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The notices to appear in court arrive at immigration lawyer Liza Garcia’s office at Catholic Charities almost every month. She searches for each name in the organization’s records, but usually confirms what she already suspects: The person is not her client.
So, she reports these notices to the relevant immigration authorities and hopes the person knows how to call or check online for their court date. Otherwise, they could be deported in absentia.
“It's difficult when you're on our side of it, and there are folks that we really want to help that we cannot reach out to directly because we don't have their phone numbers,” said Garcia, managing attorney at Catholic Charities’ St. Frances Cabrini Center for Legal Assistance
As authorities processed record crossings at the border in December and the immigration court backlog has reached an all-time high, a missed notice to appear is a small error within an increasingly winding immigration system that can have serious consequences on immigrants’ cases, which become harder to win if issued an order of removal for failing to appear.
When immigrants are processed at the border and released with a pending case, their Customs and Border Protection paperwork should reflect an address where they can be reached. But some immigrants don’t know their final destination, causing a dilemma when it’s time to fill out the form. The agency writes the address provided by the migrant, which can be a nongovernmental organization if they don’t have a sponsor in the U.S. In some cases, officials just write a city and state, and provide instructions to migrants on how to update the address.
Houston’s St. Frances Cabrini Center for Legal Assistance is the latest of many organizations nationwide reporting since at least 2019 that it has received notices to appear for immigrants who have never passed through their office.
“It's tragic because it's going to be a lot more work for them when they find out they have a deportation order, and then they have to reopen it,” Garcia said.
Just how many immigrants have been affected by erroneous addresses is hard to determine, but it has been documented since at least 2019 in cities such as Sacramento, New York and Houston. Catholic Charities, a nationwide nonprofit that provides food, shelter, and legal aid to vulnerable populations, began receiving notices at their Houston office around July 2021 and has continued to receive them until late last year.
“We really don't know what the scope of it is until we see the fallout because this is something that could be five, 10 years down the road and still dealing with repercussions of an erroneous address on a notice to appear,” said Amy Grenier, policy and practice counsel at the American Immigration Lawyers Association.
The known cases so far are already stressing a strained system and drawing out immigrants’ cases in a long backlog.
“It means that someone could face a much longer, more complicated and more expensive immigration journey trying to undo the tangle that is caused by a wrong address,” said Grenier.
Missed court date
Immigration hardliners have long claimed that immigrants take advantage of the court system and most don’t show up at their court hearings. But a 2021 study by the nonprofit American Immigration Council found that 83 percent of non-detained immigrants attended all their hearings.
Of those ordered deported in absentia, 15 percent were able to successfully argue to have the removal order overturned, according to the report. But reopening a case is more difficult than arguing a case without a removal order, and it usually requires a lawyer who can make a compelling argument, explained Grenier. About 85 percent of people ordered deported in absentia don’t have legal representation, making it nearly impossible for them to reopen their case.
“Because you have an in-absentia order, you could be potentially removed before you even have the chance to make that case,” Grenier said.
Houston-based immigration lawyer Gordon Quan has been working on a case of a couple from China who originally opened an asylum case in Houston. They later moved to Tennessee and hired a lawyer to take over the case. But even with a lawyer checking online for their court date and updating their address, the notice to appear was lost somewhere in the immigration bureaucracy. They missed their Houston court date and were ordered deported in absentia.
Trying to reopen the case has proved to be a bureaucratic nightmare.
“Sometimes it seems like they're so involved in bureaucracy that it's like you didn't see the forest through the trees,” Quan said. “The bottom line is they want to have a hearing, they missed a hearing, and their lawyer tried to straighten things out.”
In another case, a Venezuelan man who crossed the border in fall 2022 had his notice to appear sent to a homeless shelter in New York, although he did not plan on living there, said Jiyoon Kim, an immigration attorney for Make the Road New York, a community organization that provides legal services.
He was ordered deported in absentia. Kim then filed to reopen, because she said her client did not consent to having the shelter listed as his address and had no way of receiving the notice. A judge denied the petition.
“Most judges have been receptive to the challenges and exceptional circumstances that people face, but it's really not consistent,” Kim said. “We're seeing that many judges are completely unresponsive to these common-sense arguments.”
She’s appealing the decision, but the long process and legal limbo has already been stressful for her client, who is unable to get a work permit and was separated from his wife and child when they crossed the border.
Fixing the problem
Immigration nonprofits and law associations have been pushing immigration authorities to streamline the process of changing an address and to implement a clearer process for reopening cases of deportations in absentia because of an error.
In September 2022, AILA sent a letter to the Department of Homeland Security asking the agency to address this practice and listing steps agencies can take to fix this, such as creating an online system for immigrants to change their address more easily.
In April 2023, Immigration and Customs Enforcement announced an online change of address form, and it became fully operational in June. This has helped people who have changed addresses since then, but still does not fully address the issue for people already ordered deported in absentia
Garcia of Catholic Charities said that the organization has reached out to authorities to find a solution.
“It is something that we are trying to address with CBP leaders and they're just as surprised as we are and they're working on it,” Garcia said.
Quan also said he has been in touch with ICE’s chief legal officer in Houston, whose regular meetings with lawyers have improved communication with the agency.
Still, Grenier said there needs to be more guidance from national authorities on how to move forward with these cases.
“If we know that this is a case of having an erroneous address, a national policy would be very helpful and you'd have less inconsistencies depending on the court on how these cases are handled,” Grenier said.
If you have a pending case in immigration court, you can confirm your court date by calling or checking online. If you need to update your address, follow the instructions through this link.
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