The Executive Office for Immigration Review (EOIR) issued a policy memorandum on August 22, 2024, clarifying required timing to file a notice to appear (NTA). EOIR stated they will classify a case as “failure to prosecute” (FTP) if the Department of Homeland Security (DHS) does not issue the NTA within 120 calendar days after the initial master calendar hearing is issued. The EOIR’s Interactive Scheduling System (ISS) is used to determine the required filing deadline.

The NTA requirement applies to non-detained cases issued and scheduled by DHS starting 30 days after date of the memo. The updated policy rescinds the current DHS policy that allows DHS to file NTAs up to the time of the hearing. In the memo, agencies within DHS are noted for significant increases in the number of hearing slots being lost due to unfiled or late filed NTAs. As such, immigration judges dismissed over 200,000 removal cases in the last four years, through February 2024.

The memo further requires that NTAs issued prior to August 22, 2024, for hearings scheduled through December 31, 2025, must be filed by end of business on March 31, 2025. For hearings schedule on or after January 1, 2026, NTAs must be filed by June 30, 2025. If NTAs are not filed within the required dates, EOIR will consider the case as a failure to prosecute. The scheduling date is considered the “day 1” to calculate the 120-day period.

If the EOIR doesn’t know ahead of time whether DHS will file an NTA, they can’t fill the hearing slot with another case. If DHS doesn’t file the NTA by the hearing date, the noncitizen loses their chance to go to court that day. Further, the empty slot means other cases that could have been heard are delayed.

Since 2018, when DHS got direct access to EOIR’s scheduling system, the number of cases has increased, with DHS now filing over 100,000 cases each month. The memo points out that until an NTA is filed, EOIR can’t accept other important documents, like requests to change the court location or applications to stop a deportation. If an NTA is rejected, like one that schedules a hearing on a weekend or holiday when the court is closed, the re-filed NTA will have to follow the memo’s deadlines.

If you have questions about a notice to appear or any other U.S. immigration related issue, contact us at ILBSG. Our team of experienced attorneys work directly with our clients to ensure they get the right advice for their particular situation.

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