Half-Million Aliens Skipped Immigration Court Under Biden

The Washington Times has reported that the backlog of cases pending before U.S. immigration courts declined for the first time in 17 years as the Trump administration continues to lock down the border. Here’s a fact I omitted in my assessment of that decline: More than a half-million aliens failed to appear at removal hearings during the last administration, even as Biden’s DHS tanked 700,000 other pending immigration court cases. Those 500,000-plus no-shows are a symptom of the Biden administration’s effort to deliberately break our immigration system, and it will now take years to get that system back on track.

How Immigration Court Is Supposed to Work

Congress established the rules that govern removal proceedings in the nation’s 71 immigration courts in section 240 of the Immigration and Nationality Act (INA).

Under the INA, those proceedings begin when DHS files a “Notice to Appear” (NTA) — a document similar to a statement of charges in a criminal matter — with the immigration court having jurisdiction over the alien.

The court then holds an “initial master calendar” hearing for the alien (deemed a “respondent” in those proceedings), which is akin to an arraignment in criminal court.

At the initial master calendar hearing, the immigration judge (IJ) explains the respondent’s rights and — assuming there are no continuances for the respondent to find counsel or for attorney preparation —the respondent is sworn and pleads to the allegations in the NTA.

Removability is rarely at issue in immigration court. Most respondents admit to the allegations in the NTA and concede they’re removable as charged, in order to get to the “relief” stage of the proceedings.

“Relief” is the term used in the immigration context to describe a status that an IJ can grant a removable alien — like asylum status or lawful permanent resident status through adjustment or cancellation of removal — that will allow the alien to remain in the United States.

The respondent’s eligibility for relief is determined by the IJ following a separate “merits” hearing.

If at the end of those proceedings the IJ finds the alien isn’t removable, the court will dismiss the case. If a removable alien fails to seek any relief, or the IJ denies an alien’s application for relief, the IJ will order the alien removed. If the IJ grants the respondent relief, the IJ will terminate the case.

In Absentia Removal Orders

There can be multiple continuances during this process. Master calendar hearings are often reset to allow the alien to find counsel, to file applications, and/or to obtain evidence. Most applications can be adjudicated after just one merits hearing, but sometimes they are continued for additional hearings.

If at any stage in that process the respondent receives notice of a hearing but fails to appear, and the evidence in the record shows that the alien is removable as charged, section 240(b)(5) of the INA requires the IJ to order the alien “removed in absentia”.

In a December 2024 report, the Government Accountability Office (GAO) concluded that more than one-third — 34 percent — of all aliens historically have failed to appear for their removal proceedings in immigration court. Most were ordered removed in absentia.

Which brings me to a chart published by the Executive Office for Immigration Review (EOIR), the DOJ component with jurisdiction over the immigration courts and the Board of Immigration Appeals (BIA), captioned “In Absentia Removal Orders”.

It contains statistics on the number of in absentia removal orders issued annually by IJs in removal proceedings back to FY 2015, my last year as an IJ, through the end of the first quarter of FY 2025 in December 2024.

It reveals that in the seven fiscal years between FY 2015 and FY 2021, IJs issued fewer than 350,000 orders of removal, combined, to aliens who failed to appear at removal hearings in immigration court.

Between FY 2022 — the first full fiscal year of the Biden administration — and the end of December 2024, however, IJs issued more than 507,000 in absentia removal orders — nearly 45 percent more in absentia orders of removal than in the seven years prior under Obama and Trump I, and in less than half the time.

In FY 2024 alone, nearly 223,000 aliens failed to appear in removal proceedings and were ordered removed in absentia.

Reasons for the Increase in No-Shows

There are a few key reasons why the number of in absentia removal orders jumped so precipitously under the last administration.

First, there were more IJs on the bench in FY 2024 than there were 10 years before. The IJ corps nearly tripled, from just over 250 judges in FY 2015 to 735 in FY 2024, meaning almost three times as many judges were hearing many more cases, which logically would result in more in absentia orders.

That said, the number of IJs increased by 66 percent between FY 2019, when just over 440 judges were on the bench, and FY 2024, and yet the number of removal orders those judges issued to aliens who failed to appear rose by more than 144 percent over that same period, from fewer than 91,500 in FY 2019 to nearly 223,000 in FY 2024.

In other words, the increase in IJ hiring doesn’t, by itself, explain why so many more aliens were failing to appear.

Rather, most of that increase in immigration court no-shows has to do with the aliens themselves, and the Biden administration’s refusal to detain the vast majority of them.

Under section 235(b) of the INA, CBP officers at the ports of entry and Border Patrol agents between the ports can subject aliens seeking admission without proper admission documents and migrants who entered illegally to expedited removal (ER).

Aliens in ER are not entitled to removal hearings before IJs. Unless those aliens claim a fear of harm if returned and are found to have a “credible fear” of removal, CBP officers and Border Patrol agents can simply order them removed and deport them.

Credible fear is a screening process Congress created to ensure aliens who come here illegally don’t abuse our generous asylum system when they are caught by making bogus or frivolous protection claims simply to remain in the United States.

If an alien in expedited removal is found to have a credible fear, or if CBP decides not to subject those aliens to ER, they are placed into removal proceedings under section 240 of the INA to seek relief.

Regardless, however, DHS is required by law to detain all of those aliens — the ones subject to ER and all of the others encountered by CBP at the borders and the ports and placed into removal proceedings, from the moment they’re encountered by CBP to the point they’re granted relief by IJs or alternatively are removed.

DHS under the Biden administration, however, largely ignored ER, instead concluding that every illegal migrant was an “asylum seeker”, and then released the vast majority of them — 88.5 percent by my conservative estimate — into the United States, most with an NTA to appear in immigration court.

It is axiomatic under immigration law that aliens who aren’t likely to merit relief are less likely to appear in court if they are released — which is why Congress required DHS to detain the ones encountered by CBP at the border and the ports.

By flooding the immigration courts with largely unscreened migrants, the Biden administration all-but ensured that the number of in absentia removal orders would climb. And yet, that 507,000-plus no-show figure is worse than it appears.

That’s because at the same time that the Biden administration was placing millions of illegal migrants into removal proceedings, it was also asking courts to terminate, dismiss, or close more than 700,000 other immigration-court cases, in what the House Judiciary Committee termed a “quiet amnesty”.

Few if any of those aliens were eligible for any relief either; if they were, they wouldn’t have allowed their cases to be terminated, dismissed, or closed.

Worse, anecdotally I have been told that more than a few of those cases involved illegal migrants who failed to appear at their initial master calendar hearing and yet had their cases dismissed anyway.

In other words, had the Biden administration not tanked their cases, an untold number of those 700,000-plus aliens would have properly at some point have been ordered removed in absentia, as well.

A Symptom of a Deliberately Broken System

As I recently explained, our immigration system works when it’s properly implemented and allowed to work. When an administration refuses to follow the rules Congress created to govern that system, however, as the last one did in any number of ways, it quickly breaks down.

The half-million-plus aliens who failed to appear in immigration court over the past four years are just one more inevitable result of the Biden administration’s refusal to comply with our immigration laws. They are a symptom of a deliberately broken system, one that will linger on the courts’ dockets for years to come.