The Government Accountability Office (GAO) has determined that the Department of Homeland Security (DHS) needs to improve its case tracking after a review found the department could not account for the status of immigration hearings.
Individuals apprehended by DHS and placed into expedited removal proceedings are to be removed from the U.S. without a hearing in immigration court unless they indicate a fear of persecution or torture, a fear of return to their country, or express an intent to apply for asylum. In recent years, there has been an increase in apprehensions of those who indicate such fears, driven by unrest and instability in their home countries.
Asylum officers conduct “fear screenings,” and immigration judges at the Executive Office for Immigration Review (EOIR) may review negative U.S. Citizenship and Immigration Services (USCIS) determinations. In October 2019, DHS and the Department of Justice (DOJ) initiated two pilot programs to further expedite fear screenings for certain apprehended noncitizens.
GAO found that from October 2019 to March 2020, DHS, in coordination with EOIR at DOJ, implemented expedited fear screening pilot programs and sought to complete the process for certain individuals within five-seven days of their apprehension under the Prompt Asylum Claim Review (for non-Mexican nationals) and Humanitarian Asylum Review Process (for Mexican nationals). To help expedite the process, these individuals remained in U.S. Customs and Border Protection (CBP) custody during the pendency of their screenings rather than being transferred to U.S. Immigration and Customs Enforcement (ICE). From October through December 2019, DHS implemented the programs in the El Paso, Texas, sector and expanded them to nearly all other southwest border sectors before pausing them in March 2020 due to COVID-19.
The watchdog’s January 25 report notes that CBP identified approximately 5,290 individuals who were eligible for screening under the pilot programs. About 20 percent of individuals were in CBP custody for seven or fewer days; CBP held about 86 percent of individuals for 20 or fewer days. Various factors affect time in CBP custody such as ICE’s ability to coordinate removal flights.
USCIS data indicate that the majority of individuals (about 3,620) received negative fear determinations from asylum officers. About 1,220 individuals received positive credible fear determinations placing them into full removal proceedings where they may apply for various forms of protection such as asylum.
However, as of October 2020, DHS and EOIR could not account for the status of such proceedings for about 630 of these individuals because EOIR’s data system does not indicate that a Notice to Appear—a document indicating someone was placed into full removal proceedings before an immigration judge—has been filed and entered into the system, as required. GAO ultimately found that DHS and EOIR officials could not determine whether DHS components had filed the notices for these cases with EOIR, nor could they determine if EOIR staff had received but not yet entered some notices into EOIR’s data system, per EOIR policy.
DHS components could not provide a definitive explanation to GAO’s review team for why these Notices to Appear may not have been filed with EOIR. According to ICE officials, under the expedited programs, ICE’s Office of the Principal Legal Advisor was responsible for filing the Notices to Appear in such cases with EOIR immigration courts. USCIS officials told GAO that the responsibility for filing the Notices to Appear with the immigration courts for those who received positive determinations varied among DHS components depending on the screening location. For example, USCIS officials told us that, in El Paso, asylum officers were to e-mail the Notices to Appear to the Otero immigration court, and CBP or ICE was responsible for filing it with EOIR in the other hub locations. CBP officials stated that once they transfer an individual to ICE custody, they are no longer involved with further immigration proceedings and that ICE and USCIS were responsible for filing the Notices to Appear with EOIR immigration courts under the expedited screening programs. GAO’s analysis of EOIR data indicates that for at least 50 of the Notices to Appear that had been filed, there was a five to nine-month delay between the date the Notice to Appear was served to the individual and the date that DHS filed the Notice to Appear with EOIR.
EOIR officials told GAO that the agency was taking steps to implement electronic filing of Notices to Appear, which they anticipated would ensure the timely and accurate recording of Notices to Appear. A policy memorandum issued in January 2020 stated that removal cases for detained individuals should be entered into the case management system within three days of the filing of the Notice to Appear.
The officials also said there was not a backlog of notices waiting to be filed as of October 2020. However, GAO said that at that time and for at least 30 records there were delays of at least 21 days and up to six months between the dates DHS filed the Notices to Appear and the dates on which court staff entered them into EOIR’s case management system.
GAO’s report makes one recommendation to DHS and one to DOJ. DHS concurred that it should ensure that components have filed Notices to Appear with EOIR for all individuals who received positive determinations under the expedited fear screening programs. DHS stated that it should complete work to ensure this recommendation is met by the end of March 2021.
DOJ did not agree with the recommendation that EOIR should ensure immigration court staff have entered into EOIR’s case management system all Notices to Appear received from DHS, in a timely manner, as required, for individuals who received positive determinations under the expedited fear screening programs. While EOIR stated that it agreed with GAO’s recommendation in principle, it believes its present operational processes already incorporate its intent. EOIR officials also said they believe that the approximately 630 records identified in the review are ones that have not been filed by DHS with an immigration court, rather than ones that have not been entered into EOIR’s system. EOIR has not provided documentation to support this claim.
The new Biden administration has already begun an overhaul of immigration policy and procedures, and faces a backlog of cases. It is not clear at this stage how fear screening case management will feature in the new plans, but GAO’s advice can only improve the process.