On August 22, 2024, the Executive Office for Immigration Review (EOIR) released a new policy clarifying when the Department of Homeland Security (DHS) must file a Notice to Appear (NTA). According to this policy, if DHS doesn’t file the NTA within 120 days after the first master calendar hearing, EOIR will consider the case a “failure to prosecute” (FTP). EOIR uses its Interactive Scheduling System (ISS) to track these deadlines.

The NTA policy applies to non-detained cases that DHS schedules 30 days after the memo’s date. The new rules replace the old policy that allowed DHS to file NTAs up until the day of the hearing. In the last four years, delays in filing NTAs have led to over 200,000 cases being dismissed.

The policy further requires that NTAs issued before August 22, 2024, for hearings scheduled through December 31, 2025, must be filed by March 31, 2025. For hearings on or after January 1, 2026, NTAs must be filed by June 30, 2025. If NTAs are not filed on time, EOIR will treat the case as a failure to prosecute. The “day 1” for counting the 120-day period is the scheduling date.

If EOIR doesn’t know if 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 misses their court date, and other cases get delayed.

Since 2018, when DHS gained direct access to EOIR’s scheduling system, the number of cases has increased significantly, with DHS now filing over 100,000 cases each month. The memo also notes that EOIR cannot process other important documents, like requests to change court locations or stop deportations, until an NTA is filed. If an NTA is rejected, such as for being scheduled on a weekend or holiday, it must meet the new deadlines when refiled.

If you have questions about a notice to appear or any other U.S. immigration-related issue, contact us. Our team of experienced attorneys work directly with our clients every step of the way.