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A monthslong program in 2021 instructed migrants arriving at the border to report to a U.S. Immigration and Customs Enforcement office to receive their official charging documents.
It can take years before an immigrant can present a case before an immigration judge. But PolitiFact couldn’t verify just how backed up appointments are at New York City’s ICE office, where migrants can receive their charging documents.
News reports have documented the long lines that form outside the New York office, and how migrants are being turned back because the agency lacks the capacity to meet with them.
Rep. Henry Cuellar, D-Texas, whose district borders northeast Mexico, said there need to be consequences at the border so that people stop trying to cross illegally.
In a May 7 Fox News interview that discussed the expiration of Title 42, the public health policy that effectively prevented people from applying for asylum at the border, Cuellar argued that some U.S. processes incentivize illegal immigration.
He said people who cannot legally stay in the U.S. "have to be returned quickly," otherwise "people are going to see the border as a speed bump," and continue coming to the U.S., he said.
He homed in on the appointment backlog at New York City’s U.S. Immigration and Customs Enforcement office.
"When they give those notice to report, that is to ICE, not before an immigration court," Cuellar said. "In New York City, it’s going to be till 2033; 2033, that’s 10 years before they even go to a judge."
There is a massive immigration backlog — more than 2 million applications still have not been received a final decision by a judge. But Cuellar’s office provided no information to back his claim that some migrants won’t be able to start their cases till 2033.
March reporting from the New York Post supports his claim, but the outlet cited as its source a "non-public official document." U.S. Immigration and Customs Enforcement did not respond to PolitiFact’s request for information.
PolitiFact also asked the House and Senate homeland security committees for related information and did not hear back.
Because PolitiFact cannot independently verify this claim, we are not rating it on the Truth-O-Meter. But here’s what we know.
Immigrants who cross the border illegally and are found to have a credible fear of returning to their home countries are detained or released into the U.S. to wait for their day in court, where they can make their case for asylum.
Because there isn’t enough detention space, many immigrants are released into the U.S. and given a "notice to appear" — a charging document that officially begins their removal proceedings. (People apply for asylum as a defense against deportation.)
Starting in March 2021, asylum-seeking families received a different document called "notice to report." Unlike a notice to appear, this document didn’t kick-start their court proceedings; instead, it instructed migrants to report to any ICE office within 60 days. Then they would receive their official charging documents.
The Biden administration implemented this as a way to free Border Patrol from administrative tasks. However, the program ended in November 2021 because immigration officials worried people were not reporting to ICE offices as instructed, according to a report from the U.S. Government Accountability Office.
Today most migrants get their charging documents at the border.
During an April 18 House appropriations committee hearing with ICE Acting Director Tae Johnson, Cuellar said that as of April 7, New York led the list of the "top 10 backlogged locations" and that it was "mostly booked through March of 2033."
Johnson didn’t rebut that claim. He said ICE was working on technological advances to free appointment backlogs so people do "not have to wait 10 years to have their charging documents issued."
That means, according to Cuellar, migrants trying to schedule appointments to receive their official charging documents in New York City, would be unable to get an appointment until March 2033.
Rebekah Wolf, a policy counsel at the American Immigration Council, a nonprofit and advocacy group, said she couldn’t verify the figure, but added that such a number didn’t surprise her. Her organization cited that figure in a May report, attributing the information to the New York Post.
"They have a limited number of people that they can process in a day," Wolf said of immigration officials. "New York City is absolutely the most backed up."
But, she said, that’s "not necessarily indicative of how this operates in all cities."
Fox News, 'Fox News Sunday' on May 7, 2023, May 7, 2023
PolitiFact, Title 42 expiration: What's next for migrants applying for asylum at US’ southern border?, May 8, 2023
Transactional Records Access Clearinghouse, Immigration Court Backlog Tool, accessed May 11, 2023
New York Post, NYC ICE office ‘fully booked’ for migrant appointments through late 2032: document, March 13, 2023
Government Accountability Office, Southwest Border: Challenges and Efforts Implementing New Processes for Noncitizen Families, Oct. 17, 2022
U.S. House Appropriations Committee, Budget Hearing – Fiscal Year 2024 Request for the U.S. Immigration and Customs Enforcement Agency, April 18, 2023
Documented, Immigrants See No Clear Path Outside 26 Federal Plaza, Dec. 15, 2022
The New York Times, Migrants Encounter ‘Chaos and Confusion’ in New York Immigration Courts, Nov. 3, 2022
Gothamist, For NYC migrants, just getting inside immigration courthouse is a feat, Nov. 18, 2022
Spectrum News, Families spend hours in the cold waiting for ICE appointments, Nov. 22, 2022
American Immigration Council, Beyond A Border Solution: How to Build a Humanitarian Protection System That Won’t Break, May 3, 2023
Phone interview, Rebekah Wolf, policy counsel at the American Immigration Council, May 9, 2023