The immigration courts are a component of DOJ’s Executive Office for Immigration Review (“EOIR”, pronounced like Pooh’s sad donkey friend), and EOIR recently updated its statistics on case outcomes in those courts. The most shocking stats reveal that 8,000-plus aliens per month who once appeared in court and filed asylum applications have stopped showing up for their hearings and are being ordered removed in absentia. Those cases tell a tale about “open borders”, the lure of working here, and the real reason millions of “asylum seekers” came to the United States under the last administration.
A Quick Recap of the Biden Years
In the 2020 presidential election campaign, then-candidate Joe Biden railed against what he described as the “moral failings” and “national shames” of immigration enforcement under Trump I and promised to “reassert America’s commitment to asylum-seekers and refugees”.
Once in office, Biden’s DHS — under then-Secretary Alejandro Mayorkas — proceeded to ignore the tools Congress had given the department in the Immigration and Nationality Act (INA) to ensure aliens wouldn’t abuse our humanitarian instincts by using asylum as a backdoor into the United States.
Section 235 of the INA, for example, requires DHS to detain every inadmissible “applicant for admission” until they are either admitted to this country, granted asylum, or removed, but my conservative analysis in January 2024 showed that 88.5 percent of all the aliens encountered by CBP at the borders and ports under the first three years of Biden were released into the United States instead.
Similarly, “expedited removal” under section 235(b)(1) of the INA permits CBP officers and agents to expel aliens without documents who are stopped at the borders and ports without first obtaining an immigration judge removal order, and to prescreen illegal migrants’ asylum claims using a procedure called “credible fear”.
And yet my (again conservative) August 2022 analysis revealed Biden’s CBP rarely used that key tool, and consequently nearly seven migrants were released into the United States for each one expelled under expedited removal, under the Biden-era assumption that nearly all aliens who came to the United States illegally were “asylum seekers”.
In fact, “asylum seeker” became shorthand under Biden for “illegal migrant”, with good reason: As I explained after reviewing Mayorkas’s congressional testimony in May 2022, the administration’s official policy was to allow every foreign national with the wherewithal to make it to the United States to apply for asylum, regardless of the strength of their claims or whether they feared persecution or torture at all.
Work Permits
Some six million illegal migrants cum asylum seekers came to the United States under Biden (not counting two million “got-aways” who evaded apprehension and didn’t appear in official statistics), and while some of those aliens came fleeing persecution and torture at home, they were the distinct minority.
The rest were drawn here by a related combination of factors: Biden’s “open border” policies, which drew aliens here illegally; an increasingly overwhelmed immigration court system that ensured it would be years before DHS could obtain removal orders for those aliens; and the opportunity for those aliens to obtain “employment authorization documents” (EADs), work permits, simply by applying for asylum.
Section 208 of the INA governs asylum, and while paragraph (d)(2) therein makes clear applicants for that protection aren’t “entitled to employment authorization”, the regulation governing EADs allows them to apply for and receive work cards 180 days after filing “a complete application for asylum”.
By FY 2024, USCIS under Biden was processing I-765s — EAD applications based on a completed asylum application — within about 15 days, down from more than three months during the three fiscal years prior.
The “work authorization tail” was now wagging the “asylum dog”.
Asylum Applicant In Absentia Removal Orders
Which brings me to an EOIR web page, “Asylum Applicant In Absentia Removal Orders”, updated on April 22 to reflect immigration court case outcomes through the end of the second quarter of FY 2026.
As that page makes clear, the statistics only relate to “Orders issued in absentia in removal, deportation, and exclusion cases with an application for asylum. Does NOT include cases in which a respondent indicated a fear of return but did not actually file an asylum application.”
Pursuant to section 240(b)(5)(A) of the INA, immigration judges must order alien “respondents” in removal proceedings removed in absentia when they receive notice of their removal hearings but fail to appear.
In all of FY 2016 — the last full fiscal year of the Obama administration — immigration judges issued just 3,203 such removal orders to aliens who had filed formal asylum applications (Forms I-589) in court but later failed to appear.
By FY 2019, immigration judges issued nearly 10,600 such orders, an average of 882 per month.
The key driver of that increase that fiscal year was a migrant surge triggered by a court order that required DHS to release aliens in “family units” (FMUs), adults travelling illegally to the United States with children, within 20 days of encounter.
In other words, if you grabbed a kid and entered illegally, you were assured of not spending more than three weeks in ICE detention.
But because that loophole attracted tens of thousands of family migrants to enter illegally per month and DHS had only 2,500 family detention beds, the department rarely went through the pretense of detaining any of them and instead placed them into removal proceedings and released them.
You don’t have to believe me. A bipartisan “Final Emergency Interim Report” issued by the Homeland Security Advisory Council’s CBP Families and Children Care Panel in April 2019 explained that quick FMU releases that fiscal year were “the major pull factor” drawing alien families illegally to the border.
Of the more than 851,500 migrants apprehended after entering illegally at the Southwest border in FY 2019, nearly 474,000 — 55.6 percent of the total — were aliens in FMUs, drawn by that promise of quick release.
Trump I responded with the “Migrant Protection Protocols” (MPP), better known as “Remain in Mexico”, under which illegal migrants — including those in FMUs — apprehended at the U.S.-Mexico line were sent back across the border to await their removal proceedings at which they could apply for asylum.
MPP removed the incentive for aliens to enter illegally and apply for asylum simply to obtain an EAD, and by January 2020 — two months before the Covid-19 pandemic shut down migration globally — just 5,161 aliens in FMUs were apprehended at the Southwest border, 17.7 percent of that month’s apprehension total.
And Then Came Biden
Biden quickly suspended and then scrapped Remain in Mexico, as Mayorkas implemented “catch and release” policies that ushered in increasing numbers of illegal entrants who weren’t being expelled under CDC’s pandemic-era Title 42 policy.
Consequently, in FY 2022, CBP encountered nearly 2.4 million aliens, more than 2.2 million of whom were illegal migrants apprehended by Border Patrol at the Southwest border.
In lieu of detention, most illegal migrants were issued a Notice to Appear (NTA), the charging document that begins removal proceedings, and the immigration court backlog swelled from less than 1.4 million cases in FY 2019 to nearly 4 million cases in FY 2024.
The Biden administration attempted to hide that massive rise using what the House Judiciary Committee has referred to as a “quiet amnesty”, pursuant to which nearly one million pending cases were either administratively closed, dismissed, or terminated without being resolved, but there are only so many judge benches to stash millions of files under.
By FY 2024, as the asylum applications filed by Biden’s border migrants to obtain EADs had wended their way through the immigration court system and were ready for adjudication, the number of respondents with pending I-589s who failed to appear and were ordered removed in absentia jumped to more than 19,000 — an average of 1,589 per month, nearly twice the monthly rate five years earlier, during the FMU surge.
The Latest Figures
As that process continues and Biden’s border removal cases are nearing final adjudications, no-show asylum applicant removal orders are quickly increasing.
In FY 2025, immigration judges ordered more than 50,000 respondents who had filed I-589s but then failed to appear in court removed in absentia — one in six of all no-show orders issued last fiscal year (306,500-plus), and an average of nearly 4,200 orders per month.
That trend is only increasing. Through the end of March (the midway point of FY 2026), immigration judges issued in absentia removal orders to more than 48,000 respondents who had come to court in the past, filed asylum applications, but then ultimately failed to appear.
That’s an average of more than 8,000 no-show orders per month for respondents with pending I-589s, and lest you think this figure simply reflects the increase in the overall backlog, here are the facts: The total number of pending cases in immigration court has risen nearly 257 percent since FY 2019, but the monthly average of in absentia orders for aliens with pending asylum applications has ballooned by more than 900 percent over that same period — 3.5 times quicker than the overall backlog rate.
Debunking the Myths
Throughout the Biden administration, DHS and most in the media portrayed the illegal migrants pouring into this country as bedraggled innocents fleeing from persecution, war, famine, gripping poverty, and/or “climate change”, cast into a bewildering and complex legal system they needed government-paid lawyers to navigate.
Respectfully, those migrants’ ability to contract with criminal smuggling organizations and evade authorities on the journey to the United States should have called such characterizations into question from the beginning, but if you really want to understand how savvy many of those illegal entrants really were, just look at the EOIR stats.
Here’s the cold reality: Millions of aliens came illegally under Biden, were released by DHS under the ruse of being “asylum seekers”, and were placed into removal proceedings to seek protection; tens to hundreds of thousands of them realized they could get work permits if they simply applied for asylum; and now — in increasing numbers — they aren’t coming to court because they never wanted asylum — they wanted to work.
There is no reason for an alien with a legit claim to skip court, because an asylum grant unlocks countless government benefits, places the beneficiary on a path to a green card and citizenship, and allows aliens to bring their immediate family to the United States.
The fact that they aren’t showing up in court and abandoning their applications underscores what their real intentions were all along.
If the American people didn’t feel like suckers before, when they were paying billions per month to care for tens of thousands of so-called “asylum seekers” arriving monthly, they should now. We all got played by migrants who claimed to seek protection but really wanted work permits, and the worst part is that the Biden administration likely realized what was happening in real time — and simply didn’t care.