Migrant Arrivals at the Southwest Border: Challenges for Immigration Courts

Migrant Arrivals at the Southwest Border: Challenges for Immigration Courts

INSIGHTi

Migrant Arrivals at the Southwest Border:
Challenges for Immigration Courts
November 16, 2022
The United States has recently experienced record high levels of migration at the Southwest border, with
border enforcement encounters exceeding 2.3 million in FY2022. In addition to the processing strain for
Department of Homeland Security (DHS) components, this volume of migration has implications for
immigration courts in the Department of Justice’s Executive Office for Immigration Review (EOIR).
Migrant Processing and Removal Proceedings
DHS’s Customs and Border Protection (CBP) facilitates lawful travel and trade and enforces immigration
law at the U.S.-Mexico border; performed by the Office of Field Operations (OFO) at ports of entry
(POEs) and the U.S. Border Patrol (USBP) between POEs. This includes processing migrants who arrive
at POEs with no lawful basis to enter the country or who cross into the United States illegally between
POEs. In some cases, CBP may expel migrants to Mexico or their country of origin without a hearing or
the option to apply for asylum under Title 42, a public health authority temporarily in place in response to
the COVID-19 pandemic. Otherwise, migrants are placed in Title 8 proceedings (certain migrants are
exempt from Title 42 because they are unaccompanied children, from certain countries of origin, or meet
other case-by-case exceptions). Under Title 8, DHS has discretion to place migrants in expedited removal
or formal removal proceedings. In FY2022, CBP processed approximately 1.3 million migrants at the
Southwest border under Title 8, nearly double the number in FY2021, with most (89%) processed by
USBP for entering between POEs. This Insight focuses only on USBP processing under Title 8 and its
intersection with immigration courts.
Under expedited removal, DHS may remove migrants “without further hearing or review” unless they
express a fear of persecution or an intent to apply for asylum. In those cases, DHS’s U.S. Citizenship and
Immigration Services asylum officers determine whether the migrant has established credible fear and, if
so, places them in formal removal proceedings where they may pursue an application for relief before an
immigration judge (IJ). (A DHS interim final rule allows asylum officers to adjudicate defensive asylum
applications rather than placing the migrant in formal removal proceedings. DHS is implementing this
process in a phased manner; it is not yet widespread.)
During formal removal proceedings, an IJ determines whether a migrant (respondent in immigration
court) charged with an immigration violation is removable, and, if so, adjudicates defensive applications
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for relief from removal (e.g., asylum). To initiate formal removal proceedings, DHS must issue the
respondent a Notice to Appear (NTA) and file it with an immigration court. The NTA includes, among
other information, charges against the respondent; the respondent’s rights in proceedings; and the time,
date, and location for the first hearing. In some cases, USBP agents issue the NTA after processing
migrants, at which point they may be either detained by DHS’s Immigration and Customs Enforcement
(ICE) or released from custody. However, due to holding capacity and processing limitations, under
certain conditions, USBP agents have discretion to release migrants without an NTA. Currently, USBP
agents may, on a case-by-case basis, release migrants on immigration parole under alternatives to
detention supervision by ICE and instruct them to report to an ICE field office upon reaching their
destination, at which time ICE issues the NTA.
Backlogs in Immigration Courts
Immigration courts hear removal cases for noncitizens charged with grounds of deportability or
inadmissibility, including those already residing in the United States. The number of pending cases in
immigration courts has grown substantially in recent years. At the end of FY2022, immigration courts had
1.8 million pending cases.
As a result, EOIR’s IJs must contend with large caseloads, and some respondents must wait years to have
their cases adjudicated. Although the factors underlying the backlog are multifaceted, migrant flows and
growing numbers of arriving asylum seekers have direct implications for the number of cases added to
court dockets. In FY2022, immigration courts received an average 58,654 cases per month.
NTA Issuances: Nonspecific Addresses
In certain cases, detention is mandatory while respondents await removal proceedings (e.g., for those
convicted of specified criminal offenses); in other cases, detention is discretionary and DHS may choose
to release migrants. After screening, USBP frequently releases migrants awaiting removal proceedings
and issues them NTAs. NTAs must specify migrants’ intended addresses after release. The respondent
may also be served a separate hearing notice with their hearing time and location.
However, amid the increase in enforcement encounters, USBP agents have sometimes collected
incomplete and or invalid addresses. Reports suggest that certain recent migrant arrivals have no U.S.
contacts and may be unable to provide an intended destination. In some cases, DHS has mailed NTAs and
hearing notices to nonresidential addresses, including nonprofit organizations with no connection to
respondents. In addition, some states and cities have transported released migrants to certain U.S.
destinations, which may be different from migrants’ originally intended destinations and the ones
specified on their NTAs. Migrants may also elect to go to locations different from their initially intended
destinations.
Respondents who fail to appear for their hearings may be ordered removed in absentia and deported.
Advocates have argued that misdirected NTAs create due process concerns for migrants. They also
generate concerns regarding wasted time and resources for immigration courts.
Unfiled NTAs and Case Dismissals
DHS officers have access to EOIR systems that allow them to electronically file NTAs and schedule
initial master calendar hearings for nondetained respondents. Under federal regulation, IJs obtain
jurisdiction when DHS files the NTA with an immigration court. If DHS does not file the NTA with the
court before the first hearing, there is a “failure to prosecute,” and the case may be dismissed until DHS
files an NTA. Analyses by the Transactional Records Access Clearinghouse at Syracuse University have
found that CBP officials have increasingly failed to file NTAs with immigration courts, leading to

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63,586 case dismissals in FY2022. Failures to prosecute have raised concerns regarding wasted court time
and resources and questions surrounding issues such as implications for respondents’ ability to seek
asylum and to apply for work authorization.

Author Information

Holly Straut-Eppsteiner

Analyst in Immigration Policy

Disclaimer
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