Immigration Court No-Shows Soar in FY 2024

On track to exceed 170K as immigration enforcement has become kabuki theater, and you’re paying the price

By Andrew R. Arthur on April 10, 2024

The latest disclosures from the Department of Justice (DOJ) reveal that the number of alien respondents who failed to appear for removal proceedings is soaring — on track to exceed 170,000 in FY 2024, which would best last year’s record of nearly 160,000. Those aliens may be under orders of removal, but the Biden administration has no inclination — let alone plans — to remove them. Which is why so many aliens likely didn’t bother to appear.

In Absentia Orders of Removal. Section 240 of the Immigration and Nationality Act (INA), governs removal proceedings in immigration court.

Removal cases are heard by immigration judges (IJs), a position I held for more than eight years. Those IJs determine whether alien respondents are removable, consider bond requests, adjudicate applications for “relief” from removal (asylum, adjustment of status, cancellation of removal, etc.), and when appropriate, issue orders of removal.

That entire process is generally dependent, of course, on respondents actually appearing in court. While the Biden administration detains a tiny fraction of the three million-plus aliens currently in proceedings, the vast majority are free to live here while their cases are proceedings.

Congress anticipated that some respondents would fail to appear, and consequently section 240(b)(5)(A) of the INA provides, in pertinent part, that:

Any alien who, after written notice required ... 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.]

Simply put, Congress has made clear that respondents must show up in immigration court or they will be deported. That said, the whole process requires DHS enforcement to function.

The Decline in DHS Removals. DHS’s Office of Homeland Security Statistics (OHSS) has made significant progress of late in pulling back the curtain on the department’s enforcement efforts — likely to the chagrin of the Biden administration.

In its most recent report, current through the end of December, OHSS reveals that DHS removed just over 179,400 aliens in FY 2023. That may sound like a lot, but it’s important to keep in mind that CBP alone encountered more than 3.2 million aliens at the borders and the ports last fiscal year.

Those 179,400-plus removals in FY 2023 are even less impressive when you place them into historical context. In FY 2014, under the Obama administration, DHS removed just fewer than 405,000 aliens, and as recently as FY 2019, removals exceeded 347,000.

Why are removals down so markedly? Because DHS Secretary Alejandro Mayorkas is actively attempting to limit the number of removable aliens subject to “enforcement actions”, that is, questioning, arrest, detention, prosecution, and removal by DHS officers and agents. As he explained in a September 2021 memo titled “Guidelines for the Enforcement of Civil Immigration Law”:

The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them. We will use our discretion and focus our enforcement resources in a more targeted way. Justice and our country's well-being require it.

That memo identifies three classes of aliens who are “priorities” for enforcement action: (1) threats to national security (terrorists and spies); (2) threats to public safety (serious criminals); and (3) threats to border security (aliens who entered illegal after the arbitrary date of November 1, 2020).

Notably absent from that list are aliens ordered removed in absentia after they failed to appear for their removal proceedings. That notable omission is despite the fact that each of those individuals received their due process rights and that section 241(a) of the INA mandates that aliens under final removal orders be detained and removed within 90 days.

The No-Show Statistics. In the first quarter of FY 2024 — October to December 2023 — IJs issued 42,714 in absentia orders of removal for alien respondents who failed to appear in immigration court, putting the court on pace to issue about 170,000 such orders this fiscal year.

To put the most recent in absentia figure into context, that’s more no-show orders in just three months than IJs issued in all of FY 2014 (25,909), FY 2015 (38,260), FY 2016 (34,305), or FY 2017 (42,044).

Part of that massive increase has to do with the fact that there are more IJs today than there were 11 years ago, and that the immigration court is now able to hear more cases and issue more decisions. The number of total IJs on board increased 77.5 percent between FY 2014 (249) and FY 2019 (442), and grew by an additional 64 percent by the end of the first quarter of FY 2024 (725).

That said, while there were about three times as many IJs at the end of December as there were in FY 2014, the total number of in absentia orders increased by nearly 560 percent over that same period, so increased hiring cannot be the sole factor at play — there must be more to it.

I can’t tell you dispositively why the number of aliens who failed to appear at their removal hearings has soared under President Biden and Secretary Mayorkas, but I do have an educated guess.

In all of its policies — from its announcement the day of the 2021 inauguration that it would pause alien removals for 100 days, to its “overarching non-detention” regime for illegal migrants, to the Mayorkas guidelines themselves — the administration has signaled to aliens with no legal right to be here that it has no interest in enforcing Congress’ dictates in the INA. If the White House doesn’t care, why would the aliens?

In much the same way, Secretary Mayorkas has concluded he has the discretion to determine which immigration laws he’ll enforce — few, if any, as it turns out — and so alien respondents in removal proceedings have concluded that they, too, had the right to decide which court orders they’ll comply with.

What happens if 725 IJs held removal proceedings in three months and 42,714 respondents failed to appear? For the time being, not much. Immigration enforcement has become kabuki theater. Enjoy the show — you’re paying for the enforcement the administration refuses to provide.