Introduction
Since 2014, an unprecedented surge of in absentia removal orders has resulted in the deportation of tens of thousands of noncitizens, often at the expense of due process.[1] The Immigration and Nationality Act (INA) permits an immigration judge to order a noncitizen removed in absentia—that is, “in the absence” of the noncitizen—if the government establishes by clear, unequivocal, and convincing evidence that a written notice, called a notice to appear (NTA), was provided to the noncitizen and that the noncitizen is removable.[2] Since the Obama Administration, the Executive Branch has ordered immigration officers and judges to initiate and adjudicate removal claims rapidly.[3] This pressure to close cases has led immigration judges to issue an endless amount of in absentia removal orders against noncitizens without due process: proper notice and the opportunity to participate in their hearings. [4] As one former immigration judge explained, “issuing a removal order in absentia can serve as a low-pressure way for immigration judges to meet quotas and for the immigration court system to chug along, hoping that due process failures in in absentia cases will not actually be challenged or exposed.”[5] The result: year after year, thousands of noncitizens are stunned to learn that they are being deported without ever having known that a hearing took place.
A driving force behind this systematic deprivation of due process is the Department of Homeland Security’s (DHS) staunch refusal to comply with the express requirements of the INA. Although the INA grants DHS significant discretion over removal proceedings, it simultaneously imposes two inexorable commands upon DHS: first, in order to be valid, an NTA must include a hearing date, time, and place; and second, DHS must provide the immigration courts with the most current address and phone number provided by the noncitizen. Each requirement is designed to protect noncitizens’ due process rights: receipt of an NTA with the removal hearing’s time and place notifies noncitizens and provides them with an opportunity to participate in their removal hearings. If the hearing information changes after a valid NTA is served, receipt of a subsequent notice from the immigration court at the noncitizen’s most current address guarantees that noncitizens still have notice and an opportunity to participate.
Yet, DHS often treats these Congressional commands to protect due process rights of noncitizens as mere suggestions. Specifically, DHS’s U.S. Immigration and Customs Enforcement (ICE) division continuously fails to comply with and uphold these INA mandates when initiating removal proceedings. What results is ICE illegally impeding noncitizens’ ability to appear for their removal hearings, primarily by creating defective NTAs with no time or place for the removal hearing.[6] For example, “almost 100 percent” of NTAs issued between 2015 and 2018 omitted the time and date of the removal hearing. ICE also prevents noncitizens from appearing for their removal hearings by issuing NTAs with dummy dates for nonexistent hearings or providing the immigration courts with outdated addresses, instead of the correct ones supplied by noncitizens. Each is an illegal action by ICE; each deprives noncitizens of due process. The outcome of these actions is as devastating as it is unjust: noncitizens do not actually receive notice of their hearings, and they are thus unable to appear, faulted for ICE’s own due process violations, and subsequently ordered deported.
This Essay highlights how ICE contributes to the pervasive denial of noncitizens’ due process rights by abusing its discretion over removal proceedings and blatantly eschewing the INA. Part I provides a brief overview of the removal process as prescribed by the INA, the government agencies involved, and their roles. Part II illustrates the harms that result from ICE’s abuse of its authority over removal proceedings and violations of the INA by focusing on a recent successful appeal. Part III analyzes how ICE willfully violates the INA and causes the issuance of in absentia removal orders; how the Supreme Court attempted to stop ICE’s violations of the INA; and how, in response, ICE doubled down on practices that deny noncitizens due process. This Part also draws on seven sworn declarations obtained from the leadership of legal services organizations on the front lines representing low-income noncitizens in removal proceedings: Immigrant Justice Corps, UnLocal and Safe Passage Project in New York; Brooklyn Defender Services and Central American Legal Assistance in Brooklyn; Building One Community in Connecticut; and Catholic Legal Immigrant Network, Inc. in Washington, D.C.[7] Collectively, these agencies represent more than 500,000 noncitizens within the U.S. legal system each year. The declarations summarize each organization’s experience with the widespread and surging use of in absentia removals, as well as counsels’ direct observations in their more than 84 collective years representing noncitizens before ICE, the immigration courts, and the Board of Immigration Appeals (BIA). Taken together, these accounts paint an alarming picture of the large-scale denial of noncitizens’ due process rights. Finally, Part IV suggests two changes that Congress could make to address the massive denial of due process that ICE perpetuates against noncitizens through its removal process.
I. The Removal Process: Legal Framework
DHS has exclusive discretion over if and when to initiate removal proceedings in immigration court.[8] As a division within DHS, ICE is responsible for the two-step process of initiating a removal proceeding. First, ICE must serve the noncitizen an NTA that states the location, date, and time of the removal hearing.[9] If an NTA does not state the hearing’s time and place, it violates the INA and is invalid.[10] Second, ICE must file the NTA with the immigration court listed on the NTA. The immigration courts are part of the Executive Office for Immigration Review (EOIR), a unit of the U.S. Department of Justice (DOJ). It is not until ICE has both properly served the NTA on the noncitizen and filed the NTA with the immigration court that the removal proceedings legally begin and jurisdiction over the noncitizen’s immigration case vests in the immigration court.[11] Moreover, a noncitizen’s failure to receive an INA-compliant NTA is grounds to rescind an in absentia removal order.[12]
Completing step one and serving the NTA on a noncitizen imposes certain statutory duties on both ICE and the noncitizen.[13] Noncitizens must “immediately” update ICE, in writing, whenever their address or phone number changes.[14] Once noncitizens provide updated contact information to ICE, ICE must then complete step two by providing the noncitizen’s “last,” “most recent” contact information[15] to the immigration court so that the immigration court can mail the noncitizen a separate, EOIR-generated notice of hearing and otherwise communicate with the noncitizen going forward.[16] Unless and until ICE files the NTA, the immigration court lacks jurisdiction over the removal proceedings.[17] Without jurisdiction, no removal proceedings have begun, no case is docketed, and no record of the noncitizen’s immigration proceedings exists in the immigration court.[18]
This background is key to understanding who bears the responsibility for updating the noncitizen’s address and when. Before ICE files the NTA, a noncitizen is required to keep ICE, but not the immigration court, apprised of any changes to their address.[19]. This is because the immigration courts would not have any way to record the address change, as there is no docketed case to reference.[20]. It is only after ICE serves the NTA on a noncitizen and files it with the immigration court that the noncitizen is required to keep the immigration court apprised of changes to their address using EOIR’s change-of-address form, Form EOIR-33.[21] Until then, ICE is responsible for keeping track of any address updates provided by the noncitizen and for providing those updates to the immigration courts. However, it can take years before ICE finally files the NTA with the immigration court, and this delay contributes to deprivation of due process for noncitizens.[22]
II. "Maria's" Story[23]
On January 18, 2017, DHS immigration officials detained Maria and her infant son when they entered Texas from Mexico seeking asylum. DHS identified Maria as a Guatemalan laborer who spoke no English and very little Spanish. Despite their awareness of the language barriers, immigration officers produced an English-language document that they called an NTA; yet it was not a legally valid NTA under the INA, as it failed to include both a hearing time and place.[24] The immigration officers read their document to Maria in Spanish and made her sign it. Without further instructions regarding the NTA, immigration officials then ordered Maria to report for monthly check-ins with ICE.
Maria did everything ICE told her to do. She wore an ankle monitor for five months. Between February 2017 and early 2018, she attended at least fourteen ICE check-ins. When her phone number or address changed, Maria provided her updated contact information to the ICE officers at her check-ins. ICE’s own records evidenced Maria’s compliance both with ICE’s demands and with the INA.[25] Apparently satisfied with Maria’s 18-month history of perfect cooperation, ICE relaxed her monthly reporting requirements. After Maria checked in with ICE on August 15, 2018, ICE ordered her to return one year later, on August 15, 2019.
Just weeks after her August 2018 check-in, on October 2, 2018, New York ICE Officer Smith filed Maria’s NTA with the immigration court, but did so without using the correct, current address that she had provided to ICE. Despite having Maria’s correct, current address at his fingertips, Officer Smith chose not to insert it into the NTA or the accompanying notice that he filed with the immigration court. Officer Smith undeniably had Maria’s updated address at the time considering he typed that address onto her infant son’s NTA, they lived together, and her son’s removal proceedings were set to be adjudicated as part of Maria’s. Her son’s NTA is even labeled as “Served on mother.” But Officer Smith decided not to provide the immigration court with Maria’s current, correct address, a decision that violated ICE’s duty under the INA.[26]
Officer Smith also modified the so-called NTA that DHS served on Maria when she was detained in Texas by adding a date and time for her hearing to it. The date Officer Smith added, “October 31, 2018,” is a hearing date that ICE infamously applied to numerous defective NTAs lacking hearing dates and times following Pereira v. Sessions,[27] a 2018 Supreme Court decision rejecting ICE’s use of such defective NTAs.[28] Then, he filed Maria’s defective NTA with the immigration court, vesting the immigration court with jurisdiction over Maria’s case for the first time.
The ensuing series of events was as inevitable as it was unfair. The immigration court mailed notice of Maria’s removal hearing to the wrong, outdated address that ICE provided. Maria did not receive the notice and was thus absent from her removal hearing on December 19, 2018—her first missed immigration appointment in nearly two years. The immigration judge wrongly accused Maria of failing to update her address as required by the INA and entered an in absentia removal order against her and her son. Because the removal order was also sent to the wrong, outdated address, Maria did not receive that either. It was not until September 26, 2019—nine months after being ordered deported due to ICE’s error and one month after her August 15 ICE check-in—that ICE finally informed Maria of the in absentia removal order against her.
Maria immediately appealed the immigration court’s removal order to BIA, arguing that the removal order had to be rescinded because she did not receive an INA-compliant NTA with the time and place of her hearing.[29] BIA offered only a perfunctory review of Maria’s case. Again relying on the modified NTA that ICE had provided, BIA held that the NTAs included the hearing time, date, and location when it was served on Maria and failed to address clear errors in the NTAs, such as the mother and infant having two different addresses. Like the immigration court, BIA concluded that service of the EOIR-generated hearing notice to Maria’s outdated address was proper based on its belief that Maria had failed to update her address both with ICE, generally, and with the immigration court on Form EOIR-33.
III. The ICE Trap: Defective NTAs Inevitably Lead to In Absentia Removal Orders
The chain of events in Maria’s case reflects three common methods that ICE uses to deprive noncitizens of due process. First, because ICE is the only agency that a noncitizen must inform of their address changes before the NTA is filed, ICE’s failure to provide updated address information to the immigration court compels entry of unjustified in absentia removal orders. ICE’s failure to provide the immigration court with the noncitizen’s current, correct address causes the immigration court to mail the EOIR-generated hearing notice to the wrong, outdated address. After the noncitizen misses the hearing, the immigration court again relies on ICE’s inaccurate address, faults the noncitizen for ICE’s failure, erroneously assumes that the noncitizen did not satisfy their INA statutory duty to update their contact information, and enters an in absentia order deporting them without notice or an opportunity to participate in their hearing and through no fault of their own.
Second, ICE commonly serves noncitizens with so-called NTAs lacking hearing time, date, or location—in other words, placeholder NTAs—in violation of the INA. Third, ICE abuses its exclusive authority over noncitizens by waiting months or years to file the NTA, then filing it without informing the noncitizen. Although the noncitizen fully cooperates with ICE and provides updates on their address in writing, ICE eschews its own statutory duty to use the last, most recent address provided by the noncitizen. Instead, ICE provides the immigration court with an inaccurate or outdated address, adds hearing information to the defective placeholder NTA post hoc, and files it with the immigration court. This is what happened to Maria.
ICE’s long delay between serving the noncitizen and filing the NTA with the immigration court “inevitably leads to errors in recordkeeping and faulty service by the government that can end with a removal order through no fault of the noncitizen.”[30] The longer the delay, the greater the risk that changes of address will be lost or incorrectly recorded, often resulting in “noncitizens never receiving time-and-place information at all—potentially resulting in wholly unjustified in absentia removal orders.”[31]
This extensive denial of due process in removal proceedings is neither new nor accidental. Current and former immigration judges, members of BIA, immigration advocates, practitioners, and the federal appellate courts have long decried ICE’s disregard for due process and the mandates of the INA.[32] And the Supreme Court has twice attempted to end ICE’s illegal practice of creating placeholder NTAs while flouting the INA’s statutory commands.[33]
Nevertheless, ICE has chosen to stay the course, stubbornly adopting other dubious practices, such as the use of dummy NTAs,[34] and continuing to “churn[] out in absentia removal orders without fully considering whether the noncitizen received adequate time-and-place notice.”[35] Perhaps unsurprisingly, the number of in absentia removal orders entered by the immigration courts surged from 25,864 in 2014 to 87,002 in 2020.[36] A comprehensive study of EOIR data from 2,797,437 removal proceedings in 2008 through 2018 found that “[t]he overwhelming majority of immigrants”—83 percent—“appear for their immigration court hearings.”[37] For those who do not appear, it is usually due to either “a pervasive failure of DHS to include the time and date of hearings” on NTAs, unfamiliarity with the court system, language barriers, or lack of counsel.[38] After missing a hearing due to lack of notice, noncitizens are shocked to discover that a removal order has been entered in absentia, and if they are able to find counsel, they respond by filing a motion to reopen their case.[39] As one practitioner put it, “the government’s administrative dysfunction is particularly onerous” for pro se noncitizens—meaning the vast majority—who leave their ICE check-ins with a false sense of assurance that reporting to ICE has satisfied their obligations to appear in immigration court.[40]
ICE’s refusal to abide by the INA’s “simple rule[s]”[41] —first, that the NTA include the date and time of a hearing, and second, that ICE provide the immigration court with the noncitizen’s last, most recent address—creates an overwhelming amount of confusion for noncitizens. As a result, noncitizens are barreled through the U.S. immigration system and ordered removed in absentia “despite diligently meeting their ICE check-in requirements” and through no fault of their own.[42]
A. ICE Has a Long History of Willfully Violating the INA and Abusing Its Authority.
In 2018, counsel for the government admitted at oral argument before the Supreme Court in Pereira v. Sessions[43] that “almost 100 percent” of NTAs issued in the previous three years “omit[ted] the time and date of the proceeding”[44] despite the INA’s unequivocal statutory commands. The Pereira case arose from a “seemingly simple” rule that had generated “outsized controversy” within ICE: in order to be valid, an NTA must specify the time and place at which removal proceedings will be held.[45]
In Pereira, ICE had followed its usual two-step process for initiating removal proceedings. ICE served the noncitizen, Pereira, with a placeholder NTA lacking both a hearing date and time and filed that NTA with the immigration court over one year later.[46] Although Pereira provided his current, correct address to ICE, ICE did not provide that address to the immigration court. Unsurprisingly, the immigration court mailed its EOIR-generated notice of hearing to the wrong, outdated address supplied by ICE and Pereira did not receive it. He failed to appear at his removal hearing and was ordered deported in absentia.[47]
The Supreme Court rejected ICE’s use of placeholder NTAs in Pereira, holding that a “putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings” is not a valid NTA
under § 1229(a).[48] In so doing, the Supreme Court squarely rejected BIA’s and the immigration judge’s conclusion that “the law [was] ‘quite settled that DHS need not put a date’” on the NTA in order to make it effective.[49] Instead, the Supreme Court determined that “Congress took pains to describe exactly what the government had to include in a notice to appear, and that the time and place of the hearing were among them.”[50]
The Supreme Court was forced to intervene again three years later because “the government ha[d] chosen instead to continue down the same old path.”[51] The Supreme Court’s 2021 Niz-Chavez[52] decision aimed to end the use of documents “labeled notices to appear” that nevertheless failed to include the time and place of the removal hearing and held that a valid NTA must include the hearing date, time, and location when served on a noncitizen.[53]
Nonetheless, ICE continues to defy these rulings. As attested by its legal director Jennifer Williams, Building One Community “still receives many NTAs without indicating a date and time for removal proceedings” and, even “[m]ore disturbing,” ICE continues to issue “defective NTAs” that “do not even indicate a location for the immigration court (merely stating ‘TBD’ or ‘At A Place To Be Set’).”[54] “Almost invariably” in removal matters defended by the Safe Passage Project in New York, “the NTA lacks essential hearing information, including a stated time, date and place.”[55] It can take years before ICE finally files a completed NTA that specifies the hearing time and place with the immigration court.[56]
Following the Supreme Court’s invalidation of ICE’s use of placeholder NTAs in Pereira, ICE and DOJ authorized a new method of depriving noncitizens of due process using dummy dates: entering random and arbitrary initial hearing information on NTAs,[57] even if “hearings are frequently not actually held on that date.”[58] As former immigration judge Rafael Ortiz-Segura put it, DHS “[was] trying to skirt [Pereira] by issuing these notices to appear with fake dates.”[59] In January 2019, the American Immigration Lawyers Association received reports that ICE issued over 1,000 dummy dates in one week to noncitizens throughout the country.[60] This practice further increased the incidence of erroneous in absentia removal orders.
October 31, 2018—the same date Officer Smith used on Maria’s modified NTA—is one of ICE’s most infamous dummy dates. An ICE official informed DHS Assistant Secretary David Shahoulian that on October 31, 2018,
[A] large number of [noncitizens] appeared at several immigration courts nationwide, many without cases on our docket. In many of these cases, this is because DHS either did not file the NTA with the immigration court, or did not file the NTA at least 14 days before the date they put on the NTA.[61]
Shahoulian responded that he had seen a DOJ email indicating that “the use of ‘dummy dates’ [appeared to be] both intentional and authorized.”[62]
Unsurprisingly, ICE’s disregard for the requirements of the INA and of the Supreme Court’s decisions in Pereira and Niz-Chavez continues to deprive noncitizens of due process and to cause immigration courts to enter unjustified in absentia removal orders against them. Some noncitizens who had real hearings on October 31, 2018 and received notice were ordered removed in absentia while waiting in the long lines caused by ICE’s dummy dates.[63] Others, like Maria, had their purported October 31, 2018 court dates rescheduled, but likely missed subsequent hearings because ICE used old, outdated addresses on their NTAs.[64]
B. It Is Nearly Impossible for Noncitizens to File an EOIR-33 Change-of-Address Form Before the NTA Is Filed.
As in Maria’s case, ICE and BIA also misleadingly insist that noncitizens can avoid in absentia removal orders by filing their own change of address forms directly with the immigration court using Form EOIR-33.[65] However, the focus on Form EOIR-33 is deceptive because—as ICE and EOIR know—it is all but impossible for noncitizens to update their addresses in immigration court, using Form EOIR-33 or otherwise, unless and until ICE files the NTA.
As EOIR, immigration judges, and BIA officials have acknowledged, the period between ICE’s initial service of a placeholder NTA and its filing of a completed NTA is a “No Man’s Land,”[66] “limbo,”[67] or a period of “inchoate” proceedings.[68] During this period, ICE retains exclusive jurisdiction over the matter, such that no case or jurisdiction yet exists in the immigration courts.[69] And, as a practical matter, immigration courts have no docketing system or other mechanism for taking address changes even if a noncitizen tries to submit Form EOIR-33 before the NTA is filed.[70]
For example, in In re Morales Paz,[71] ICE served a noncitizen with a so-called NTA in 2014 with the removal hearing date and place blank and did not file a valid NTA containing hearing specifics until 2018.[72] The noncitizen, Morales Paz, “called the Houston Immigration Court every month for 3 years seeking a status update on her case” but was informed “that her alien registration number was not on file with the court.”[73] When Morales Paz moved from Houston to Utah, her attorney dutifully updated her address with DHS.[74] But DHS subsequently filed its four-year-old placeholder NTA with the immigration court, causing the EOIR-generated notice of hearing to be sent to the outdated address.[75] BIA granted Morales Paz’s motion to reopen her case because it found that she literally “could not update her address with the Immigration Court” until after the NTA had been filed.[76]
In another case discussed at an EOIR department meeting,
a[] [noncitizen] was ordered deported in absentia almost two years after the NTA was issued and the [noncitizen] had tried to notify the Immigration Court of his new address. The EOIR-33 was returned because the Court had no file for him and, almost 18 months later, the hearing notice was sent to the old address where the forwarding order had, of course, expired.[77]
More recently, in an Amicus filing in the Niz-Chavez[78] case, thirty-three former immigration judges stated that it is futile to attempt to file an EOIR-33 change-of-address form with the immigration court before an NTA has been filed, as “there will be no record of proceeding to which [the noncitizen’s] form can attach because no notice to appear has been docketed—the case falls into limbo.”[79] According to Paul Schmidt, who served thirteen years as an immigration judge and six years as chairman of BIA, any change-of-address form that a noncitizen tried to file with an immigration court before the NTA was filed was “frequently lost and not readily retrievable.”[80]
The consensus by DHS and DOJ insiders about the futility of submitting Form EOIR-33 before an NTA is filed further illustrates how ICE traps noncitizens in a Catch-22 wherein baseless in absentia removal orders inevitably result. If, as in Maria’s case, ICE does not provide the immigration court with the noncitizen’s latest contact information, “the notice of hearing, when finally generated, may never get updated with fresh address information and so it will be misdirected to the wrong address.”[81] On the other hand, there is no guarantee that filing Form EOIR-33 while in limbo will successfully update a noncitizen’s address because immigration courts frequently lose or outright reject Form EOIR-33s submitted before the NTA has been filed.[82] Instead, “EOIR will send [its] notice to the [incorrect] address it has on file rather than the [correct] address in the EOIR 33 which it has rejected, almost guaranteeing that the noncitizen does not receive notice of the hearing.”[83] Therefore, no matter what a noncitizen does, deportation without notice or an opportunity to participate in their hearing almost certainly ensues when DHS ignores an updated address and uses an old, outdated one.
IV. Potential Solutions
ICE’s ongoing use of placeholder NTAs and willingness to ignore the correct, current addresses that noncitizens provide flout Congress’s express commands and directly contravene two Supreme Court decisions. More importantly, ICE’s behavior betrays the United States’ commitment to due process for all. ICE’s behavior cannot be allowed to continue.
As the Supreme Court explained in Niz-Chavez,[84] there are a number of simple, straightforward solutions that ICE could have adopted in response to the Pereira[85] decision, including issuing NTAs with all of the statutorily required information.[86] Indeed, both the Ninth and Fifth Circuits have recently adopted this approach by rescinding in absentia removal orders entered after ICE served noncitizens with defective NTAs missing hearing dates and times.[87] Instead, ICE has repeatedly abused its significant discretion over noncitizens’ removal proceedings, barreling compliant noncitizens through the immigration system without allowing them their day in immigration court and, thus, denying them due process. Leveling the playing field will require greater oversight and accountability from Congress, EOIR, and Article III courts.
The first and easiest solution is to provide noncitizens with notice of their removal hearings by using the most recent, current address they have provided to ICE or the immigration courts. There are a host of ways this could be done immediately, two of which will be briefly discussed here. First, Congress could require DHS and DOJ to maintain a single, shared database with all noncitizens’ contact information. Both departments would be required to immediately update that database with any change of address provided to either ICE or the immigration court by the noncitizen or their counsel, and to use that current address for all notices—including notices of removal hearings. The agencies’ failure to use the current address for a noncitizen, as listed in the database, would be cause for BIA, or Article III courts, to rescind any removal order issued using a different address. This solution would not be costly because all relevant agencies can track the noncitizen and provide notice using the unique nine-digit “A” number that ICE assigns to noncitizens.[88] Large government agencies, such as the Internal Revenue Service and Social Security Administration, easily maintain similar databases using nine-digit social security numbers. Even more critically, this solution would allow noncitizens to update their address information directly with the DOJ’s immigration courts and reduce their reliance on ICE providing updated address information to the immigration court.
Second, Congress could amend the INA to mandate that ICE serve a new NTA on the noncitizen in person and at the same time or within days of filing the NTA with the immigration court. This would give the noncitizen an opportunity to review the NTA for glaring errors like mistyped addresses, alert the noncitizen to the fact that ICE and the immigration courts are distinct agencies, give the noncitizen notice of the hearing date and time pursuant to the INA’s current requirements, ensure that the noncitizen knows to expect to receive the EOIR-generated notice of hearing, and allow the noncitizen to follow up with the specified court if no such notice is received. Eliminating the delay between service of the NTA and filing it with the immigration court would reduce the likelihood of ICE using an outdated address on the filed NTA and would give the noncitizen stronger grounds to appeal an in absentia removal order, if needed, while also allowing Article III courts to easily review the NTAs for statutory defects. Like the first proposal, this solution would be very low cost because ICE already routinely meets with noncitizens in the United States who are subject to removal proceedings. As Maria’s case illustrates, ICE is typically the sole federal agency to interact consistently with such removable noncitizens, often meeting with them on a monthly or annual basis. It would be a de minimis cost for ICE to serve a new NTA on a noncitizen during a regularly scheduled ICE check-in.
Conclusion[89]
ICE continues to follow several longstanding practices that routinely deprive noncitizens of both notice of and an opportunity to participate in their hearings as required by the INA. Most notably, ICE has maintained its two-step process of serving noncitizens with invalid, placeholder NTAs and filing modified NTAs with the immigration courts months or years later, despite two adverse decisions from the Supreme Court reiterating that those actions fall short of ICE’s duty under the INA. However, during the long delay between those two steps, a period that ICE and EOIR officials have called “No Man’s Land,” ICE also fails to share the noncitizen’s updated address and phone number with the immigration courts. The result is as predictable as it is unfair: the immigration court sends an EOIR-generated notice of hearing to an outdated address provided by ICE, the noncitizen misses the hearing, and subsequently is ordered removed in absentia. To address ICE’s extreme abuse of its discretion and avoid further due process violations, we recommend that Congress require that: (1) DHS and DOJ maintain a single, shared database with all the noncitizen’s contact information; and (2) ICE serve a new NTA on the noncitizen, personally, within days of filing it with the immigration courts.
Appendix
A. Declaration of Anne Pilsbury, Central American Legal Assistance
I am an attorney and have been licensed in the District of Columbia since 1977. I am the Director of Central American Legal Assistance located at 240 Hooper Street, Brooklyn, N.Y., 11211 and have worked there since 1986.
This organization has been in existence since 1986 to provide free legal assistance to Central American asylum seekers. Our program aids approximately 500 newly arrived immigrants a year. Asylum seekers who enter the U.S. without visas are, if encountered, placed in removal proceedings by the Immigration & Customs Enforcement (ICE) branch of the Department of Homeland Security (DHS).
The most common practice until very recently was to serve the immigrant with an official document called a Notice to Appear (NTA) that alleges the grounds for the immigrant's removal and states that a hearing on the charges will be held at some future time and place. Very often, the time, date and place are left unstated.[90] After being given an NTA, immigrants are often released but told to report to the nearest ICE office in their intended destination.
U.S. Customs and Border Protection (CBP) and ICE officials never, in my experience, take the time to explain the difference between the various governmental offices involved in the immigrant's removal proceedings. New immigrants are left with the impression that their obligation is to report to ICE. But immigration courts are part of the Department of Justice, while CBP and ICE are part of DHS.
I have interviewed at least 30 immigrants in the last year who have reported to ICE. They have said that ICE officials seldom, if ever, explain that the immigrant should also check a public 1-800 phone number to see if their case has been scheduled for a hearing before an immigration judge. The ICE official simply notes when the immigrant should next report to ICE.
Many immigrants learn they have been ordered removed in absentia only when they report back to ICE-typically several months after their in absentia proceedings. ICE officials do tell them that they have been ordered removed and it is only then that immigrants realize they need legal counsel to remain in the country. They then come to my organization for help, startled and dismayed that they were ordered removed without a hearing.
While many immigrants notify ICE officials at their check-ins that they have updated their address, ICE officials do not to my knowledge share this information with the Executive Office for Immigration Review (EOIR) nor tell immigrants that they must do this themselves.
Signed on December 1, 2021.
B. Declaration of Jennifer A. Williams, Building One Community -Center for Immigration Opportunity
I am an attorney and have been licensed to practice law in New York since 2007. I have been practicing immigration law, in particular removal defense, since on or about 2012.
I am the Immigration Removal Defense Director of Building One Community - The Center for Immigration Opportunity, a non-profit organization located at 75 Selleck Street, Stamford, Connecticut. Since opening its doors in 2011, Building One Community's mission is to advance the successful integration of immigrants and their families.
Building One Community provides pro bono legal representation for individuals and families in removal proceedings before the Hmiford Immigration Court. The majority of clients that we serve are asylum seekers, particularly unaccompanied minors and women, from Central America.
Building One Community's clients have suffered tremendously in their home countries prior to coming to the U.S. due to domestic/gender violence, sex and labor trafficking, crime, and endemic pove1fy and malnutrition. They often represent a complex service population due to lack of formal education and higher rates of anxiety, depression and post-traumatic stress disorder.
This year, Building One Community has interviewed over 30 asylum seekers. The majority of these individuals are required to report to at the Hmiford local Immigration and Customs Enforcement (ICE) sub-office after receiving an Order of Release of Recognizance at the southern border. They are asked to regularly check in with an ICE Enforcement and Removal Operations (ERO) officer. Some of these individuals may have also received a Notice to Appear (NTA) with their Order of Release of Recognizance, which may indicate a date, time and location for their removal proceeding.
For those asylum seekers that have not received an NTA, and are still awaiting one in the mail, the majority are never told by their deportation officer during their ICE/ERO check-in about an upcoming cou1i date. It is only during a meeting with a lawyer from our office do they first learn about the Executive Office for Immigrant Review (EOIR) 1-800 number or the EOIR online case portal in order to conduct weekly check-ins about future comi dates. We have also encountered individuals seeking legal assistance in a panic because she or he has learned for the first time about an in absentia order entered against them during one of their ICE/ERO check-ins. The order is usually from their initial first master calendar hearing.
Building One Community still receives many NTAs without indicating a date and time for removal proceedings. More disturbing are the defective NTAs, beyond failing to state a date and time, do not even indicate a location for the immigration comi (merely stating "TBD" or "At A Place To Be Set"). Thus, it is impossible for an immigrant to file a change of address form (in order to receive proper notices of hearings) or to file a motion for change of venue, or to lodge/file an asylum application within the one-year filing deadline, or to simply know where one will required to appear.
Signed on December 9, 2021.
C. Declaration of Michelle Méndez, Catholic Legal Immigration Network, Inc. (CLINIC)
I am the Director of the Defending Vulnerable Populations (DVP) program at Catholic Legal Immigration Network, Inc. (CLINIC), headquartered in Silver Spring, Maryland. The information in this declaration is based on my personal knowledge and on data that CLINIC maintains in our ordinary course of business. I am an attorney licensed in Maryland. I have worked at CLINIC since January 2015. However, starting on January 3, 2022, I will serve as the new Director of Legal Resources and Training at the National Immigration Project for the National Lawyers Guild.
As the Director of the DVP program at CLINIC, I manage a team of seven attorneys, two legal assistants, and various consulting attorneys. Our team issues written resources, plans and executes in-person and web-based trainings, responds to requests for technical support, strategizes on new projects that serve the legal needs of the immigrant community, develops and presents legal challenges in federal court, submits Freedom of Information Act requests, issues reports, engages with media, and represents clients in select cases before the immigration court, the Board of Immigration Appeals (BIA), and the U.S. Courts of Appeals.
From 2009 to 2015, before joining CLINIC, I worked in the Immigration Legal Services program at Catholic Charities for the Archdiocese of Washington where I represented detained and non-detained immigrants in immigration court, on appeals to the BIA, and on petitions for review to the U.S. Court of Appeals for the Fourth Circuit. My practice included consulting with many individuals with in absentia removal orders and representation on motions to reopen CLINIC’s Mission and Services.
CLINIC is the nation’s largest network of nonprofit legal immigration services programs. The CLINIC network includes approximately 400 affiliated immigration programs, which operate out of more than 400 offices in 49 states and the District of Columbia. The network includes faith-based institutions, farmworker programs, domestic violence shelters, ethnic community- focused organizations, libraries and other non-profit entities that serve immigrants. CLINIC’s network employs more than 2,300 attorneys, United States Department of Justice (DOJ) accredited representatives, and paralegals who, in turn, serve approximately 500,000 low-income immigrants each year.
Members of the network, referred to as “affiliates,” provide pro bono or low-cost immigration services using materials, training, education, best practices, and sometimes, funding provided by CLINIC. CLINIC’s affiliates run the gamut from large to very small organizations, and include organizations that provide a wide array of immigration legal services before United States Citizenship and Immigration Services (USCIS), the immigration courts, and the BIA.
CLINIC’s trainings cover substantive law, procedures, trial skills, and legal best practices. CLINIC’s DVP Program has offered numerous trainings on responding to in absentia orders and filing motions to reopen. In addition to these trainings, CLINIC also provides technical support to our affiliates through the “Ask-the-Experts” portal on our website. Attorneys and DOJ accredited representatives from affiliates submit inquiries regarding individual immigration matters that are particularly complex, including motions to reopen, and CLINIC staff provide an expert consultation.
In addition to the technical assistance and trainings described above, CLINIC’s DVP program drafts comprehensive written resources. DVP’s areas of expertise on which we support affiliates include: removal defense, including appeals to the BIA and petitions for review at the U.S. courts of appeals, motions to reopen to the IJ and BIA, asylum, Special Immigration Juvenile Status (SIJS) petitions, analyzing the consequences of criminal conduct on immigration status, trial skills, and legal writing.
CLINIC has prioritized the provision of removal defense program management support, technical assistance, and training because CLINIC understands that winning immigration relief in immigration court and before the BIA is highly dependent on access to competent counsel. Many CLINIC affiliates provide pro bono representation before the Executive Office for Immigration Review (EOIR); indeed, providing free or low cost services to individuals in removal proceedings is a critical part of the mission of CLINIC and our affiliates. A significant percentage of CLINIC affiliates provide removal defense and each year CLINIC’s affiliate network assists hundreds of individuals in removal proceedings.
1. CLINIC's Removal Defense Direct Representation Projects
In addition to the support CLINIC’s DVP Program provides our non-profit affiliate network, DVP also provides direct representation and pro bono referrals through three remote-based projects providing removal defense assistance on a nationwide basis: 1) the BIA Pro Bono Project, 2) the Formerly Separated Families Project, and 3) the Remote Motions to Reopen Project.
The DVP Program’s Remote Motions to Reopen Project provides representation to formerly separated families, families released from family detention, asylum-seekers, and other vulnerable people around the country in filing motions to reopen before the immigration courts and the BIA. Through this Project, CLINIC either represents these individuals directly or partners with pro bono legal counsel to provide high quality representation on motions to reopen. Once the immigration judge or the BIA reopens a case allowing the individual to continue with their removal proceedings, CLINIC places the case with competent local counsel, which includes CLINIC affiliates, and provides mentorship assistance as needed. In 2019, CLINIC hired one attorney to focus specifically on this Project and we have publicized the Project among pro bono partners, including law firms. The Remote Motions to Reopen Project has accepted 39 cases thus far. As a result of this work, CLINIC has gained expertise on motions to reopen practice, and we are regarded in the field as an organizational expert.
Prior to establishing the Motions to Reopen Project, in 2014, CLINIC saw that in response to an influx of Central American families fleeing violence, the Obama Administration ordered immigration judges to rapidly adjudicate these cases, leading to due process concerns, including over-use of in absentia removal orders. CLINIC partnered with the Asylum Seeker Advocacy Project (ASAP) to represent families ordered removed in absentia. Through motions to reopen, we successfully challenged the in absentia orders in all 46 cases where we provided representation. This means that various immigration judges across the country granted our motions to reopen in these cases. As a result of observations during this period, CLINIC and ASAP produced a 2018 report, Denied a Day in Court: The Government’s Use of In Absentia Removal Orders Against Families Seeking Asylum.[91]
2. Errors in Information Obtained and Recorded by the Department of Homeland Security
Prior to the “Migration Protection Protocols” and Title 42, when asylum seekers without a visa or documentation presented themselves at the border, U.S. Customs and Border Protection (CBP) apprehended them and Immigration and Customs Enforcement (ICE) detained them. While in immigration custody, an ICE officer typically conducted a brief initial interview and prepares a Form I-213 [Record of Deportable/Inadmissible Alien].
In working on motions to reopen and representing clients in removal proceedings, I regularly see errors in the DHS interview notes and Form I-213s. For example, in an I- 213 prepared in a recent case, DHS included an address for where the respondent intended to go that was entirely unrelated to the respondent, listing an address in a different state than he was in and different state from where he always maintained he intended to go. The I-213 also contained other inaccurate information, including misstating the respondent’s parents’ names.
For those individuals whom DHS processes for release from custody, DHS places many of them in removal proceedings in the first instance or does so after they pass a USCIS credible fear interview. When DHS serves a Notice to Appear (NTA) to those who are detained or are being processed for released, DHS should list the individual’s final destination as that process would best insulate the individual or family from an in absentia removal order. However, this process has varied. In my experience, if DHS serves the NTA before DHS makes a custody determination, DHS tends to list the detention center as the respondent’s address and then, when the noncitizen is released, there is a form DHS sends to the immigration court with the “Alien Address.” However, in family separation cases, DHS included the address of the temporary shelter where the noncitizens were briefly staying in before traveling to their final address, even though the family stayed at the shelter for only a night or two. For a family of individuals detained together, and who will be released together, DHS does not always list the same address on the parent’s NTA as on the minor child’s NTA. Therefore, DHS may list the detention center, the temporary shelter where they are going briefly before traveling to their final address, or the final address of where the respondents are intending to reside upon release on the NTA.
In my experience, DHS often lists incorrect address information on the NTA, either listing an entirely incorrect address, or not accurately recording the address.
3. Inaccurate or Incomplete Information Provided by the Department of Homeland Security
Asylum seekers and others who are placed in removal proceedings when released by DHS are often placed on an order of supervision and required to check-in with the ICE office where they told DHS they intended to reside on a date set by ICE. To trigger mandatory check-ins with ICE, DHS typically completes ICE Form I-220B to establish the Order of Supervision, which lists the individual’s address, and DHS often creates ICE Form I-220B on the same day that they issue the NTA. Individuals placed on an Order of Supervision typically are required to check-in at the local ICE office that corresponds to their final destination address (often far away from the border region where they were initially detained) shortly after their release from immigration custody. DHS typically requires individuals to check-in with the local ICE office shortly after their release from immigration custody and periodically thereafter and the frequency of check-ins will vary and change over time. For example, DHS may schedule an individual to appear to the local ICE office within a month of the release from custody and the local ICE office will then schedule the individual to report on a monthly basis or every six months. DHS may also place individuals on other ICE monitoring programs, including the Intensive Supervision Appearance Program (ISAP).
In my experience, many individuals who are released from immigration custody do not understand that there is both an ICE check-in requirement and a separate requirement to appear before the immigration court for a hearing at a different location[92] because DHS rarely explains this nuance adequately. As such, many individuals duly comply with their ICE check-in appointments, believing they are taking the required steps to comply with their immigration case, but do not understand, nor are informed by local ICE at those check-in appointments, that the immigration court hearing is separate and apart from the check-ins with ICE. Instead, ICE typically just schedules the individual for their next ICE check-in appointment instead of taking the time to ensure that the individual knows how to adequately navigate the immigration appearance maze. ICE may inform individuals at their check-in appointments if they are ordered removed in absentia, often many months after the order, but by then it is extremely complicated for individuals to understand the legal means to reopen their cases or find or afford competent legal counsel.
In my experience, DHS rarely informs individuals who are placed on an order of supervision that when they move addresses, they are required to update their address not only with their deportation officer at their check-in appointment with local ICE, but that they also must also file an EOIR-33 with the immigration court and file an AR-11 with USCIS. Accordingly, individuals will regularly attend their ICE check-in appointments, update their address with ICE at those in-person appointments, and believe that they have taken the appropriate steps to update their address for all immigration purposes. Upon learning the new address of a noncitizen in removal proceedings, DHS almost never informs individuals that they need to also file an EOIR-33 or AR-11. Nor does DHS explain the reason for the various address update requirements and consequences of not filing all the different change of address forms. ICE does not notify the Immigration Court of change of addresses reported at ICE check-in appointments. More importantly, I have never seen a record in which during the in absentia hearings the ICE attorney[93] highlighted that the individual had diligently complied with ICE check-ins or otherwise references those check-ins and the information provided by the individual during the check-in. If ICE attorneys highlighted when individuals comply with their ICE check-ins, this would likely prompt the immigration judge to prop for more information and continue the hearing.
In conclusion, many individuals with whom I have worked are non-English speaking, often with limited education. This lack of understanding often exacerbates the ICE deportation officers’ failure to explain immigration court requirements. Ultimately, many individuals fully intend to pursue their immigration cases, as evidenced by regularly attending ICE check-in requirements, but do not understand the complex U.S. immigration system and roles of the various agencies involved.
4. Delays and Inconsistencies in DHS and EOIR Processing of Cases
When DHS serves an NTA, that NTA must be filed with an immigration court before removal proceedings are initiated. In my experience, there is a huge variation in the time frame in which DHS files the NTA with an immigration court, sometimes being filed almost immediately after service upon the respondent, and other times filed months, or even years, later. After service of the NTA, DHS does not inform the non-citizen when it files the NTA with an immigration court. In some instances, DHS will not file the NTA with the immigration court at all, and in those circumstances, the noncitizen is not informed by DHS that the agency declined to file the NTA with the immigration court. Even if DHS is informed through an ICE check-in or otherwise that an individual has changed addresses between the service of the NTA and the filing of the NTA with the immigration court, I have never witnessed or heard about DHS providing the immigration court with the individual’s new address.
Once an NTA is received by the immigration court, immigration court personnel must then docket the NTA and enter it into the EOIR Automated Case Information system. Once that is done, EOIR generates and mails a hearing notice and makes information about the case available in the EOIR system, which can be assessed by phone (EOIR hotline: 1-800-898-7180) or an online case status portal[94] if the individual has an alien registration number (A number) and does not have a case based on domestic violence or similarly sensitive issues that require confidentiality. Many immigration courts in recent years have had long delays between receipt of the NTA from DHS and the case being docketed. Therefore, an individual may wait weeks or several years for the immigration court to schedule a hearing.
Before a case is docketed in the EOIR system, an individual is not able to file any documents with the immigration court, including the EOIR-33 change of address form. If an individual tries to file an EOIR-33 with the immigration court before DHS has filed the NTA with the immigration court or before the NTA is docketed in the EOIR system, the EOIR-33 will be rejected, creating a Catch-22 for the noncitizen. The only way the noncitizen would learn that the NTA has been filed, would be through receipt in the mail of the EOIR-generated notice of hearing. But EOIR will send that notice to the address it has on file rather than the address in the EOIR-33 which it has rejected, almost guaranteeing that the noncitizen does not receive notice of the hearing. The respondent has no way of knowing when the NTA is filed other than by regularly checking the EOIR hotline, which may not reflect accurate information, as explained below. In my thirteen years practicing immigration law, I witnessed this scenario at least a hundred times, in particular in family detention cases and then with family separation cases.
Beyond obtaining legal counsel, practically, there is no way for an individual who was served with an NTA to understand the potential delays between an NTA being served and the case being docketed with the immigration court. Even attorneys whom I have mentored have sometimes not understood that an immigration court does not gain jurisdiction over the individual and their case until DHS files the NTA with an immigration court and the immigration court dockets the NTA. Conversely, those attorneys who do understand this difference will often decline representing a case on the grounds that the case is not yet ripe for representation. Without counsel who understand this nuance and are willing to represent the individual, the individual must rely on the orientation, if any, of ICE or its contractors. Unfortunately, in my experience, ICE officials rarely explain the existence of the EOIR hotline and EOIR online case status portal to access information about when the noncitizen’s next hearing will be.
Furthermore, the EOIR hotline and EOIR online case status portal do not always reflect all the correct and most up to date information. This lack of timely updating of the system has been particularly apparent during the COVID-19 pandemic, when many courts have been closed or dramatically reduced the number of hearings, resulting in many last- minute changes to hearing dates and times.
Signed on December 9, 2021.
D. Declaration of Shannon McKinnon, Legal Director of Immigrant Justice Corps
I am an attorney and have been licensed in the state of New York since 2005. I am the Legal Director of Immigrant Justice Corps (IJC), located at 17 Battery Place, Suite #1234, New York, New York 10004.
Founded in January 2014, IJC is the country’s first fellowship program dedicated to meeting the need for high-quality legal assistance for low-income immigrants seeking permanent legal status and fighting deportation. IJC recruits talented lawyers to the Justice Fellowship and high-achieving college graduates to the Community Fellowship. The fellows are placed at leading non-profit legal service providers and community-based organizations, including at IJC, where they provide direct representation to immigrants.
Our in-house immigration legal services team of four supervising attorneys, a senior paralegal, two Justice Fellows and thirteen Community Fellows provides immigration legal services directly to low-income immigrant New Yorkers. Other staff members, including our Fellowship Director, Deputy Director and Executive Director are also practicing immigration attorneys. As part of this work, we represent individuals and families who have recently arrived in the United States and are seeking asylum while in removal proceedings. Each of the practicing attorneys at IJC have also practiced immigration law at other non-profit organizations in New York and New Jersey.
When someone is encountered in the United States without a visa, they are generally served with a charging document called a Notice to Appear (NTA) and placed in removal proceedings by the Immigration and Customs Enforcement (ICE) branch of the Department of Homeland Security (DHS). The NTA indicates the factual allegations and legal charges that ICE alleges support removal. The NTA is also statutorily required to provide information about the time, date and location of a future hearing on these charges. It most often does not actually provide this logistical information, instead indicating that the time, date and location are “to be determined.” The specific requirements of notice provided in the NTA have been the subject of recent litigation.[95] Notice of where to attend an immigration court hearing is generally not provided until people receive a separate notice from the immigration court.
If individuals or families are not detained or subjected to the Migrant Protection Protocols (MPP) and forced to remain in Mexico, they are released into the United States after being served with an NTA. They are generally required to indicate their intended destination in the United States before being released and instructed to report to a deportation officer at the Enforcement and Removal Operations (ERO) department of the ICE office closest to the destination provided.
If ICE files the NTA with the immigration court closest to this destination, removal proceedings commence, and individuals or families are generally required to continue reporting to ICE while also attending hearings at the immigration court. The location where people report to ICE and attend their immigration hearings are most often in the same building, on different floors. For example, at 26 Federal Plaza in New York City, ICE ERO is on the 9th Floor while the immigration court occupies the 12th and 14th floors.
In my experience, immigrants are often very confused about the different agencies that comprise the immigration system and how these relate to the immigration court. This is closely related to the complexity of immigration law itself. Most of the immigrants we serve have very limited, if any, English proficiency and are wholly unfamiliar with U.S. government agencies. A significant part of our representation of individuals and families who have recently arrived in the United States is explaining the differing roles of ICE, U.S. Customs and Border Protection (CBP) and the immigration courts, which are part of the Department of Justice. For unrepresented people, these distinctions often remain unclear.
ICE has sometimes not filed NTAs with the relevant immigration court for months or even years after first serving the NTA on an individual or family, particularly when there has been a large influx of individuals and families seeking protection in the United States. When ICE does not file an NTA, the immigration court does not have jurisdiction over the case and will not accept any filings related to the case. This includes form EOIR-33 IC, which immigrants in removal proceedings must use to change their address with the court. I have personally attempted, on behalf of approximately 7 clients with unfiled NTAs, to file a change of address for them with the immigration court and had each of those filings rejected for lack of jurisdiction.
In my experience, when immigrants report a change of address to the ICE deportation officer during a check in with the ERO office, ICE does not share this information with the immigration court and neither ICE nor anyone else updates the address on the NTA. Immigrants are required to change their address separately with the immigration court. But, as stated above, one cannot change their address with the immigration court unless ICE has already filed an NTA with the immigration court. If an individual moves prior to the NTA being filed, notice of the immigration court hearing will go to the address on the NTA instead of their current address.
If an immigrant does not receive notice of an immigration court hearing and does not attend that hearing, they will be ordered removed in absentia. A provision exists under the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C)(i), for people who have not received notice of an immigration court hearing to reopen their removal proceedings by making a motion. In my experience, immigrants are unable to do so without assistance from legal counsel. Many nonprofit organizations that provide legal services are at or over capacity and unable to accept cases where a removal order has already been entered. Therefore, it is difficult for immigrants to obtain representation to address an in absentia removal order.
Furthermore, due to the same capacity limitations, many nonprofit immigration legal services organizations are unable to accept cases in which the NTA has not yet been filed with the immigration court. Immigrants who have been issued NTAs that ICE has not yet filed with the immigrant court are often instructed to return to the legal services organization once they have a court date scheduled. Generally, the organization will give information about the automated immigration court hotline which provides date, time and location information about immigration court hearings.
I have found that CBP and ICE almost never provide people information about the immigration court hotline or explain what information can be obtained there. It is a regular part of my practice, and the practice of IJC attorneys, to explain this hotline to anyone we screen who has been issued an NTA and to advise them to call the hotline frequently in order to check if a hearing with the immigration court has been scheduled.
Unrepresented individuals very likely do not have information about what information the hotline provides nor how to use it and therefore assume that if they have changed their address with the deportation officer during check in, they have complied with the obligation to keep the government informed of their current address.
Signed on December 9, 2021.
E. Declaration of Stephanie E. Gibbs, Safe Passage Project
I am an attorney and have been licensed in the State of New York since 2012. I am the Supervising Litigation Attorney at Safe Passage Project, located at 185 West Broadway, New York, NY 10013 and have worked there since 2015. This organization was founded in 2013 to provide free legal assistance to immigrant youth in the State of New York.
Our program currently provides legal representation to over 1200 immigrant youth. In my employment with Safe Passage Project, I have participated in regular ICARE screenings of youth at immigration court (when these screenings still took place), served as “friend of court” on behalf of youth on the day of their screening – and thereby observed numerous master calendar hearings at the Executive Office for Immigration Review (EOIR) Immigration Court. These screenings occurred at 26 Federal Plaza, New York, NY, 10278, and the court would routinely conduct in absentia hearings at the end of the day.
Of the young immigrants that Safe Passage Project represents, a significant percentage of them are recent arrivals to the United States, and have been processed through Customs and Border Protection (CBP) and Office of Refugee Resettlement (ORR) custody. As is standard practice when first encountered by CBP, these youth are placed in removal proceedings by the Department of Homeland Security (DHS), either by an officer with CBP or with Immigration and Customs Enforcement (ICE).
To commence removal proceedings against the young person (or any respondent), the most common practice is to serve said young person with an official document called a Notice to Appear (NTA) that alleges the grounds for the young person’s removal and states that a hearing on those charges will be held at a given time and place. Almost invariably in removal matters defended by our office, the NTA lacks essential hearing information, including a stated time, date and place for the youth to appear and respond to the allegations on the NTA. In my experience, the lack of hearing information is the rule, rather than the exception, for NTAs. In place of these details, ICE or CBP puts “TBD.”
After being served an NTA—among many other immigration-related documents—immigrants are subsequently processed and released from ORR custody. As part of ORR procedure, these youth are released into the custody of a sponsor, who is then obligated by ORR to bring them to all required immigration court appearances and to notify all concerned agencies of any changes of address.
Sometime after the NTA is issued and served on the young person, ICE will then file the NTA with the appropriate DOJ–EOIR immigration court in their jurisdiction. Upon receipt of the NTA and creation of a “court file,” the EOIR immigration court generates the specific hearing notice with details regarding time, date, and hearing location. The amount of time between each of these steps is, from the perspective of respondents and respondents’ counsel, unpredictable and inconsistent, but invariably, very long.
However, if a respondent, youth or otherwise, does not appear for a scheduled EOIR immigration court hearing, they risk being issued an Order of Removal in absentia. One of the key factors that is reviewed during an in absentia hearing is whether the address of the respondent is accurate. The immigration judge will verify the address that is on file with the EOIR immigration court is cross-referenced with the address where the hearing notice was served. The court will also check the court-file for any filed changes of address.
In order to change an address with EOIR, typically the respondent must file an EOIR-33 with the court and properly serve the same on ICE-Office of the Principle Legal Advisor (OPLA). The forms are available on EOIR’s website and are pre-addressed for each immigration court location. However, if the NTA has not yet been filed with EOIR or the EOIR immigration court has not yet created a “court file,” any attempt to file an EOIR-33 with the court will be rejected.
Safe Passage Project has had many new cases where the case file contains an NTA that has been issued, but the young person does not yet have a hearing notice and their A number is not reflected in EOIR’s system (either through the online case portal or by phone hotline number), indicating that a court file has not yet been opened. It is not uncommon that our clients relocate after their initial NTA is issued but before their “court file” has been opened. Therefore, our office frequently must navigate this interstitial tension.
When ICE has issued an NTA but EOIR has not scheduled proceedings, we sometimes continue to attempt to file the EOIR-33 at the court window on the 12th Floor of 26 Federal Plaza, despite knowing that it will be rejected. We do this to demonstrate to the immigration court that we have done everything we can to update our clients’ addresses with the court. Additionally, we have tried filing G-28s reflecting updated address information with ICE-OPLA on the 11th Floor of 26 Federal Plaza and with ICE- Enforcement and Removal Operations (ERO) on the 9th Floor of 26 Federal Plaza, but it is unclear if this information is accepted or registered in the respective systems.[96] Lastly, in at least one matter, I was instructed to file an AR-11 with ICE-ERO despite the fact that this a form for USCIS, ICE’s sister agency, and no matters were pending before it.
The only method we have found to ensure that in these circumstances our clients do not miss a hearing and risk an in absentia order is to religiously monitor the EOIR system to catch an EOIR court date as soon as it is scheduled–typically with 3 weeks’ notice, but sometimes less.
While it is less common for our office, we do have clients who are also subject to ICE reporting at 26 Federal Plaza. Safe Passage Project has a number of clients who are young mothers, under the age of 21 (as required for representation by our office) and have entered the U.S. with tender-aged children. Rather than being processed by CBP into ORR custody, these young women are detained for a period in ICE family detention, and then released on their own recognizance, provided a copy of all immigration documents including the NTA, and told to report at the local ICE office in their destined jurisdiction—for our office, that usually means the ICE Enforcement and Removal Operations (ERO) office located at 26 Federal Plaza, 9th Floor, New York, New York 10278.
Frequently, when we meet new clients who are subject to ICE reporting at 26 Federal Plaza, they are confused about where they are required to go and why. They do not readily distinguish “immigration court” from “ICE.” Often, the only way to clarify what is happening procedurally is to ask clients, “Did you take the elevator to the 9th Floor, or 12th Floor?”
The ICE reporting sheet is yet another immigration paper that is issued separate from the NTA and any hearing notice. Clients who routinely report have this paper and know they must keep it and get it signed on their next reporting date. But it is unclear, as relayed by our clients back, if any other information is conveyed to those reporting at the time they appear before ICE-ERO.
Even when a client is reporting to ICE, the process to file a change of address is unclear. The challenges as described above persist, even with ICE regularly requiring the respondent to present themselves and provide current contact information.
Signed on December 10, 2021.
F. Declaration of Rebecca Press, Unlocal
My name is Rebecca Press. I am the Legal Director of UnLocal, a non-profit immigrant rights organization dedicated to serving the needs of New York’s immigrant communities. I am an attorney duly licensed to practice law in the state of New York and have been practicing immigration law as such since 2010. The bulk of my work is with recently-arrived asylum seekers, most of whom are in removal proceedings.
Over the last twelve years, I have spoken with hundreds of asylum-seekers in removal proceedings. In or around 2014, practitioners, including myself, began to notice a considerable increase in the number of recently-arrived people required to report to Immigration and Customs Enforcement (“ICE check-ins”) in addition to attending their court hearings before the Executive Office for Immigration Review (EOIR).
In New York, up until very recently, these ICE check-ins and court hearings always took place in the same building, specifically at 26 Federal Plaza. ICE check-ins occur on the 9th floor of the building while court hearings take place either on the 12th floor or the 14th floor. The amount of confusion created by a failure to understand the difference between the ICE check-in and the court hearing cannot be overstated. Individuals with whom I consult did not—and do not because the confusion continues to this day—understand that the appointments with ICE were not appointments with the Immigration Judge. The confusion is regarding everything: the reason for the appearance, the difference in the decision-making power of ICE and EOIR, that ICE and EOIR are separate entities with distinct responsibilities, that ICE and EOIR do not communicate with each other, that ICE and EOIR are in fact located on separate floors of the same building, and on and on.
In my experience, neither ICE nor EOIR attempt to address these points of confusion. As recently as fall 2021, a new client of mine, who arrived in the United States in June 2021, expressed great confusion on this very issue. This client appeared for an ICE check-in and subsequently appeared for an EOIR hearing, in which I represented her. Prior to that hearing, she was confused about the difference and repeatedly asked why she had to appear at multiple appointments. Following the EOIR hearing it was clear that she did not understand why she had multiple appointments she had to appear for and was very confused by the different immigration agencies requiring multiple appearances from her. In her mind, they are all “immigration.” This client, and many with whom I have worked, are fortunate to have a legal advocate who explains the differences between the agencies and the appointments, and the need to comply with both requirements. Many others are not so fortunate and are at a loss to understand the differences.
While I do not know the precise number of immigrants ordered removed in absentia as a result of the profound confusion discussed here, such orders are being entered in large numbers. It is in no way surprising that this has occurred and likely continues to occur. Recently arrived immigrants almost never have command of the English language and certainly cannot be expected to understand what is not even explained to them.
Signed on December 10, 2021.
G. Declaration of Tracy J. Lawson, Brooklyn Defender Services
My name is Tracy Lawson. I am the Attorney-in-Charge of the Immigration Community Action Project (ICAP) at Brooklyn Defender Services (BDS), located in Brooklyn, New York. I have been practicing immigration law for approximately ten years.
I am one of three leaders of the BDS Immigration Practice, which consists of three distinct teams: ICAP, the New York Immigrant Family Unity Project (NYIFUP), and the Padilla Team. In addition to coordinating with the heads of those teams, I also regularly collaborate with BDS’ policy, advocacy, and law reform teams who monitor and address trends that impact the people we serve.
Currently, ICAP’s staff consists of 11 attorneys, two law graduates, three DOJ Fully Accredited Representatives, two social workers, and three administrative professionals.
This declaration is based on my personal knowledge, gathered through my own experiences, supervision of my team, and coordination with the other leaders of BDS’s Immigration Practice and our systemic reform teams. I also regularly consult and coordinate with other immigration practitioners in the nonprofit and private sectors.
1. Brooklyn Defender Service’s Immigration Practice
BDS is a full-service public defender 501(c)(3) organization that provides multi- disciplinary and client-centered criminal defense, family defense, immigration, and civil legal services, along with social work and advocacy support. Each year, we represent low- income people in nearly 30,000 criminal, family, civil, and immigration proceedings. Since 2009, BDS’s Immigration Practice has counseled, advised, or represented over 15,000 clients in immigration matters including removal defense, affirmative applications before the United States Citizenship and Immigration Services (USCIS), brief advice consultations, and immigration consequence consultations for individuals in contact with Brooklyn’s criminal and family court systems.
The Immigration Practice currently represents over 600 people in removal proceedings before the immigration courts in New York City and New Jersey and the Board of Immigration Appeals (BIA), and in federal court in petitions for review and writs of habeas corpus. BDS represents both detained and non-detained low-income individuals who, generally, reside in New York City and the surrounding areas.
BDS’s Immigration Practice encompasses approximately 75 staff, including attorneys, BIA accredited representatives, support staff, and social workers, across the three teams.
The NYIFUP team is a New York City-funded assigned counsel program for indigent and low-income detained immigrants in removal proceedings at the Varick Street, New York Immigration Court.
The ICAP team represents individuals in non-detained removal cases and affirmative applications for immigration relief and status. ICAP represents individuals referred from other BDS practice areas, in particular the criminal defense and family defense units, and provides immigration screening and representation to community members through its intake system. ICAP also provides limited representation through brief advice consultations with noncitizens. In addition, ICAP serves young people in removal proceedings, applications for special immigrant juvenile status (SIJS), and deferred action for childhood arrivals (DACA), many of whom have been referred by the Administration for Children’s Services and foster care agencies.
The Padilla team provides immigration consequence consultations for individuals represented by BDS in Brooklyn’s criminal and family court systems. The Padilla team also provides limited representation counseling through immigration screenings and Know Your Rights advice consultations.
2. Failure To Provide Noncitizens Proper Notice of Their Immigration Hearing Increases the Likelihood of Erroneous or Unnecessary Removal Orders
BDS regularly represents people who are not provided official notice by the Department of Homeland Security (DHS) that DHS has filed removal proceedings against them, because DHS fails to update accurate contact information, despite attempts by the noncitizen to provide their address. ICE brings charges against a noncitizen through an official document called a Notice to Appear (NTA) that alleges the grounds of removal and includes a section meant to include the time, date, and place for the initial Master Calendar Hearing in immigration court[97]. In our experience, ICE frequently leaves blank and unspecified the time, date, and place for the initial hearing on NTAs. The Supreme Court has repeatedly recognized this problem.[98] More recently we have seen that even when ICE provides the time and date for the initial hearing on the NTA, it is often random and arbitrary and, in my experience, hearings are frequently not actually held on that date.
Although DHS may provide an NTA to an individual upon their release from DHS custody, removal proceedings are not initiated against them until ICE files the NTA with the Executive Office of Immigration Review (EOIR) at the local immigration court. See 8 C.F.R. § 1003.14. In our experience, it often takes ICE many months and, at times, more than a year to file an NTA with EOIR. Once ICE files the NTA with EOIR, the immigration court creates the court file and schedules the noncitizen for their Master Calendar Hearing. The noncitizen then receives a hearing date in the mail at the address that ICE puts on the filed NTA.
Many of the people we represent move between the time DHS originally completes the NTA and when ICE finally gets around to filing it with EOIR. In our experience, despite best efforts, it is very difficult for noncitizens to update their address with DHS, and EOIR will not accept an individual’s attempt to update their address prior to an NTA being filed, as the immigration court has not yet created that individual’s case file or record. The result is that DHS sends the NTAs to incorrect addresses, despite noncitizens making efforts to update the address, and does not give noncitizens proper or accurate notice of their initial Master Calendar Hearing.
Many of the people we represent remain subject to ICE reporting and supervision after they are released from ICE custody and are required to check-in regularly with their Deportation Officers at the local ICE Field Office. We sometimes attend the ICE check-in appointment with the people we represent, and often (at least, pre-COVID) their check-in dates coincide with EOIR court appearances. At those ICE check-ins, noncitizens will confirm or update their address with their ICE Deportation Officers. However, in our experience, changing or confirming an address during an ICE check-in appointment does not necessarily result in ICE using the correct address on an NTA.
Form EOIR-33 is used in immigration court to change address with EOIR. However, in our experience, a noncitizen cannot file a Form EOIR-33 with the immigration court before ICE has filed the NTA with EOIR, because there is not yet a court file. People we represent have tried to file Form EOIR-33s in person to change their address with EOIR, but court staff reject the forms since the immigration court does not yet have any record or file in which to record the change.
The penalty for missing an immigration hearing is severe: an in absentia removal order, making the noncitizen subject to deportation and immigration detention, and unable to pursue immigration relief. If the individual has applied for asylum and was issued an employment authorization document, a removal order could also result in the suspension of that authorization and loss of employment.
As a result, for people we represent who have been served an NTA by ICE but their NTA has not been filed with EOIR by ICE, BDS attorneys and DOJ accredited representatives have developed a practice of checking the EOIR Automated Case Information System’s website or phoneline to see if a hearing has been scheduled yet. However, this is a manual, stop-gap process and does not constitute proper notice to the noncitizen. It also unnecessarily taxes organizations’ resources and respondents’ time.
BDS attorneys regularly file motions to reopen in absentia removal orders based on improper notice, particularly for individuals who were pro se when they were ordered removed. However, such motions to reopen removal proceedings are complex and resource intensive as they require substantial legal briefing and evidentiary support where the noncitizen shows that they were ordered removed in absentia because they were not provided proper notice of a hearing.[99] Additionally, these motions may take months to be adjudicated, which not only delays the removal case but places yet another administrative burden on immigration judges in an already backlogged system.
As shown in the examples below, the government’s administrative dysfunction is particularly onerous for pro se individuals and legal services organizations. As there is no federal right to assigned counsel in immigration court, noncitizens are frequently pro se in their immigration cases, particularly at the inception of the case when these address issues arise. As there is no federal funding for providing representation in removal proceedings for indigent people, these address issues tax the already-strained resources of legal services organizations who help indigent individuals, thus limiting the number of people we can serve. Each trip to immigration court for a non-existent hearing, regularly checking the EOIR Case Status system because proper notice is not assured and preparing motions to reopen in absentia removal orders take a significant amount of time for BDS staff. All of this is completely unnecessary if DHS would just effectively maintain respondents’ addresses prior to filing an NTA.
3. Examples Where People Were Not Provided Proper Notice of Their Initial Hearing
Asylum seekers and unaccompanied children, in particular, may move one or more times in the first year they are in the country. However, for individuals who are newly arrived to the United States it is extremely difficult, if not impossible, to change their address with ICE or EOIR until DHS files the NTA with the immigration court. For example, BDS represents a child, John,[100] who came to the United States when he was eleven years old as an unaccompanied child with his older sibling. Both children were put in Office of Refugee Resettlement (ORR) custody and eventually released to their parent, who was already in the United States, and given NTAs. BDS began representing John soon after release, several years ago. Although DHS soon filed the older sibling’s NTA with EOIR upon release from ORR custody, John’s NTA was not filed. As a result, when John and his family moved to a different address, they were able to file a Form EOIR-33 change of address with the immigration court for the older child because the court had a case file for him, but they were not able to file the EOIR-33 for John—because DHS had not yet filed his NTA with EOIR, the immigration court had no case file for John. In order to avoid an in absentia removal order for John, the BDS attorney who represents him regularly checked the EOIR Case Status System. John’s case did not even show up in the system until the middle of 2021—namely, when DHS filed his NTA with EOIR—despite being released from ORR custody several years before. It was not until November 2021 that the system showed for the first time that John had court scheduled only three weeks away. However, neither John nor his parent received any notice of this hearing at the address that they attempted to update and which is the address of record for his sibling with whom he entered. John is eligible for both SIJS and asylum relief, and both John and his parent have every interest in pursuing his immigration case. Nonetheless, but-for BDS representation and his attorney manually checking the EOIR Case Status System in time, he could have been subject to an in absentia removal order.
In a similar case, another child we represent, David, entered the United States when he was six years old and spent time in ORR custody before being released to his grandmother and given an NTA. BDS began representing David soon after release, several years ago. David moved with his grandmother twice between the time he entered the United States and when ICE finally filed the NTA with EOIR over two years later. The first time they moved, their BDS attorney accompanied them to the New York immigration court to file the Form EOIR-33 with both DHS and EOIR. DHS accepted the change of address form at their filing window, but EOIR would not accept the filing. The BDS attorney also tried to enter her appearance as attorney of record by filing a Form EOIR-28 on the EOIR online portal in order to notify the immigration court of the change of address online, but the EOIR online portal would not allow her to register as the attorney of record since David’s case did not appear in their system yet. In order to avoid an in absentia removal order, the BDS attorney checked the EOIR Case Status System weekly. In this manual way, his BDS attorney was able to catch when he was scheduled for his initial Master Calendar Hearing, even though neither the attorney nor David’s grandmother ever received a hearing notice by mail to the address they had attempted to change with DHS. David is an approved SIJS beneficiary and has every incentive to pursue his immigration case. However, without BDS representation, David could have easily missed his hearing and been ordered removed in absentia.
As explained above, BDS attorneys regularly file motions to reopen in absentia removal orders. For example, BDS represents an individual, Emily, an asylum seeker. DHS provided her an NTA with a specified hearing date. Upon release from DHS custody, she went to live with her family member, but subsequently moved to a shelter. On the date specified on the NTA, Emily appeared at the New York immigration court. However, at the court, she was informed that she was not scheduled for a hearing and the court did not have her case file because DHS had not yet filed the NTA with EOIR. That day, she filed a Form EOIR-33 with DHS and the immigration court to change her address to the shelter where she was living. DHS confirmed that they had received the change of address. Several months later, DHS finally filed the NTA with EOIR using the old address of Emily’s family member, despite the fact that Emily had followed the proper process for updating her address with them. EOIR then sent Emily a hearing notice to the wrong address, which neither she nor her family member received. As she had not received notice, Emily did not appear for the hearing and was ordered removed in absentia. Luckily, the removal order was also sent to the family member’s address who was able to pass it along to Emily. Upon receiving the removal order, Emily sought help from BDS who filed a timely motion to reopen on her behalf. Three months later the immigration judge granted the motion to reopen.
It is not just recent arrivals who are subject to improper notice and in absentia removal orders. BDS represents an individual named Steven who has lived in New York for over a decade and has two young U.S. citizen children who live with their mother at Steven’s old address. Steven lives at a different address. Steven’s NTA was sent to his old address and he collected it one day when he was visiting his children. The NTA specified a hearing date. On the date listed on the NTA, Steven and a BDS attorney went to the New York immigration court to appear for his first Master Calendar Hearing. However, the court clerk informed them that DHS had not yet filed the NTA with the court and therefore they were not scheduled for any hearing. While at the court, Steven filed a Form EOIR-33 to change his address because the NTA on the address was incorrect. The clerk stamped the EOIR-33 and stated the address had been updated in the court system. The BDS attorney then tried to submit a Form EOIR-28 to enter his notice of appearance in the case so that BDS would receive a copy of any hearing notice, but he was told by the clerk that an EOIR- 28 could not be accepted yet as there was no court file. The BDS attorney then clarified whether the address could be updated and was assured that any new hearing notice would be sent to the corrected address. However, in fact, Steven’s Notice of Hearing was sent to his old address and he did not receive the notice until he was visiting his children and a family member handed it to him. By that time, the hearing had passed and he had been ordered removed in absentia. Steven informed BDS and a BDS attorney timely filed a motion to reopen on his behalf. Over seven months later the immigration judge granted the motion with a finding that Steven’s failure to appear was not his fault as he was not provided proper notice. Not only did this result in a delay of his case and extra process for the immigration judge, but had he not been represented by counsel who quickly moved to reopen his case, he may not have been able to pursue this mechanism.
Another example illustrates the massive dysfunction of DHS operations. On behalf of an individual we represent, Jack, BDS filed an affirmative application for adjustment of status to a lawful permanent resident with USCIS, the branch of DHS that handles affirmative applications. Included in the application was Jack’s primary address in New Jersey. USCIS sent all related notices, including the receipt, biometrics notice, requests for evidence, and the interview notice, to his correct address in New Jersey. However, when Jack and his BDS attorney attended his USCIS interview, they were informed that Jack had an in absentia removal order issued by the New York immigration court after he had filed his USCIS application. ICE had sent him an NTA three months after he filed his USCIS application to an old address that they found on his rap sheet and which he had never provided to DHS. The immigration court subsequently mailed him a hearing notice to that same erroneous address. Jack affirmatively applied for immigration status with USCIS, has a viable path to become a lawful permanent resident, and is already represented by counsel—he has every incentive to pursue his immigration case. Nonetheless, as neither Jack nor his attorney received the NTA or notice of his immigration court hearing, Jack was ordered removed in absentia. Once Jack and his attorney became aware of the in absentia removal order, they filed a motion to reopen. Unless Jack is able to reopen his removal case, he will be unable to pursue his application for adjustment of status.
Signed on December 16, 2021.
[1].See ASYLUM SEEKER ADVOC. PROJECT & CATH. LEGAL IMMIGR. NETWORK, INC., DENIED A DAY IN COURT: THE GOVERNMENT’S USE OF IN ABSENTIA REMOVAL ORDERS AGAINST FAMILIES SEEKING ASYLUM, 15 (2019), https://asylumadvocacy.org/wp-content/uploads/2018/04/ Denied-a-Day-in-Court-2019-Update.pdf [https://perma.cc/W5XP-W59M].
[2].8 U.S.C. § 1229a(b)(5)(A).
[3].See The Obama Administration’s Government-Wide Response to Influx of Central American Migrants at the Southwest Border, THE WHITE HOUSE OFFICE OF THE PRESS SECRETARY (Aug. 1, 2014), https://obamawhitehouse.archives.gov/the-press-office/2014/08/01/obama-administration-s-government-wide-response-influx-central-american- [https://perma.cc/77X5-CVT6]; see also Appendix C. infra Declaration of Michelle Méndez ¶ 11.
[4].See Brief of Thirty-Three Former Immigration Judges and Members of the Board of Immigration Appeals as Amici Curiae in Support of Petitioner at 3, Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (No. 19–863) [hereinafter 33 Judges Brief].
[5].Id. at 15.
[6].Pereira v. Sessions, 138 S. Ct. 2105, 2111 (2018).
[7].The declarations were originally filed as evidentiary support in an amicus brief and are reproduced in the Appendix to this Essay. See Amicus Brief in Support of Petitioners on the Petition for Review, Sac-Guarchaj v. Garland, No. 21-6288 (2nd Cir. Dec. 29, 2021) [hereinafter Amicus Brief]. Copies are available upon request.
[8].See 8 C.F.R. §§ 239.1(a), 239.2(a), 1239.2(a); Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 890 (9th Cir. 2018) (“The Department [of Homeland Security] has the sole discretion to commence removal proceedings and, prior to initiation of proceedings, may cancel a notice to appear for specified reasons.”); Ali v. Mukasey, 524 F.3d 145, 150 (2d Cir. 2008) (“The Homeland Security Act of 2002 transferred authority to commence removal proceedings from the Immigration and Naturalization Service to the Secretary of DHS.”).
[9].8 U.S.C. § 1229(a)(1)(G)(i).
[10].See id.; Niz-Chavez v. Garland, 141 S. Ct. 1474, 1479 (2021) (“Congress took pains to describe exactly what the government had to include in a notice to appear, and . . . the time and place of the hearing were among them.”); Qumsieh v. Ashcroft, 134 F. App’x 48, 50 (6th Cir. 2005) (an NTA that “did not contain a date or time for the removal hearing” did not comply with the statutory requirement of 8 U.S.C. § 1229(a)(1)(G)).
[11].See 8 C.F.R. § 1003.14(a) (“Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court . . . .”); Arenas-Yepes v. Gonzales, 421 F.3d 111, 116 (2d Cir. 2005) (merely serving an NTA on a noncitizen does not commence removal proceedings); see also U.S. DEP’T OF JUST., EOIR/AILA MEETING QUESTIONS (Mar. 22, 2001), https://www.justice.gov/eoir/eoir-aila-mar22-2001 [https://perma.cc/397T-Z7AQ] (“The Immigration Court does not have jurisdiction over a case until the NTA is filed.”) [hereinafter EOIR/AILA Meeting]; Gonzalez-Caraveo, 882 F.3d at 890 (“Once a notice to appear is filed with the Immigration Court, however, jurisdiction over the individual’s immigration case vests with the [Immigration Judge (IJ)], and it is the IJ’s duty to adjudicate the case.”).
[12].8 U.S.C. § 1229a(b)(5)(C).
[13].See e.g., id. §§ 1229(c), 1229a(b)(5)(A), 8 U.S.C. § 1229(a)(1)(F); see also Matter of G-Y-R, 23 I&N Dec. 181 (BIA 2001) (holding that 8 U.S.C. §§ 1229(a), 1229(c), and 1229a(b)(5) “preclude the entry of an in absentia order of removal when the alien has not received the Notice to Appear and thus does not know of the particular address obligations associated with removal proceedings”).
[14].8 U.S.C. § 1229(a)(1)(F).
[15].Id. §§ 1229(c), 1229a(b)(5)(A).
[16].See 8 C.F.R. § 1003.18; Fuentes-Pena v. Barr, 917 F.3d 827, 831 (5th Cir. 2019).
[17].ICE is not required to file the NTA with an immigration court. See 8 C.F.R. § 239.2 (providing a list of circumstances in which ICE may “cancel” an NTA prior to jurisdiction vesting with the immigration judge). Section 239.2(a)(7) allows for cancellation where “circumstances of the case have changed after the notice to appear was issued to such an extent that continuation is no longer in the best interest of the government.” Id. § 239.2(a)(7). There is also the standard exception for exercise of prosecutorial discretion. See, e.g., Memorandum from Doris Meissner, Comm’r INS to Reg’l Dirs., Dist. Dirs., Chief Patrol Agents, Reg’l & Dist. Counsel 6, HQOPP 50/4 (Nov. 17, 2000), https://www.shusterman.com/pdf/prosecutorialdiscretionimmigration1100.pdf [https://perma.cc/M9JK-U7W4] (“Thus, [ICE] can choose whether to issue an NTA, whether to cancel an NTA prior to filing with the immigration court or move for dismissal in immigration court (under 8 CFR 239.2) . . . .”).
[18].See Memorandum from James R. McHenry III, Dir. of the Exec. Off. of Immigr. Rev., to All of EOIR Regarding Acceptance of Notices to Appear & Use of the Interactive Scheduling Sys. (Dec. 21, 2018), https://www.justice.gov/eoir/file/1122771/download [https://perma.cc/X5VS-4Q29]; Shogunle v. Holder, 336 F. App’x 323, 324–325 (4th Cir. 2009).
[19].See 8 U.S.C. § 1229(a)(1)(F); 8 C.F.R. § 1003.15(d)(2) (noncitizen must provide updated address to “the Immigration Court where the charging document has been filed”) (emphasis added); Fuentes-Pena, 917 F.3d at 831 (noncitizen satisfied her duties pursuant to 1229(a)(1)(F) by “notifying ICE of her change of address before it filed the NTA with the immigration court”); Shogunle, 336 F. App’x at 324–325 (same); Qumsieh v. Ashcroft, 134 F. App’x 48, 51 (6th Cir. 2005) (same).
[20].See infra Part III.B.
[21].See 8 C.F.R. § 1003.15(d)(2); Fuentes-Pena, 917 F.3d at 831.
[22].See Appendix C. infra Declaration of Michelle Méndez ¶ 20; Appendix D. infra Declaration of Shannon McKinnon¶ 9; see also infra Part III.B.
[23].See Amicus Brief, supra note 7 (documenting the facts of this case). “Maria” is a pseudonym for the lead appellant in that case. Copies of the brief are available upon request .
[24].See 8 U.S.C. § 1229(a)(1)(G)(i); Qumsieh, 134 F. App’x at 51. We do not know the exact contents of pages 1 and 3 of the original NTA provided to Maria on January 29, 2017 because the government only produced page 2 from the original document, which was signed by an officer with a different name than the one who signed pages 1 and 3. To create the modified NTA, Officer Smith in New York typed an altered version of page 1, inserted page 2 from the original NTA prepared by a different ICE officer in Texas on January 29, 2017, and then typed an altered, replacement page 3. It is not plausible that Officer Smith could have actually prepared the first page of the NTA on January 29, 2017. Officer Smith worked in New York, New York. It is unlikely that he traveled to Texas in January 2017 just to type a notice. The only plausible explanation is that Officer Smith created new pages 1 and 3 on October 2, 2018—the date that he himself typed on page 3—in New York just before ICE filed the NTA on October 5, 2018.
[25].Officer Smith made several typos on Maria’s NTA as well, including transposing the last two digits of the correct zip code. He also erroneously included two entries taken from Maria’s second, immediately prior address. This shows that ICE had records of that intermediate address as well, proving that Maria had provided ICE with her updated address as required by the INA.
[26].See 8 U.S.C. §§ 1229(c), 1229a(b)(5)(A).
[27].138 S. Ct. 2105 (2018).
[28].See, e.g., infra Part III.A.
[29].See 8 U.S.C. § 1229a(b)(5)(C).
[30].33 Judges Brief, supra note 4, at 10 (emphasis in original).
[31].Id. at 3.
[32].See, e.g., infra Part III.A.
[33].See, e.g., infra Part III.A.
[34].See, e.g., infra Part III.A.
[35].33 Judges Brief, supra note 4, at 3. Since 2018, EOIR has required immigration judges to complete at least 700 cases per year. See EOIR Performance Plan, EOIR, https://www.justice.gov/eoir/page/file/1358951/download [https://perma.cc/Q4WT-MM5D].
[36].See U.S. Dep’t of Just., Exec. Off. for Immig. Rev. Adjudication Stat. (Jan. 19, 2022), https://www.justice.gov/eoir/page/file/1153866/download [https://perma.cc/6CCK-KX98] (comparing in absentia rates). One practitioner explained that the use of in absentia removal orders began in 2015 when, “in response to an influx of Central American families fleeing violence, the Obama Administration ordered immigration judges to rapidly adjudicate these cases.” Appendix C. infra Declaration of Michelle Méndez ¶ 11.
[37].INGRID EAGLY & STEVEN SHAFER, AM. IMMIGR. COUNCIL, MEASURING IN ABSENTIA REMOVAL IN IMMIGRATION COURT 7–9 (2021).
[38].Id. at 10.
[39].See Appendix A. infra Declaration of Anne Pilsbury ¶ 9.
[40].Appendix G. infra Declaration of Tracy J. Lawson ¶ 19; see also Appendix C. infra Declaration of Michelle Méndez ¶ 19; Appendix F. infra Declaration of Rebecca Press ¶ 4; Appendix D. infra Declaration of Shannon McKinnon ¶¶ 5, 11.
[41].Niz-Chavez v. Garland, 141 S. Ct. 1474, 1479 (2021).
[42].See Appendix A. infra Declaration of Anne Pilsbury ¶ 11.
[43].Pereira v. Sessions, 138 S.Ct. 2105 (2018).
[44].Id. at 2111 (2018). The notices stated instead that “the times, places, or dates of the initial hearings are ‘to be determined.’” Id.
[45].See Niz-Chavez, 141 S. Ct. at 1479.
[46].Pereira, 138 S. Ct. at 2107.
[47].Id. at 2112.
[48].Id. at 2108. Section 1229(a)’s definition of a “notice to appear” is the same for addressing a question of the stop-time rule as it is for at for in absentia removal orders. See also Singh v. Garland, 24 F.4th 1315 (9th Cir. 2022), reh’g en banc denied, 51 F.4th 371 (9th Cir. 2022); Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021), reh’g en banc denied, 31 F. 4th 935 (5th Cir. 2022).
[49].Pereira, 138 S. Ct. at 2112.
[50].Niz-Chavez, 141 S. Ct. at 1479; see also Pereira, 138 S. Ct. 2105 (holding that to trigger the stop-time rule, the government must serve an NTA that, at the very least, specifies the “time and place” of the removal hearing).
[51].Niz-Chavez, 141 S. Ct. at 1479.
[52].Id.
[53].Id. at 1479. The ruling related to a “stop-time rule” affecting noncitizens continuously present in the United States for ten years. Id. at 1479–84.
[54].Appendix B. infra Declaration of Jennifer A. Williams ¶ 7.
[55].Appendix C. infra Declaration of Stephanie E. Gibbs ¶ 6.
[56].Appendix C. infra Declaration of Michelle Méndez ¶ 20; Appendix D. infra Declaration of Shannon McKinnon ¶ 9.
[57].See Memorandum From Douglas R. Hibbard, U.S. Dep’t of Just., FOIA Public Liaison, to Matthew Hoppock Providing EOIR Emails Containing the Term “Dummy Date” or “Dummy Dates” (May 13, 2019), https://cdn.muckrock.com/foia_files/2019 /05/03/05._Final_Response_5.3.19.pdf [https://perma.cc/4UHG-G9JV] [hereinafter FOIA Request] (“It seems that fairly recently DHS was directed to include a court date in the NTAs.”).
[58].Appendix G. infra Declaration of Tracy J. Lawson ¶ 11.
[59].Gal Tziperman Lotan, Immigrants Arrive in Droves at Orlando Court—Only to Find Hearing Dates Were ‘Fake,’ Lawyers Say, ORLANDO SENTINEL (Nov. 1, 2018, 6:00 AM), https://www.orlandosentinel.com/news/breaking-news/os-ne-orlando-immigration-court-fake-dates-periera-20181031-story.html [https://perma.cc/CZ5K-K3QD].
[60].33 Judges Brief, supra note 4, at 18. ICE’s “dummy” dates have repeatedly caused chaos at the immigration courts. See, e.g., Dianne Solis, ICE Is Ordering Immigrants to Appear in Court, But the Judges Aren’t Expecting Them, THE DALLAS MORNING NEWS (Sept. 16, 2018, 5:30 AM), https://www.dallasnews.com/news/immigration/2018/09/16/ice-is-ordering-immigrants-to-appear-in-court-but-the-judges-arent-expecting-them [https://perma.cc/49C3-Y393]; Lotan, supra note 59 (explaining that ICE is “randomly putting dates on [] notices to appear” causing people to “come to immigration courthouses for hearing that don’t exist”).
[61].See FOIA Request, supra note 57.
[62].Id.
[63].Monique Madan, Fake Court Dates Are Being Issued in Immigration Court, SEATTLE TIMES (Sept. 22, 2019, 7:35 PM), https://www.seattletimes.com/nation-world/fake-court-dates-are-being-issued-in-immigration-court-heres-why [https://perma.cc/ZJV3-H4F2] (“People have been ordered to appear on national holidays, on weekends and even at midnight–when we all know immigration court isn’t operating . . . .”).
[64].See, e.g., Appendix G. infra Declaration of Tracy J. Lawson ¶¶ 22–23 (cases of “Emily” and “Steven”).
[65].See supra Part II.
[66].Brief for Former BIA Chairman & Immigration Judge Paul Wickham Schmidt as Amicus Curiae in Support of Petitioner at 3, Pereira v. Sessions, 138 S. Ct. 2105 (2018) (No. 17–459) [hereinafter Schmidt Brief].
[67].33 Judges Brief, supra note 4, at 10.
[68].In re Morales Paz, A206–242–585, at *2 (BIA Dec. 29, 2020).
[69].See supra Part I.
[70].Id.
[71].In re Morales Paz, A206–242–585 (BIA Dec. 29, 2020).
[72].Id. at *2.
[73].Id.
[74].Id.
[75].Id. at *1.
[76].Id. at *2.
[77].EOIR/AILA Meeting, supra note 11 (emphasis added).
[78].141 S. Ct. 1474 (2021).
[79].33 Judges Brief, supra note 4, at 10.
[80].Schmidt Brief, supra note 66, at 3–4.
[81].33 Judges Brief, supra note 4, at 10; see also Appendix A. infra Declaration of Anne Pilsbury ¶ 9.
[82].Schmidt Brief, supra note 66, at 3–4.
[83].Appendix C. infra Declaration of Michelle Méndez ¶ 22.
[84].Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).
[85].Pereira v. Sessions, 138 S. Ct. 2105 (2018).
[86].Niz-Chavez, 141 S. Ct. at 1479.
[87].See Singh v. Garland, 24 F.4th 1315 (9th Cir. 2022), reh’g en banc denied, 51 F.4th 371 (9th Cir. 2022) (noncitizen’s in absentia removal order subject to rescission because an alleged NTA lacking the time and date was not statutorily compliant); Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021), reh’g en banc denied, 31 F. 4th 935 (5th Cir. 2022) (noncitizen’s in absentia removal order subject to rescission because Niz-Chavez made clear that subsequent notices could not cure statutory defects in an alleged NTA that lacked the time and date).
[88].See Automated Case Information, EXEC. OFF. IMMIGR. REV., https://acis.eoir.justice.gov/en [https://perma.cc/DP7X-UW7Q] (last visited Dec. 31, 2022); see also Appendix C. infra Declaration of Michelle Méndez ¶ 21 (describing how the EOIR Automated Case Information system dockets cases using noncitizens’ “alien” or “A” numbers); Appendix E. infra Declaration of Stephanie E. Gibbs ¶¶ 8–11 (same).
[89].The declarations included in this Appendix have been converted to publication format but have not been edited for substance. See Amicus Brief, supra note 7. The original documents are on file with the authors and can be provided upon request.
[90].Whether the government actually provides sufficient notice in NTAs has been the subject of recent litigation. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).
[91].ASYLUM SEEKER ADVOC. PROJECT, supra note 1.
[92].However, in some locations, such as 26 Federal Plaza in New York City and 28 Hopkins Plaza in Baltimore, Maryland, the ICE office may be in the same building as the immigration court, leading to further confusion as the noncitizen believes going to the ICE office is going to the immigration court.
[93].The lack of communication between ICE deportation officers and ICE office of chief counsel attorneys who serve as prosecutors in immigration court, is especially mystifying, given that they work for the same agency, making the ICE deportation officers technically the client agency of the ICE attorneys.
[94].See generally Automated Case Information, supra note 88.
[95].See, e.g., Pereira v. Sessions, 138 S. Ct. 2105 (2018); Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).
[96].We would file G-28s to enter our appearance with ICE and alert the ICE office that would be present at any possible in absentia hearing that there is alternative address information, and to be able to communicate with ICE on behalf of our clients.
[97].See 8 U.S.C. § 1229(a)(1).
[98].See, e.g., Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018).
[99].See 8 U.S.C. § 1229a(b)(5)(C).
[100].Client names throughout this declaration are anonymized.
