To file or not to file Vargas’s Notice to Appear

All eyes have been on the most famous undocumented person in America: journalist and activist Jose Antonio Vargas. According to media accounts, Vargas was taken into custody Tuesday at McAllen-Miller International Airport and released with a Notice to Appear.  The Notice to Appear or NTA, may sound like just another form being pushed in the immigration process, but it is no ordinary piece of paper. The NTA is a document that lists immigration charges by Department of Homeland Security or DHS against a person, information about a person’s hearing date before an immigration judge and notice about the person’s right to an attorney, among other details.

This question of whether or not to issue or file an NTA appears ministerial but it is a significant decision that hinges both on legal sufficiency (i.e., an NTA is unsigned or contains the wrong name) and prosecutorial discretion (i.e., Pulitzer Prize winning journalists are not an enforcement priority for the immigration agency).  The most famous memo (coined the “Morton Memo”) on prosecutorial discretion explicitly identifies the decision to “issue, reissue, serve, file or cancel a Notice to Appear” as forms of prosecutorial discretion.  Once the NTA has been filed with the immigration court, DHS retains less authority to throw out the NTA but can influence an immigration judge to do the same by moving to “administrative close” or “terminate” removal court proceedings as a matter of prosecutorial discretion.     

Thousands of NTAs are issued every year by DHS but the immigration judge comes into the picture only after the NTA is filed with the immigration court, a unit within the Department of Justice’s Executive Office for Immigration Review. Filing an NTA with the immigration court ignites a court hearing or “removal proceeding,” itself a dying forum that over the years has been replaced with speed deportation programs like “reinstatement” and “expedited removal.” Filing an NTA may be beneficial to those who are eligible for relief before an immigration judge or those who are susceptible to speed deportation and who otherwise would be denied a day in immigration court. 

Circling back to Vargas, DHS could exercise prosecutorial discretion favorably by choosing not to file his NTA with the immigration court or if already filed, moving to terminate his case (if he does not qualify for relief in immigration court).  Vargas still faces immigration purgatory even with a grant of prosecutorial discretion, but he is protected from removal and saves the already overstretched immigration courts the costs of another hearing.  Finally, there is plenty of talk about Vargas’s ineligibility for Deferred Action for Childhood Arrivals or DACA because he does not meet the program’s age requirements.  Beyond DACA however, DHS has the authority to grant Vargas general deferred action (another form of prosecutorial discretion), a program that enjoys a rich history and similar rewards.

For more information on Notices to Appear :

To File or Not to File a Notice to Appear: Improving the Government’s Use of Prosecutorial Discretion: http://law.psu.edu/sites/default/files/documents/pdfs/NTAReportFinal.pdf

Practice Advisory: Notices to Appear: Legal Challenges and Strategies: http://www.legalactioncenter.org/sites/default/files/notices_to_appear_fin_6-30-14.pdf

Wadhia is the Samuel Weiss Faculty Scholar, law professor, and director of the Center for Immigrants’ Rights at Penn State Law and author of “Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases” (New York University Press, forthcoming 2015).