New Report Calls for Improvements to DHS Notice to Appear Procedure

The Notice to Appear is the charging document used by the Department of Homeland Security (DHS) to identify people who are inside the United States and potentially in violation of the immigration laws. “To File or Not to File a Notice to Appear: Improving the Government’s Use of Prosecutorial Discretion” outlines several problems with the current NTA issuance and filing process, such as:

1. a lack of information pertaining to NTAs and lack of transparency about the NTA process;
2. inconsistency and insufficiency of implementation of DHS policies regarding prosecutorial discretion on the ground; and
3. lack of attorney review of NTAs.

“An agency decision to refrain from issuing or filing an NTA is one of the most important forms of prosecutorial discretion, and until this report was largely unexamined,” said Professor Shoba Sivaprasad Wadhia, director of the Center for Immigrants Rights and Samuel Weiss Faculty Scholar and professor of clinical law at Penn State.

Despite various agency memoranda having stressed the importance of considering positive factors before exercising the full scope of enforcement against a noncitizen, the current anecdotal and statistical data suggest that DHS officers do not always implement these factors in a meaningful way. The cases described in response to the Center’s survey present anecdotal evidence that DHS does not always exercise favorable prosecutorial discretion even in cases that appear to fit DHS’s criteria for such treatment.

“Working on the NTA report was not easy yet fascinating,” said Yesoo Kim '12, who worked on the report as a student at Penn State Law. “Because there was no database kept by DHS that is readily available to the public, we had to file a FOIA request to all three DHS subcomponents and contact attorneys, advocates and scholars through surveys, emails, and phone to gather information on how and/or whether DHS is exercising prosecutorial discretion in issuing/filing NTAs.”

The report encourages DHS to:

• Establish a permanent program requiring approval of a DHS lawyer prior to the filing of any NTA by a DHS officer.
• Stop issuing and filing NTAs against noncitizens who are prima facie eligible for an immigration benefit before USCIS, Lawful Permanent Residents who are eligible for relief from removal, and migrants who do not fall clearly into one of DHS’s highest priority categories (terrorism, national security, serious crimes).
• Amend the NTA form to require new “fields” addressing specific information pertaining to issuance, cancelation, and filing of NTAs and upgrade DHS’s data systems for better tracking of NTAs.

The report was prepared for by the Center for Immigrants' Rights for the ABA Commission on Immigration. “We are very pleased to have worked closely with Penn State Law on this report, which we believe strengthens the work of the ABA Commission on Immigration to ensure due process and fair treatment for immigrants in the United States,” said Christina Fiflis, Chair of the ABA Commission on Immigration." - Shoba Sivaprasad Wadhia, Oct. 22, 2013.

Download the Report