The Biden administration is facing a major immigration issue as they warned the Supreme Court on Monday that hundreds of thousands of deportation cases could be reset and sent back into the immigration system.
The case in question revolves around the use of Notices to Appear (NTA) – orders given to illegal immigrants before they are released into the interior to appear before an immigration court. The issue at hand arises when the NTA does not include a court date and only states “TBD.” A separate court date is later mailed to the illegal immigrant, leading to potential confusion and missed court appearances.
During oral arguments for the case, government lawyers argued that sending a TBD notice along with a court date is proper notice as required by statute. However, lawyers representing the illegal immigrants argued against this, claiming that it does not count as proper notice and further, if the government loses the case, it could result in hundreds of thousands of illegal immigrants seeking a review of their cases. According to Charles McCloud, representing the government, the number of in absentia orders of removal has dramatically increased in recent years, from 380 in 2021 to over 11,000 in 2023.
The potential consequences of a loss for the government would be significant, as McCloud warned that hundreds of thousands of cases could be “injected back into the immigration system.” This would also negatively impact those illegal immigrants who did show up for their hearings, as they could potentially be removed at the end of their proceedings, while those who did not show up could have their orders rescinded.
The lawyer representing the illegal immigrants argued against this, stating that any increase in the number of cases would be due to the government ignoring the text of the statute for many years. They also stated that the impact would be limited, as the result would only be another hearing for many immigrants who have no pathway to staying in the U.S.
This case is the latest in a string of immigration-related cases to reach the Supreme Court, which has been grappling with issues surrounding illegal immigration and border security in recent years. The court will also hear a dispute between Texas and the government over the state’s construction of razor wire at the border, and whether federal officials can cut it. Additionally, the government has sued Texas over its new anti-illegal immigration law, which allows state and local law enforcement to arrest illegal immigrants.
The ongoing border crisis has further exacerbated the already massive immigration backlog in the U.S. The backlog currently stands at over 3 million cases, and the number of illegal immigrants on the non-detained docket is now over 6 million. Meanwhile, the number of migrant encounters in December alone was 302,000, leading to a strain on resources and an overwhelming amount of cases to be processed.
DHS Secretary Alejandro Mayorkas has acknowledged the challenges faced by the government in managing the current immigration situation. In Texas, he told Border Patrol agents that the current rate of migrant releases into the interior is “above 85%.” However, DHS officials have stated that they have removed more migrants since May than in all of FY 2019. Mayorkas emphasized the importance of using lawful pathways for immigration and imposing consequences on those who do not, while also working towards reducing irregular migration.
The Supreme Court’s decision in this case could have far-reaching implications for the immigration system and the current backlog of cases. It remains to be seen how the court will rule and what the potential impact will be on the immigration system as a whole.
The Biden administration will continue to face challenges in managing the ongoing border crisis and addressing the backlog of cases, as the issue of illegal immigration remains a contentious and complex one.