Nearly 600,000 migrants who crossed the U.S. border since March 2021 have been released into the U.S. without being charged or given a date to appear in court, according to data obtained by NBC News, and thousands have even been dropped from the program that was supposed to track them.
The practice, born of necessity as border-crossing numbers soared past previous records, was a break from the protocol of prior administrations, which required migrants to be given charging documents with a court date by Customs and Border Protection shortly after they were apprehended.
The lack of charging documents has left migrants across the country in legal limbo without a court date to determine whether they can legally stay in the U.S., their lawyers said. Many live in the shadows, unable to work and unaware that they are passing their one-year eligibility deadline to apply for asylum.
Immigration lawyers say many clients walk into their offices confused and wondering what the next step should be in the quest for legal residence.
“A lot of the people who are here, they really urgently want to seek asylum. They want their case heard as soon as possible. They don’t want to be in limbo,” said Karlyn Kurichety, legal director of Al Otro Lado, a migrant advocacy organization.
Much of the criticism of Biden’s border policies from both Republicans and Democrats has been focused on migrants as they cross the southern border, but less attention has been paid to how the administration is handling migrants after they cross, a window of time in which the court system is supposed to determine whether or not they can remain legally.
In late March 2021, as the numbers of undocumented migrants arriving at the southern border began to surge, CBP began releasing migrants with what is known as a “Notice to Report,” telling them to report to an Immigration and Customs Enforcement office, rather than a “Notice to Appear,” which instructs migrants when to appear in court to determine whether they will be deported or given protections to remain legally in the U.S.
But that process proved problematic, as reports emerged that many migrants were not showing up at ICE offices to receive court dates.
So ICE began a new program in July 2021, according to a Government Accountability Office report, known as Parole Plus Alternatives to Detention or Parole Plus ATD. The program allowed migrants to be released without charging documents while their whereabouts were tracked with ankle monitors, by checking in on an app or telephonically.
Between late March 2021 and late January 2023, more than 800,000 migrants were released on Notices to Report or Parole Plus ATD. About 214,000 of them were eventually issued charging documents with court dates, according to data obtained by NBC News, meaning that roughly 588,000 did not know when or where to report for their asylum hearings.
NBC News first reported that border agents in Rio Grande Valley were instructed to begin releasing migrants without court dates in March 2021, as border processing centers became overcrowded and unable to quickly process children arriving unaccompanied, the first major border challenge of the Biden presidency.
The doument instructing border agents to release migrants without charging documents said the move was “intended to mitigate operational challenges, including risks to national security, during significant surges of illegal migration as currently exist in the Rio Grande Valley.”
Since then, the practice has expanded to include the entire border. The Department of Homeland Security had maintained that migrants released without charging documents would soon be given court dates at ICE offices in the interior of the country. It was not previously known that nearly 600,000 newly arrived migrants still remain at large in the U.S. without a clear path toward immigration proceedings.
Jeremy McKinney, an immigration attorney and president of the American Immigration Lawyers Association, said he was in disbelief the first time a client walked into his office with a “Notice to Report” document rather than a “Notice to Appear” charging document.
“I couldn’t believe what I was seeing,” McKinney said. He soon learned that the new documents were not a silver lining for migrants wishing to avoid deportation.
“It just leads to more confusion amongst the population that are the ones fleeing persecution and torture,” McKinney said. “You’re putting them into this confusing spiral where they don’t actually have court for several years and they’re missing out on the opportunity to apply for asylum.”
McKinney also said it is hard for migrants who have not been formally entered into the court process to keep ICE apprised of their location if they change their address, making it harder to see through a case for asylum and harder for the government to keep tabs on migrants who cross.
In a statement, a DHS spokesman said, “If a Notice to Appear (NTA) is unavailable, insufficient, or in need of correction at the time of the immigration court hearing, it is a regular practice to correct the deficiency and resubmit, or issue a new NTA so that cases may resume and migrants can continue with their obligation to appear before an immigration court at a later date."
"DHS continues to safely, efficiently, and effectively process individuals encountered at the border."
99.4% show up for the first court date
Congress has only funded ICE for about half of the population currently on ATD, and two senior DHS officials said they will be forced to make cuts to the program.
The two officials told NBC News that ICE will remove migrants from ATD, due to the expense of the program, if it is determined the immigrant is from a country that is reluctant to take back the migrants. This is particularly true for the Cuban migrant population in Florida, the officials said.
Over a 10-day period in January, more than 25,000 migrants were removed from the ATD program, a 7% decline, according to data obtained by NBC News.
While some of those migrants could have been removed because they were deported or had completed their court hearings, the Justice Department’s immigration courts haven’t kept up with the caseload. Since October, only 2,300 migrants on ATD have had final court hearings scheduled.
Publicly reported data from ICE, however, shows that when migrants are enrolled in ATD and given court dates, they have a 99.4% rate of showing up to their first court hearing and a 95.7% rate of showing up to their final hearing.
The program is far less expensive than holding migrants in detention and costs the government less than $1 per day per migrant, according to public figures released by ICE. But as undocumented border crossings continue to rise, and likely increase still more when Covid border restrictions lift, the costs could be prohibitive. At current rates and population, it costs ICE roughly $100 million to operate the ATD program annually.
Kurichety said she is also seeing many migrants who are given what appear to be charging documents from Customs and Border Protection that do not actually correlate to real court dates. The migrants falsely believe their immigration proceedings have begun when in fact there is no record of their case.
Speaking of one of her clients, Kurichety said, “She would ask and the [ICE] officer would say, ‘Just wait for your court date, just wait for your court date.’ And because of that she missed her one-year filing deadline [for asylum].”