Blackburn, Hagerty, Colleagues Demand Answers On Widespread Failure To File “Notice to Appear” Documents For Illegal Immigrants

December 8, 2022

WASHINGTON, D.C. – U.S. Senators Marsha Blackburn (R-Tenn.) and Bill Hagerty (R-Tenn.), along with Senators Bill Cassidy (R-La.), Ted Cruz (R-Texas), Mike Rounds (R-S.D.), Cindy Hyde-Smith (R-Miss.), and Ron Johnson (R-Wisc.) sent a letter to Secretary of Homeland Security Alejandro Mayorkas seeking an explanation as to why the Department of Homeland Security (DHS) has failed to properly file tens of thousands of “Notice to Appear” (NTA) documents in advance of scheduled court hearings for illegal immigrants, which led to the termination of immigration enforcement proceedings in those cases.


Removal proceedings against illegal aliens usually involve two steps. First, DHS serves the alien with an NTA alleging the alien’s removability from the United States and scheduling a court date and location for the alien to appear for an immigration court hearing. Second, DHS files that NTA with the immigration court that will oversee the hearing.


Importantly, even if a hearing is scheduled, jurisdiction with the court does not vest until the NTA is filed with the court—meaning that if an NTA is not filed, the immigration court is forced to dismiss the case against the alien, as a result of which the alien remains in the United States illegally with no immigration proceeding pending. Little information has been provided regarding why this mistake is occurring and how DHS will remedy it,” the Senators wrote. 


The Senators noted that since Secretary Mayorkas took office, the number of cases dismissed due to an NTA not being filed has soared: “The percentage of cases dismissed for failure to file an NTA in FY 2021 was more than 10 percent, and the most recent data for FY 2022 indicates that more than 16 percent of all cases—63,586 cases, to be precise—were dismissed as a direct result of DHS’s failure to file an NTA.”


What caused this substantial spike in incidences of DHS officials not filing an NTA after you took office and, consequently, tens of thousands of immigration cases against illegal aliens being dismissed because of DHS’s failure to file paperwork?  We urge you to immediately review DHS policies and practices relating to the issuance and filing of NTAs,” the Senators continued.


The Senators requested a written response to the following questions by December 23, 2022:


  1. Please explain which DHS component or type of employee is responsible for filing NTAs.
  2. Have there been any directives or memoranda to DHS employees regarding NTAs during the course of the Biden Administration?  If so, please provide a copy of any such directives or memoranda.
  3. Have there been any organizational changes within DHS that impact the filing of NTAs with immigration courts?  If so, please describe any such change and why it was made.
  4. Please explain why 16 percent of all FY 2022 immigration cases (totaling 63,586 cases) were dismissed for DHS’s failure to file an NTA and the status of those illegal aliens.
  5. What is DHS doing to prevent additional immigration cases from being dismissed for failure to file an NTA?
  6. Has DHS sought to reschedule the 63,586 cases that have been dismissed during FY2022 for failure to file an NTA?
  7. Can DHS account for the whereabouts of illegal aliens whose cases were dismissed for DHS’s failure to file an NTA?
  8. What is the estimated cost to taxpayers of wasted immigration court time, rescheduling 63,586 cases that have been dismissed during FY 2022, and other expenses associated with those individuals whose cases were dismissed for DHS’s failure to file an NTA?
  9. Please provide the number of NTAs not filed, by month, dating back to January 2021, and broken down by DHS component and specific unit.


Read full the letter here.