Central to many immigration debates (particularly over the detention of asylum applicants and migrants who have entered illegally and claimed a fear of return) has been whether aliens placed into removal proceedings actually appear at those proceedings, or whether they skip their proceedings and simply disappear into the United States. A recent "Special Report" from the American Immigration Council (AIC), an affiliate of AILA, the immigration lawyers lobby, offers its take on this question. It makes some interesting points, but its final conclusion is flawed.
The report claims that only 17 percent of aliens failed to appear in immigration court, which the group touts in huge letters on its home page: "IMMIGRANTS DO SHOW UP FOR COURT". A more accurate reading of the data in the report reveals a no-show rate that is double that, with more than one-third of case completions over an 11-year period resulting in in absentia orders of removal.
I have written on this topic before, most recently in connection with claims made at the last presidential debate in October. Both Donald Trump and Joe Biden focused on the rate at which aliens entering illegally with children ("family units" or FMUs) appeared — or not — at their subsequent removal proceedings.
Briefly, aliens who are apprehended entering illegally along the border or at the ports of entry without proper documents are subject to expedited removal — that is, being removed from the United States without being placed in removal proceedings before an immigration judge (IJ) — under section 235(b)(1) of the Immigration and Nationality Act (INA).
If, however, the alien claims a fear of return, and that fear is found to be credible by a USCIS asylum officer (AO), the alien will be referred to an IJ to apply for asylum. Alien children in FMUs are required to be released within 20 days under a 2016 circuit-court interpretation of the 1997 Flores settlement agreement (FSA), and to avoid family separation, the adults are generally released, as well.
At issue in the October debate (although it was not framed as such) was whether aliens who had been released after AOs had found that they had a credible fear of return — and in particular FMUs — actually appeared at their removal proceedings, or failed to and were ordered removed in absentia by an IJ.
As I noted in a later post, the real question is whether alien respondents who were ordered removed by IJs — in absentia or otherwise — actually left, and almost 600,000 had failed to do so by the end of FY 2019. But that in absentia rate is still an issue, as the October debate showed.
Determining the rate at which alien respondents fail to appear before IJs is more difficult that it may sound, but there are still sound statistics on which to make an assessment.
The Executive Office for Immigration Review (EOIR, the DOJ component with jurisdiction over IJs and the Board of Immigration Appeals (BIA)), has provided data on the total number of in absentia removal orders from FY 2014 through the first quarter of FY 2021, but that simply gives you the numerator. Figuring out the denominator (that is, the total number of cases in which aliens are not ordered removed in absentia) is subject to interpretation.
I will note that EOIR uses the total number of "initial case completions" (ICCs) during the period of time in which those in absentia orders are issued as the denominator. An ICC "is the first dispositive decision rendered by an" IJ. For example, in removal proceedings, the IJ can order the respondent removed; grant the respondent voluntary departure in lieu of removal, relief, or protection; or terminate the case. Orders changing venue, or granting continuances or administrative closure, are not counted as ICCs.
EOIR actually has provided two different sets of in absentia numbers.
In its Statistics Yearbook for FY 2018 (the latest edition of that compilation), EOIR states that in FY 2018, there were 46,480 in absentia orders issued compared to 182,421 ICCs in removal proceedings, an in absentia rate of almost 25.5 percent.
In a more recent EOIR chart comparing in absentia rates, EOIR states that there were a slightly lower number of in absentia orders in FY 2018 (46,105), compared to a much lower number of total orders (118,931), for a total in absentia rate of 39 percent.
The statistics in that chart include not just removal cases, but older deportation and exclusion cases as well. In addition, that chart excludes aliens who were detained. Detained aliens have to show up for their proceedings — I issued only one in absentia removal order out of thousands of orders I issued as an IJ in a detained facility, for an alien who refused to leave his cell. Therefore excluding detained aliens gives a more accurate picture of the actual in absentia rate.
As for the lower number of total in absentia orders, that chart (which was prepared in January 2021, more recently than the FY 2018 Statistics Yearbook, which was updated in August 2019) likely excludes aliens who had been ordered deported, excluded, and removed, but whose cases were subsequently reopened.
In other words, the more recent in absentia chart almost definitely presents a more accurate picture of in absentia rates in immigration courts than the Statistics Yearbook because the data is more up to date, considers all proceedings (not just removals), and excludes detained cases.
The AIC report disagrees with EOIR's method of determining the percentage of in absentia removals (which it describes as the "IJ decisions method"). Under that method and using AIC's data, for example, the FY 2018 in absentia rate was 41 percent, higher than AIC argues is accurate.
The report analyzed FOIA data from "2,797,437 nondetained removal proceedings" between FY 2008 and FY 2018, and proposed two alternative calculation methods for determining the in absentia removal rate.
"All Completions" Calculation Method
The first is what it describes as the "all completions" method. That includes in the denominator what AIC describes as "initial case completion[s] of any kind, including both initial [IJ] decisions and other [IJ] completions, such as administrative closures."
AIC excludes detained cases, but apparently only considers removal proceedings, and not deportation or exclusion cases. Perhaps for that reason, the number of in absentia IJ decisions in FY 2018 is listed in that report as 44,764, lower than the number in either the EOIR in absentia chart or the Statistics Yearbook for that fiscal year.
Using the "all completions" method, AIC concludes that the in absentia removal rate in FY 2018 was 38 percent, and that the total in absentia rate between FY 2008 and FY 2018 was 27 percent.
"All Matters" Calculation Method
The second method, deemed by AIC the "all matters" method, uses "all initial case completions (including initial [IJ] decisions and other [IJ] completions) and pending cases".
Using that much larger denominator, the in absentia rate in FY 2018 drops to 5 percent, while the in absentia rate for the period FY 2008 to FY 2018 falls to 17 percent.
Analysis of AIC's Calculation Methods
As shown, AIC's "all completions" method and "all matters" method result in a lower percentage of aliens who were ordered removed in absentia, because the denominator is much larger under each. In my opinion, those methods erroneously inflate the denominator, and for that reason, present a skewed picture of the actual in absentia rate.
The "all completions" method of calculating the rate, as noted, includes administrative closures in the total number of IJ completions.
Administrative closure, however, is not a "completion", unless, respectfully, the observer is a cynic.
The BIA has described administrative closure as "a procedural tool created for the convenience of the Immigration Courts and the" BIA. It explained:
Administrative closure ... is used to temporarily remove a case from an [IJ's] active calendar or from the [BIA's] docket. In general, administrative closure may be appropriate to await an action or event that is relevant to immigration proceedings but is outside the control of the parties or the court and may not occur for a significant or undetermined period of time.
Note the use of the word "temporarily" in the excerpt above. Administrative closure does not "complete" a case, it simply puts it on hold, indefinitely. Most importantly for purposes of this analysis, alien respondents are not required to appear in court as long as their cases are administratively closed, and therefore could not have been ordered removed in absentia during that period.
Administrative closure was a tool that was used extensively, particularly between FY 2012 and FY 2017. Between FY 2008 (when there were 171,820 cases subject to administrative closure) and FY 2011 (when there were 178,248), fewer than 4,000 cases were administratively closed annually.
Beginning in FY 2012, however, more than 10,000 cases were administratively closed annually, and more than 40,000 in FY 2016 alone. In that fiscal year, the total number of administratively closed cases stood at 324,762, while at the end of that fiscal year there were 521,507 pending cases in immigration court. In other words, there were 62 percent as many administratively closed cases as there were active cases pending before IJs in FY 2016.
Then-Attorney General Jeff Sessions ended the practice in May 2018. Sessions did not, however, order that all cases that had been administratively closed be placed back on the IJs' and BIA's dockets. On January 7, there were still 307,986 administratively closed cases.
On that date, by comparison, there were 1,277,152 pending cases on IJs' dockets, not counting administrative closures. This means that adding administrative closures to the total would increase the number of pending cases before the immigration courts by almost one-fifth.
And here is where the cynic has a point. As EOIR reported on January 7: "For inactive pending cases, the average length of time a case has been administratively closed is 5,961 days (approximately 16 years) and the median length of time is 4,032 days (over 11 years)." It is difficult to assert that a case has been "temporarily" removed from the docket when more than a decade has passed with no action.
But that means that in the average administratively closed case, the respondent has not been expected to appear in immigration court for some 16 years. Adding those cases to the in absentia denominator is going to drive down the percentage of no-shows significantly. And, as shown above, it does.
Using AIC's "all matters" method drives down the in absentia rate even more, as noted above.
There is a certain level of logic to using that calculus at first blush (if administrative closures were excluded, of course, for the reasons explained above). It could be argued that comparing in absentia orders to all IJ orders (as the "IJ decisions" method does), overstates the in absentia number because it does not consider all of the cases in which the respondent has appeared and will appear.
That is a salient point, because most aliens have more than one hearing before the IJ issues a final decision in the matter, or in the terms above, before the ICC occurs. The respondent has to appear at all of those hearings (with the rare exception of cases in which his or her appearance is waived), and a failure to appear at any of the hearings can result in a final order in absentia.
In my experience (and according to the AIC report's statistics), a large number of aliens who are no-shows (more than 45 percent) fail to appear at their first hearing (known as the "initial master calendar hearing"), so it could be argued that comparing just in absentia final orders during a period of time to all cases in which the IJ issues a final order skews the total in absentia percentage.
And, as that report shows, more than 15 percent of all ICCs occur at the fourth hearing, more than 10 percent of ICCs follow the fifth, and more than 5 percent of ICCs occur after the sixth and seventh, respectively. In some small percentage of cases, the case is not completed until 20 or more hearings have been held.
That raises the question of why any removal proceeding would require more than 20 separate hearings, but it also demonstrates the problems with calculating the in absentia rate. The denominator can be a moving target as new cases are added, while the numerator is a fixed one.
But it also shows why the "IJ decisions" method is the best one for calculating the in absentia rate.
The AIC report, as noted, examines the in absentia rate over an 11-year period, from FY 2008 through FY 2018. During that period, there were 316,089 in absentia orders issued, and 614,182 IJ decisions issued that were not in absentia, that is, where the ICC occurred after the respondent appeared for every hearing. Using those numbers, the in absentia rate is 34 percent of the total, or greater than one-in-three.
By looking at ICCs over a broad swath of time, pending cases get decided, and the true in absentia rate becomes clearer. As noted, many aliens fail to appear at the initial master calendar hearing, but not all, as the AIC report reveals.
The percentage of final in absentia ICCs is higher after the second hearing than the percentage of ICCs issued following that second hearing where the alien appears (almost 25 percent vs. less than 20 percent).
It is only after the third hearing that the IJ is likely to issue a final decision in a matter in which the alien has actually shown up than when the alien hasn't (just less than 20 percent vs. more than 10 percent), and some small percentage of respondents are ordered removed in absentia at the tenth hearing.
For this reason, the annual in absentia rate under the "all matters" method ranges from 4 percent to 8 percent (in most of the years studied it is 5 percent to 6 percent), but the total in absentia rate under that method for the 11-year period is 17 percent. It might seem counter-intuitive that the total would be two to three times as high than the annual percentage (it was to me at first), but it makes more sense the longer you think about it.
Contained in the annual number of pending cases are ones in which the alien respondent is not going to appear, but that failure to appear has not happened yet, either because the alien is in proceedings, but has not yet had an initial master calendar hearing, or because the alien has had prior hearings that he or she has attended, but will fail to appear at in the future.
Dividing the number of in absentia orders by the number of non-in absentia orders and pending cases annually misses that fact. Adding in the number of administratively closed cases (in which the alien is not required to appear in court at all) simply skews the data even more.
Using the EOIR/"IJ decisions" method over an extended period of time provides the best picture of the actual in absentia rate. It excludes detained cases (which aliens as a rule are all but guaranteed of attending), and lowers the uncertainty that comes with examining the total number of in absentia orders — which is more or less fixed — against a pending caseload that will result in some aliens appearing, and some not.
AIC's proposed "all completions" method of determining the in absentia removal rate provides a skewed picture of that rate, because it includes more than 300,000 cases that are administratively closed — and at which the respondent is not required to appear — artificially bloating the denominator of total cases, and thereby lowering the actual percentage of aliens who were required to appear for hearings, but failed to do so.
Its "all matters" method of determining that rate simply compounds this issue, by adding in the (massive) number of pending cases to the denominator along with the number of administratively closed cases.
Most of the respondents in those pending cases will likely appear, but a significant minority will not. Despite this fact, the "all matters" method includes those cases as if they have appeared and will appear — until they don't.
The one downside to assessing the in absentia removal rate over an extended period of time is that it assumes that the future flow of aliens in removal proceedings will appear in similar numbers to the past and present flow. That will not necessarily be true, particularly if the so-called "Biden effect" occurs, and migrants enter the United States illegally and make questionable fear claims when they are apprehended by CBP, in order to stay and work in this country permanently.
We know that the number of aliens who were found to have credible fear by AOs and then failed to appear at their removal proceedings spiked in FY 2019, to 17,841, up from 10,713 the year before.
That increase coincided with a rise in positive AO credible fear determinations between FY 2017 (60,566), FY 2018 (74,677), and FY 2019 (75,252), and an escalation in total CBP encounters at the Southwest border during that period, from 415,517 in FY 2017 to 521,090 in FY 2018 to 977,509 in FY 2019.
Only time will tell. But at least we have an idea of how to measure the in absentia removal rate. It's just not either of the ones proposed by AIC.