The Government Accountability Office (GAO) recently released a report captioned “Actions Needed to Track and Report Noncitizens’ Hearing Appearances”. The key takeaway related to that title is that 34 percent of alien respondents in immigration court fail to appear at some point during the removal proceeding process. Dig deeper though and you’ll find out a lot more about the sorry state of the immigration-court process — and plenty of room for improvement.
In Absentia Deportations. To put all of this into context, let’s start with section 240 of the Immigration and Nationality Act (INA), which governs removal proceedings in immigration court.
Those proceedings are presided over by immigration judges (IJs). It’s a position I held for more than eight years, but I never had to worry about respondents not showing up because I was in the late York Immigration Court, a detained facility in Pennsylvania.
All respondents in detention must appear in court whether they want to or not, so the no-show rate is effectively zero, which needless to say skews the overall rate of what are termed “in absentia” cases.
Few respondents in removal proceedings — and even fewer under the Biden-Harris administration — are detained, however, meaning that for the immigration-court system to work, they must first appear. The problem is that more than a third simply don’t.
Ever since the INA was first enacted in 1952, it has included some sort of penalty for adjudicators (then known as “special inquiry officers”; they didn’t become IJs until 1973) to impose on respondents who fail to show up for court. 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.
Recognizing that no-shows were an increasing problem, Congress expanded on that 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 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. (Emphasis added.)
The referenced section 239(a) of the INA governs the issuance of Notices to Appear (NTAs), the charging documents in removal proceedings, forms similar to statements of charge, indictments, or complaints in criminal cases.
Section 240(b)(5)(B) of the INA waives that notice requirement if the alien fails to provide an updated address, while 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 due to “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 requires real enforcement on the back end — after the in absentia removal order has been issued — to have any impact. Otherwise, those aliens simply join the millions of others here illegally.
34 Percent In Absentia Rate. Which brings me to the issue GAO was investigating: the percentage of removal cases that ended in an in absentia order. The report explains:
From fiscal year 2016 through fiscal year 2023, our analysis of EOIR data shows that the total in absentia rate for initial case completions of non-detained respondent cases was 34 percent. The in absentia rate also varied by court location, legal representation status, and demographic characteristics.
That last sentence downplays the wide variation in no-show rates based on those three factors, court location, representation, and nationality.
Court Location. The immigration court in Honolulu, Hawaii had the lowest in absentia rate, 10 percent, whereas the Charlotte, N.C. court had the highest proportion of respondents failing to appear, 64 percent.
GAO suggests higher no-show rates in certain courts may be due in part to the availability of public transportation “and the size of the court’s geographic jurisdiction”.
Those factors may explain in part why Charlotte — a court that hears removal cases in both Carolinas but that also has a robust public transport system — has the nation’s highest in absentia rate, but it fails to account for the nearly identical 63 percent rate in Harlingen (in the Rio Grande Valley, one of seven immigration courts in Texas), let alone why the two courts in Atlanta have 52 percent and 56 percent no-show rates, respectively.
Asylum Denials, Consequences, and Rationales. Maybe the fact that the average asylum denial rate in Atlanta is 89.5 percent (the national average is 60.6 percent), in Charlotte is 88.7 percent, and in Honolulu is 43.2 percent (one IJ there denies less than a third of asylum cases he hears, just 30.2 percent) plays a role, too.
Note that the average asylum denial rate in San Francisco is 29.2 percent and that only about one in five (19 percent) of the cases there end in in absentia orders — even though that court and the one in Sacramento (29 percent in absentia rate and an average asylum denial rate of 36.6 percent) share jurisdiction over more than two-thirds of the massive Golden State.
GAO polled 30 stakeholders (I wasn’t one of them) to identify the reasons why aliens fail to appear in immigration court, and 11 them stated that “fear of the immigration court process (e.g., they believe they will be incarcerated if they go to court)” was a key driver — the leading response.
The other responses: “respondents misinformed by notarios or other community members” (10); “respondents believe they have a weak case for relief” (6); “respondents have no intention of going to court” (5); and “respondents dealing with abuse, trauma, or changes in life circumstance” (4).
Representation. The in absentia rate varied wildly between respondents who had representation (9 percent) and those who didn’t (75 percent), or, as GAO’s statistical analysis revealed: “respondents with legal representation had 97 percent lower odds of receiving an in absentia removal order for their initial case completion”.
Explanations for this discrepancy varied, with private attorneys claiming they took care to remind their clients of upcoming hearings and warned them about what would happen if they didn’t. The following, however, is the best explanation from my experience:
[f]ive government officials, including two assistant chief immigration judges and two immigration judges, told us that respondents who have strong cases for asylum may be more likely to appear for their hearings. Similarly, respondents who have strong cases for asylum may also be more likely to obtain legal representation.
In other words, respondents who bother to hire lawyers likely have better claims (and are thus more likely to appear) and respondents with better claims hire lawyers (ditto) — the very definition of a “virtuous circle”.
Nationality. GAO also found that nationals of certain countries were much more likely to appear for their immigration court hearings than others:
Across the 10 countries with the highest volume of initial case completions across fiscal year 2016 through fiscal year 2023, the in absentia rates ranged from 7 percent for respondents from Cuba to 64 percent for respondents from Nicaragua. Within the top 10 countries with the most initial case completions, Guatemala, Honduras, Mexico, and El Salvador collectively made up about two-thirds of non-detained initial case completions. Respondents from Guatemala and Honduras had in absentia rates of 46 percent and 49 percent, respectively, while respondents from Mexico and El Salvador both had in absentia rates of 23 percent.
Why are Cubans more likely to appear? As the report indicates, they must show up “to establish eligibility to apply to become lawful permanent residents under the Cuban Adjustment Act of 1966”, an immigration carve-out that provides special status for nationals of the island nation.
Nationals of China were also more likely to appear than other aliens: their in absentia rate was “just” 12 percent, an outcome some stakeholders chalked up to the relatively high proportion (92) of those respondents who were represented in immigration court.
Again, all of these findings go back to the analysis above: the more likely that aliens will be granted relief, the more likely they will: (1) hire lawyers to represent them; and (2) appear.
Family Cases. One unique phenomenon that has developed at the Southwest border over the past decade is the large number of migrants in “family units” (FMUs) — alien adults and children travelling together — who have been apprehended after entering illegally.
In FY 2019, for example, more than 55.6 percent (473,682) of all the illegal migrants apprehended at the Southwest border were in FMUs. More recently, in FY 2024, the proportion of FMU apprehensions was lower (36 percent) but the total number of FMUs apprehended was higher (560,353), as Border Patrol agents made nearly 83 percent more apprehensions (1.557 million) than they had five fiscal years earlier.
Why the increase in illegal family migration? Because adult migrants (and more importantly, smugglers) know that thanks to a poorly decided 2015 district court order, they and their children will likely be quickly released to live and work in the United States, assuming that they are ever detained at all.
The Obama, Trump, and Biden administrations each attempted to deter illegal FMU migration (which uniquely threatens and harms the children being used as pawns in the scheme) through various means, most saliently by fast-tracking their removal cases in immigration court.
Most recently, in May 2021, the Biden administration created a “dedicated docket” in which those cases would be quickly heard. As a joint DHS/DOJ press release explains:
Under this new process, certain recently arrived families may be placed on the Dedicated Docket. Families may qualify if they are apprehended between ports of entry on or after Friday, May 28, 2021, placed in removal proceedings, and enrolled in Alternatives to Detention (ATD). . . .
Under the Dedicated Docket. . . immigration judges will work generally to issue a decision within 300 days of the initial master calendar hearing, subject to the unique circumstances of each case including allowing time for families to seek representation where needed.
Through the end of FY 2024, nearly 147,000 cases had been placed on the dedicated docket and just less than 47 percent (68,640) had been completed. Just less than half of those aliens were represented.
GAO determined than 31 percent of the orders that had been issued in dedicated docket cases it reviewed (54,465) were issued in absentia — lower than the overall no-show rate and a much smaller percentage than under similar programs implemented between FY 2019 and 2020 (67 percent) and 2014 to 2017 (65 percent).
That said, it’s questionable whether the resources the Biden administration expended on its dedicated docket/ATD plan made much of a difference: of the nearly 1.225 million FMU cases completed between FY 2016 and FY 2023 that were not on a special docket, the total in absentia rate was 32 percent, just 1 percentage point higher than under the May 2021 plan.
Lest you immediately conclude the Obama and Trump FMU programs were not as effective as the Biden one, I would recommend caution.
That’s because Biden’s DHS has terminated, dismissed, or closed more than 700,000 pending removal cases, often for reasons having nothing to do with the strength of the respondents’ case or even whether they had any right to remain. That plainly skewed the in absentia rates, meaning this isn’t an apples-to-apples comparison.
Case Completion Times. Although it had little to do with the subject of its report, GAO also offered its findings on “case completion times” — the number of days it takes for immigration court cases to reach a final order. And boy, are those findings insightful.
Of the 3.9 million cases that the immigration courts received between FY 2016 and FY 2023, just one-third had been completed, a particularly dispiriting statistic given that GAO’s analysis covers eight fiscal years.
Nearly 99 percent of the detained cases received by the courts were completed within that timeframe, but just 31.4 percent of the non-detained ones were.
That’s likely because the median completion time for detained cases varied from between 39 days in FY 2018 and 92 days in FY 2020 (the latter likely impacted by the Covid-19 pandemic) while the median time it took to complete non-detained cases varied between 239 days (in FY 2017) and 1,051 days (nearly three years, in FY 2021).
Again, the shorter completion times for non-detained cases in FY 2022 (1,036 days) and FY 2023 (846 days) were likely skewed by — if not the direct result of — DHS leadership under Biden telling ICE attorneys (who represent the government in immigration court) to tank legitimate removal cases involving respondents with no path to status.
A Poorly Understood Scandal. That would be a national scandal if only more people understood how it worked, and it will likely take the incoming administration at least a year to uncover just how bad things at the courts have been for the past four years.
But given there were nearly 3.6 million pending removal cases before the nation’s 735 IJs at the end of FY 2024 (a backlog of more than 2,000 cases per judge), the immigration court system is teetering on the brink of disaster. GAO doesn’t offer a path out of this miasma, but at least it offers some facts on what’s currently happening that Trump 2.0 can look to for solutions.
Here are the key takeaways from the GAO report on immigration court no-shows: Detaining aliens speeds their cases through the system and ensures they appear; and aliens with no hope of staying legally are less likely to show up for court and will opt instead to skip out and remain illegally. Respectfully, that’s just common sense, a precious commodity that’s been in short supply of late.
https://cis.org/Arthur/GAO-OneThird-Immigration-Court-Aliens-are-NoShows
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