The Biden administration recently expressed concerns to the Supreme Court justices about the potential impact of a ruling against them in a key immigration case.
The case in question involves Notices to Appear (NTA) given to illegal immigrants, which sometimes lack a specific court date and instead state “TBD.” A separate court date is later mailed to the immigrant. If the immigrant fails to appear for the hearing, they can be ordered deported “in absentia.”
The case initially focused on a Salvadoran illegal immigrant who received an NTA in 2005 and was later mailed a court date, which he claims he did not receive. Two other illegal immigrants with similar situations have joined the case. The lawyers for these immigrants argue that the two separate mailings do not constitute proper notice as required by statute. Government lawyers, however, contend that such practices do count as proper notice.
Charles McCloud, representing the government, warned that if the court ruled against them, hundreds of thousands of people who received TBDs on their NTAs could seek a review of their cases.
“We are very concerned that those hundreds of thousands of cases could be injected back into the immigration system,” McCloud told the justices. “So… that already substantial increase we have seen is going to turn into an avalanche.”
“And that disadvantages other non-citizens who did follow the rules, who complied and went to their removal proceedings, because those non-citizens could be removed at the end of their proceedings, but someone… who just decides ‘I don’t want to show up’ has this in absentia order, but it could always be rescinded under the Ninth Circuit’s rule,” he added.
Easha Anand, the lawyer representing the illegal immigrants, countered that the consequences would be a “function of the government ignoring the text of the statute over many cases and many years.” Anand also noted that while there would be an increase in the number of such motions, the impact would be limited as the result would only be another hearing.
The case is part of a series of immigration and border security cases the court has faced in recent years and will continue to face in 2024. These include a dispute between Texas and the government over Texas’ construction of razor wire at the border and the government’s lawsuit against Texas over its new anti-illegal immigration law.
The U.S. is currently grappling with a massive immigration backlog, which has grown significantly amid the recent migrant crisis. The immigration court backlog now exceeds three million, and the number of illegal immigrants on the non-detained docket is over six million. In December alone, there were 302,000 migrant encounters. DHS Secretary Alejandro Mayorkas has reportedly told Border Patrol agents that the rate of migrant releases into the interior is “above 85%.”
“We are doing everything we can, within a broken system, to incentivize noncitizens to use lawful pathways, to impose consequences on those who do not, and to reduce irregular migration,” Mayorkas said.
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