Surge in Non-Appearances: In October, the Department of Justice (DOJ) released a chart titled “In Absentia Removal Orders,” providing statistics on alien respondents in removal proceedings who were expected to attend court but did not. The data revealed an unprecedented 159,379 instances in Fiscal Year 2023 where aliens failed to appear before immigration judges (IJs), marking an all-time high. This occurrence is just one of several examples illustrating the challenges facing the administration in managing the immigration system. While these aliens may not prioritize their court appearances, it is crucial to recognize the impact this has on the credibility of our legal system concerning immigration entry and exclusion.
To understand the situation, one must delve into section 240 of the Immigration and Nationality Act (INA), which governs removal proceedings in immigration court. IJs preside over these proceedings, a role I held for over eight years. In my experience at the York Immigration Court, located just beyond the Mason-Dixon line in Pennsylvania, where I dealt with detained cases, respondent appearances were mandatory. Respondents in detained facilities were physically present in court or appeared via Video Teleconference (VTC) from separate state or federal facilities.
However, a considerable number of respondents in removal proceedings, particularly under the Biden administration, are not detained. Consequently, for the immigration court system to function effectively, respondents must appear voluntarily. Regrettably, a notable and growing number choose not to do so.
Ever since the INA was first enacted in 1952, it has provided some sort of procedure for adjudicators (then known as “special inquiry officers”; they didn’t become IJs until 1973) to order the deportation of respondents who fail to show up. Section 242(b) of that 1952 act, for example, provided:
If any alien has been given a reasonable opportunity to be present at a proceeding under this section, and without reasonable cause fails or refuses to attend or remain in attendance at such proceeding, the special inquiry officer may proceed to a determination in like manner as if the alien were present.
Congress expanded on that in absentia removal authority in various provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). For example, section 240(b)(5)(A) of the current INA, as amended by IIRIRA, provides in pertinent part:
Any alien who, after the written notice required under [sections 239(a)(1) and (2) of the INA] has been provided to the alien or the alien’s counsel of record, does not attend a proceeding under this section, shall be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable. … The written notice by the Attorney General shall be considered sufficient for purposes of this subparagraph if provided at the most recent address provided under [section 239(a)(1)(F) of the INA]. [Emphasis added.]
The referenced section 239(a) of the INA governs the issuance of Notices to Appear (NTAs), the charging documents in removal proceedings, and forms similar to statements of charge, indictments, or complaints in criminal cases. I’ll get back to those NTAs below.
Section 240(b)(5)(B) of the INA waives that notice requirement if the alien fails to provide an updated address. In contrast, section 240(b)(5)(C) of the INA limits the instances in which an alien ordered removed in absentia can have such order rescinded (by filing a motion to reopen within 180 days based on “exceptional circumstances” or at any time if they show they never received notice).
Finally, section 240(b)(5)(D) of the INA limits the instances in which circuit courts may consider appeals from aliens ordered removed in absentia, while section 240(b)(7) of the INA bars those aliens from discretionary relief for 10 years after they have been ordered removed.
Simply put, Congress has made clear that respondents must show up in immigration court or face some serious consequences. That said, it’s a finely tuned process requiring real enforcement.
In Absentia Removal Orders. Which brings me to the DOJ chart. It reveals that last fiscal year, more than 159,000 respondents were ordered removed in absentia — a more than 150-percent increase over FY 2022 (62,595) but more importantly nearly 75 per cent more aliens who failed to appear in immigration than in FY 2019 (91,271) — the prior yearly high (records go back to FY 2008 when there were 27,350 no-shows).
It’s a staggering figure, larger than the population of Charleston, S.C., but saliently more than twice the number of aliens whom the Biden administration is ushering into the United States monthly under its (facially illegal) parole programs for aliens; (1) from Cuba, Haiti, Nicaragua, and Venezuela (CHNV parole); and (2) who preschedule their illegal entries at the Southwest border using the CBP One app (CBP One app interview scheme).
Although the administration is opening the door wide for more than 75,000 aliens monthly to take advantage of those two parole programs, it has no plan — and likely little inclination — to force them to leave once they’re here, even though they have no documents and no right to be in this country.
If the idea, however, is that those aliens’ parole will be revoked and they will be placed into removal proceedings and forced to leave after a few years of living and making money in the United States, good luck. As the massive spike in absentia orders in FY 2023 reveals, there’s no guarantee that they’ll ever show up to begin that process.
A Much Larger Problem Than It Appears. This problem is much larger than even these statistics suggest because CHNV parole and the CBP One app interview scheme are not the only two indignities the Biden administration has foisted upon the extremely narrow and tightly cabined parole authority Congress has given DHS.
Before a federal judge shut them down last spring, Biden’s DHS employed two separate parole programs under which illegal migrants at the Southwest border were released after apprehension: “Parole+ATD” (parole with some largely worthless “alternative to detention”); and “Parole with Conditions”.
Border Patrol agents released some 800,000 aliens they apprehended at the Southwest border in FY 2022 and FY 2023 under those two programs and an additional — but equally illegal — program known as “Notice to Report” (NTR).
None of those aliens were served with an NTA before they were released. The whole purpose of NTRs, Parole+ATD, and Parole with Conditions was to allow Biden’s CBP to move aliens out of custody as quickly as possible, without agents having to spend the extra hour or so it would have required to place them into removal proceedings.
All of those migrants were released on the condition that they appear at some point in the future at an ICE office to be served with an NTA, but the problem is, as NBC News reported last February, roughly 588,000 of those aliens still hadn’t received an NTA, and as the New York Post revealed in April, some wouldn’t be placed into proceedings until October 2032.
As if that weren’t bad enough, DHS’s Inspector General thereafter announced in September that addresses for more than 177,000 border migrants released by agents “were either missing, invalid for delivery, or not legitimate residential locations”. ICE officers can’t place aliens into removal proceedings if they have no idea where those aliens are.
Again, the issuance of an NTA is simply the start of the process, not the end, and even assuming ICE miraculously found and then suddenly served all 800,000 of those aliens, they would still need to appear in immigration court for their removal hearings. Which, as the DOJ statistics reveal, a massive and increasing number of respondents aren’t doing.
The Collapse of the Immigration System. But even all of that understates the seriousness of this problem because the 159,000-plus orders of removal for those no-shows in FY 2023 are just the start of a separate, and lengthy, process to physically remove those aliens. They’ll be added to an already teetering pile of million-plus other cases involving different aliens under final orders of removal whom ICE officers still have to find, detain, and remove.
Section 241(a)(1)(A) of the INA requires DHS to remove all aliens under final orders of removal within 90 days, but that mandate has never been more than an aspirational goal in the past, and thanks to restrictions DHS Secretary Alejandro Mayorkas placed on ICE enforcement in September 2021, it’s now a dead letter.
The biggest issue — and the one that threatens the integrity of the entire process — is that unless ICE deports aliens under final orders of removal, the entire system collapses and none of the immigration laws have any meaning anymore. You don’t have to trust me on that, however.
As Barbara Jordan — civil rights icon, former Democratic congresswoman from Texas, and then-chairwoman of President Clinton’s Commission on Immigration Reform — told Congress in February 1995: “Credibility in immigration policy can be summed up in one sentence: those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave.”
An immigration system that lacks credibility no longer works, and we are fast approaching that point. As the DOJ in absentia statistics reveal, an increasing number of aliens — 159,000-plus in FY 2023 — aren’t even bothering to come to court anymore. They may not care about the system’s credibility, but you should.
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