At What Rate Do Noncitizens Appear for Their Removal Hearings? Measuring In Absentia Removal Order Rates

At What Rate Do Noncitizens Appear for Their Removal Hearings? Measuring In Absentia Removal Order Rates

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August 5, 2021
At What Rate Do Noncitizens Appear for Their Removal
Hearings? Measuring In Absentia Removal Order Rates
Noncitizens who are charged by the Department of
year by the total number of initial case completions (ICCs)
Homeland Security (DHS) with immigration violations may
in that same year. An ICC is “the first dispositive decision
have their cases adjudicated during immigration court
rendered by an immigration judge” and includes orders of
removal proceedings. Immigration courts operate within the
removal, grants of relief (e.g., asylum), voluntary departure
Department of Justice’s Executive Office for Immigration
(respondents voluntarily leaving the United States at their
Review (EOIR). During proceedings, immigration judges
own expense), and proceeding terminations.
(IJs) determine whether noncitizens (i.e., respondents) are
removable (deportable), and if so, whether they are eligible
for protection or relief from removal, such as asylum.
Removal proceedings may involve multiple hearings.

Respondents who fail to appear for any of their hearings
From FY2011 to FY2020, about 38% (401,042) of all ICC
may be ordered removed in absentia (i.e., in the
decisions (1.06 million) were in absentia removal orders
respondent’s absence) by an IJ.
(averaging about 36% annually), indicating 62% of
respondents appeared for their hearings during this period.
The rate at which respondents fail to appear for their
Using EOIR’s ICC method, the annual in absentia rate
hearings has been a key measure that some have cited to
generally increased during this period, ranging from a low
support policy positions and legal decisions related to
of 24% in FY2012 to a high of 46% in FY2019 (Figure 1).
mandatory detention, border security, and asylum. Yet the
Figure 1. In Absentia Removal Orders, Initial Case
method for measuring the in absentia rate has been debated,
Completions, and In Absentia Rates, FY2011-FY2020
and there is wide variation in the rates cited by elected
officials and reported in the media. This In Focus explains
the legal requirements for in absentia removal orders, how
EOIR calculates in absentia rates, how to interpret those
rates, and an alternative method for calculating in absentia
rates that some argue measures the rate more
comprehensively by accounting for a large and growing
number of pending cases. It also presents data on in
absentia removal orders for asylum seekers.
In Absentia Removal Orders in the Law
Section 240(b)(5) of the Immigration and Nationality Act
requires that any respondent who has received written
notice of a hearing and does not attend it must be ordered
removed in absentia. DHS must present “clear,
unequivocal, and convincing evidence” that the notice was

Source: CRS analysis of data for removal, deportation, and exclusion
provided, and that the respondent is removable. The
(I-862) cases provided by EOIR on July 13, 2021.
removal order may be rescinded if a respondent files a
Note: Excludes detained cases. In absentia removal orders are
motion to reopen proceedings and demonstrates that their
uncommon for individuals in detention—DHS is responsible for
failure to appear occurred because
ensuring that respondents in its custody appear at al hearings.
 the respondent faced “exceptional circumstances” (e.g.,
Note that this rate does not account for
serious illness or death of an immediate family

member),

respondents who have appeared for hearings but whose

cases have not yet been completed, including those that
the respondent did not receive proper notice of the
are pending in the growing backlog of immigration
hearing, or

cases (1.3 million cases as of March 31, 2021);
the respondent was in federal or state custody and
 those whose cases have been administratively closed,
unable to appear through no fault of their own.
or moved to an inactive pending docket (305,698 cases
In Absentia Rate: Initial Case
as of March 31, 2021), while the respondent pursues an
Completions Only Method
application with another agency, such as U.S.
Citizenship and Immigration Services, or so that the IJ
EOIR publishes in absentia rates in its annual Statistics
may clear low-priority cases from their docket to
Yearbooks and on its Workload and Adjudication Statistics
adjudicate higher-priority cases (e.g., respondents
website. EOIR calculates the in absentia rate by dividing
the number of in absentia removal orders issued in a fiscal
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At What Rate Do Noncitizens Appear for Their Removal Hearings? Measuring In Absentia Removal Order Rates
convicted or crimes or who pose a national security
Notes: Total completions include ICCs and subsequent case
completions: “any dispositive decisions by an immigration judge after
risk); or
an ICC.” Includes removal, deportation, and exclusion (I-862) and
 outcomes from subsequent case completions for
asylum- and withholding-only (I-863) detained and non-detained
respondents ordered removed in absentia who were
cases. Removal cases are by far the most common case type.
granted motions to reopen.
Figure 2 illustrates the widening gap between the number
In Absentia Rate: All Matters Method
of case completions and the number of pending cases over
Some observers claim that the ICC method overstates the in
the past decade. In FY2011, case completions and pending
absentia rate. An alternative method, all matters (AM), was
cases were almost equivalent. By contrast, at the end of
proposed in a 2020 University of Pennsylvania Law Review
FY2020 there were 231,659 case completions compared
article (“Measuring in Absentia Removal in Immigration
with more than 1.2 million pending cases.
Court,” by Ingrid Eagly and Steven Shafer, vol. 168 no. 4).
Some observers argue that the ICC method is more reliable
The authors contend that EOIR’s ICC method fails to
than the AM method because the latter cannot account for
account for the substantial number of respondents whose
the rate at which respondents whose cases are currently
cases are in the pending case backlog or are
pending may fail to appear for future hearings. In addition,
administratively closed. For example, an individual whose
because individuals whose cases are administratively closed
case is pending and who appears for all pre-decision
are not expected to appear in court, they contend that
hearings would not be accounted for by the ICC method.
including those cases artificially lowers the in absentia rate.
The AM method calculates the in absentia rate as a
Asylum Applicants
proportion of all pending and completed cases, including
“other” completions (e.g., administrative closures):
Some policymakers are interested in in absentia removals
among just asylum seekers. From FY2011 to FY2020,
among all 401,042 in absentia orders issued, 43,215, or
11%, were issued to asylum applicants (Figure 3)

Using data from FY2008 to FY2018, the authors found that
Figure 3. In Absentia Removal Orders: Asylum
the AM method yielded a lower average annual in absentia
Applicants and Non-asylum, FY2011-FY2020
rate among non-detained respondents (5%) than the ICC
method (34%). The total in absentia rate over the 11-year
period using the AM method was 17%, compared with 34%
using the ICC method. The ICC method indicates that 66%
of respondents with initial case completions attended their
hearings over that period. In contrast, the AM approach
indicates that 83% of respondents with initial case
completions, pending cases, and administratively closed
cases attended their hearings. The study also found that
15% of in absentia orders issued over that period were later
rescinded after the cases were reopened.
The AM method has been supported by some advocates,
who state that because far more cases are pending than

Source: EOIR, Workload and Adjudication Statistics, “Asylum
completed in recent years (Figure 2), the ICC method
Applicant In Absentia Removal Orders,” and unpublished data
distorts the true in absentia rate and fails to account for
provided to CRS on July 13, 2021.
court appearances by individuals with pending cases.
Notes: Figure includes data for removal, deportation, and exclusion
Figure 2. Cases Pending and Completed, FY2011-
(I-862) cases; excludes detained cases. EOIR’s data for the total
FY2020
universe of asylum decisions includes both I-862 and I-863 (asylum-
and withholding-only) case types; therefore, CRS has not produced
an in absentia rate for asylum seekers because the numerator (I-862
only cases) and denominator (I-862 and I-863 cases) for the rate
would be incongruent.
For more information about immigration courts and
removal proceedings, see the following:
 CRS In Focus IF11690, Pending Cases in U.S.
Immigration Courts, FY2008-FY2020
 CRS In Focus IF11536, Formal Removal Proceedings:
An Introduction
 CRS Infographic IG10022, Immigration Court

Proceedings: Process and Data
Source: EOIR, Workload and Adjudication Statistics, “Pending
Cases, New Cases, and Total Completions.”
Holly Straut-Eppsteiner, Analyst in Immigration Policy
https://crsreports.congress.gov

At What Rate Do Noncitizens Appear for Their Removal Hearings? Measuring In Absentia Removal Order Rates

IF11892

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