (CBP).

But the use of NTAs has increased in line with a massive surge in migration over the last two years. There were more than 1.7 million migrant encounters in FY 2021 and more than 2.3 million in FY 2022. With that, Border Patrol agents have been given access to a scheduling system that both schedules a hearing and gives a copy to the migrant.


A U.S. Border Patrol agent speaks with Central American immigrants at the border fence.
(John Moore/Getty Images)

With a massive surge of numbers at the southern border that began in the Spring of last year, the number of NTAs being given and migrants being released into the U.S. also surged, often overwhelming Border Patrol agents and officials. Agents have been given the authority to use a scheduling system that schedules the hearing at the court, while producing a copy to the migrant.

Data obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University in October found that 63,586 cases were dismissed in FY 2022 as of the end of September because the NTA was not filed in time.

The organization said that was a dramatic increase from less than 1,000 incidents of NTAs not being filed in February and March 2021 to more than 5,000 a month in late 2021 and 2022. In April 2022, more than 7,000 cases were thrown out. It warned that throwing cases out is wasteful and causes a difficult situation for immigrants, who may not know what to do next and may be left in limbo.

The letter, signed also by Sens. Marsha Blackburn, R-Tenn., Bill Cassidy, R-La., Ted Cruz., R-Texas, Michael Rounds, R-S.D., Cindy Hyde-Smith, R-Miss., and Ron Johnson, R-Wis., says that before all three DHS components began using the scheduling system, occurrences of DHS failing to file NTAs were rare.

“In FY 2018, for example, only 0.3 percent of cases were dismissed because no NTA was filed. And even after this change, such dismissals remained rare: In FY 2019 and 2020, the number of cases dismissed for failure to file an NTA climbed slightly to 1.7 percent and 2.4 percent, respectively (less than 6,000 cases per fiscal year),” they say. That number rose to over 16% in FY 2022.


“This raises the question: What caused this substantial spike in incidences of DHS officials not filing an NTA after you took office and, consequently, tens of thousands of immigration cases against illegal aliens being dismissed because of DHS’s failure to file paperwork?” they ask.

The lawmakers call for DHS to “immediately review DHS policies and practices relating to the issuance and filing of NTAs” and provide additional information and documents, including any directives to employees regarding NTAs, any organizational changes, and what DHS is doing to prevent additional dismissals.

A DHS spokesperson told Fox News Digital in October that those who are released from custody are under strict requirements to report in regularly.

“If a Notice to Appear (NTA) is unavailable, insufficient, or in need of correction at the time of the immigration court hearing, it is a regular practice to correct the deficiency and resubmit, or issue a new NTA so that cases may resume and migrants can continue with their obligation to appear before an immigration court at a later date,” they said.

DHS said that it has matched an “unprecedented challenge” with “unprecedented border security solutions” — including 23,000 more staff, greater investments and anti-smuggling efforts and regional cooperation.


Meanwhile, DHS says ICE is working with CBP and USCIS to ensure NTA forms are properly completed to reduce any such incidents. Additionally, when migrants are released, they are told to check in with ICE, including reporting changes of address and to receive further information about their cases.

The lawmakers are requesting answers by Dec. 23, two days after the administration will be blocked by a federal court from using the Title 42 public health order to expel migrants quickly at the border. 

It has led to fears about a new migrant surge on top of already high numbers — but DHS says it has a plan in place to deal with any increase in illegal migration. 

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