One Last Point on In Absentia and Alien Fugitives

It isn't whether you will come to court, it's whether you will leave at the end — and nearly 600,000 haven't

By Andrew R. Arthur on October 30, 2020

Following last week's presidential debate, there has been a fair amount of discussion (including by me) about in absentia orders of removal — that is, removal orders issued by immigration judges (IJs) when alien respondents fail to appear at removal hearings. One last point is in order: The question ultimately isn't whether the alien comes to court or not, but whether the alien leaves when ordered removed. Hundreds of thousands have answered that question "no".

As a lead-in to that point, however, I have a semantics question for all those who have been attempting to measure the in absentia rate (I myself used a chart from the Executive Office for Immigration Review (EOIR), the DOJ component with jurisdiction over the immigration courts): How do you measure the in absentia rate?

Asylum proceedings involving aliens apprehended at the border who have claimed credible fear (the topic at the debate, although it was not presented as such) are not one hearing, they are at least two: one initial master calendar hearing, which is like a criminal arraignment; and one merits hearing, where the immigration judge (IJ) hears testimony and issues a decision on the asylum claim.

When I say, "at least", I should say "ideally", because those aliens have come to the United States to apply for asylum, and should be prepared to go forward pretty quickly with an application. The number of such hearings in any given case is rarely that low, however. An unrepresented alien will usually request at least one continuance for an attorney (which is reset on the master calendar docket), and the attorney will ask for at least one continuance (again, to the master calendar docket) to file the application.

In many cases, either the unrepresented respondent or the attorney will also ask for a continuance to obtain evidence. And often the case will be reset by the court, the respondent, or the government (in this case, an ICE attorney) for one reason or another. So there can be four or more hearings, up to and including the merits (assuming that the case can be completed at the first merits hearing), that the alien must attend.

The EOIR chart referenced, however, showed that 5 percent of aliens who were placed into removal proceedings following a positive credible fear determination over a 12-year period and who actually filed for asylum were ordered removed in absentia after they failed to appear (the total percentage of in absentias was actually much higher for aliens referred to IJs following a positive credible fear finding as a whole — 32.5 percent, or almost one in three).

Using four hearings as a baseline in a hypothetical case, assume that the respondent showed up at three, and missed the last one. Is the in absentia rate in that case 100 percent, or 25 percent (one no-show out of four)? From reviewing comments on the president's take at the debate, it seems like most are implicitly relying on the latter math, although logically (and honestly), it would be the former.

Under that logic, however, the 5 percent in absentia rate on the EOIR chart for aliens who filed an asylum application but failed ultimately to appear would be at most 2.5 percent, and likely lower.

All of which brings me to my point. Aliens ordered removed in absentia have already shown that they will ignore one government order. That means that they will almost definitely ignore two, specifically, the order by the court to appear for the removal hearing, and the order by DHS to appear for removal (assuming that ICE can find them to begin with).

That really is — or should be — the key issue. Unfortunately, in hundreds of thousands of cases, aliens ordered removed don't leave. In particular, as of the end of FY 2019, according to the ICE Enforcement and Removal Operations (ERO) branch, there were 595,430 immigration fugitives — that is "alien[s] who ha[ve] failed to leave the United States based upon a final order of removal, deportation or exclusion, or who ha[ve] failed to report to ICE after receiving notice to do so."

That is up almost 30,000 from just a year before, and is larger than the population of Wyoming. Of course, this does not include only aliens who have applied for asylum, or more specifically aliens who applied for asylum after entering illegally and receiving positive credible fear determinations.

But given the fact that at least 43.5 percent of the 1,262,765 aliens in removal proceedings as of September are applying for asylum, it is a fair bet that many — if not most — of those fugitives were denied asylum. And given the fact that a foreign national's purpose in paying thousands of dollars to a smuggler to enter the United States illegally is to live in the United States, the likelihood that many of them used credible fear to enter the United States to begin with is high.

Of course, if they had been detained, upwards of 100 percent of those fugitives would have been removed. But they weren't detained, so they weren't removed.

Drilling down just a bit further, the topic of no-shows at the debate specifically involved alien family units (FMUs), that is, adults entering illegally with children. While ICE ERO does not list the number of FMU fugitives, it does contain a rather startling statistic: In FY 2019, the rate at which FMUs on so-called "alternatives to detention" (ATD) absconded from that program was 26.9 percent — more than double the absconder rate for non-FMU ATD participants.

I will leave it to my colleague Dan Cadman to explain the flaws in ATD, but ATD is an "alternative to detention" like Spam is an alternative to an eight ounce filet mignon. The FMU statistic proves it. Those aliens simply cut and run (often literally) before a final judgment on the asylum claim that they allegedly came to the United States to pursue.

Again, it is important to address the issue of in absentia orders of removal. Alien respondents should not game the credible fear process just to live in this country, and certainly should not use their children to aid them in doing so. That discussion, however, must be honest and clear.

But it is more important to focus on the central issue: Will aliens who have been given due process in the course of their removal proceedings and received final orders of removal comply with those orders and leave? In almost 600,000 cases (and counting), that answer has been a resounding "no."