Immigration Court No-Shows Increase as Backlog Falls and Asylum Denials Rise

Last month, I reported based on preliminary figures that the backlog of pending cases in the immigration courts had fallen for the first time in 18 years, as the second Trump administration’s lockdown of the Southwest border slowed new cases added to immigration judges’ dockets to a trickle. The Executive Office for Immigration Review (EOIR) — the DOJ component that oversees the courts — has now updated the rest of its statistics, and they reveal that immigration court no-shows are up and asylum denials are, too. Expect these trends to continue, if not accelerate.

“In Absentia Removal Orders”

Aliens in removal proceedings before immigration judges are denominated “respondents”, and those respondents must appear at all their hearings or run the risk of being ordered removed from the United States in absentia.

There’s a big difference between being “ordered removed” (in absentia or at the end of proceedings) and actually being deported, of course, but removal orders are a “condition precedent”, in that ICE officers must secure one before they can deport an alien respondent.

In the first three quarters of FY 2025 (October 1, 2024, through the end of June), immigration judges issued more than 340,000 removal orders in cases that commenced with the filing of a Notice to Appear (“NTA”, the charging document in removal proceedings), and nearly 63.5 percent (216,000-plus) of those removal orders were issued in absentia, when respondents failed to appear.

There are other categories of cases that immigration judges hear (some pending cases pre-date Congress’s creation of removal proceedings in 1996), and overall, in the first nine months of FY 2025, they issued a total of 218,773 in absentia orders of removal, deportation, or exclusion.

That’s an average of more than 24,000 orders per month, almost 31 percent more than in FY 2024 and an all-time monthly average record for in absentia orders.

To put that latest figure into context, in FY 2019 — the last full fiscal year before the Covid-19 pandemic — immigration judges on average issued just over 7,600 removal orders to respondent no-shows per month — 31 percent as many as in FY 2025.

Of course, the backlog of pending cases at the end of FY 2019 (1.331 million) was just 35 percent as large as the current backlog (3.8 million), so you’d expect some increase.

But that doesn’t explain the 31 percent increase in final no-show removal orders compared to FY 2024, when the backlog was 2.3 percent larger than it was at the end of June.

Three factors have likely led to the jump in in absentia removal orders. The first and most obvious is that, given DHS’s focus on alien arrests, many respondents aren’t going to court because they’re concerned they won’t walk out again, except in handcuffs.

That was the key takeaway from one recent article out of New York City headlined “Arrests Nearly Halt at Immigration Court. One Reason: Fewer People Are Showing Up”.

A second, related factor is that many of the (millions) of aliens apprehended at the borders and the ports under Biden who were placed into proceedings and released into the country (in violation of detention mandates in the Immigration and Nationality Act, “INA”) came illegally not so much to seek asylum as to seek to live and work here for the years it took for their applications to be heard in immigration court.

Assuming many of those migrants Biden released ever intended to appear in immigration court at all.

A February report from the local NBC affiliate claimed that respondents in the Dallas immigration court were waiting “three to five years for their first day in court”, a claim echoed by the local CBS affiliate there in May.

Respondents can’t fail to appear until they are expected to appear, so expect the number of in absentia orders to climb as millions of Biden-era removal cases work their way through the immigration-court system.

A third factor is the possibility that the last administration wasn’t requiring immigration judges to order no-show respondents removed in absentia, as the law mandates.

Section 240(b)(5)(A) of the INA requires immigration judges to order aliens who received NTAs and hearing notices removed in absentia if they fail to appear and ICE can show they’re removable (which it almost always can), but anecdotally, I was told that didn’t always happen under the last administration.

Again, I don’t know whether that’s true or not (the current administration may want to check), but it would explain why the monthly average of in absentia removal orders was 45 percent lower in FY 2023 (13,359) than it is today, when the backlog was nearly three-quarters (73 percent) its current size.

Asylum Denials Rise

The EOIR statistics aren’t quite as transparent when it comes to immigration judge asylum grant rates, but they do clearly show that the number of asylum denials has skyrocketed under Trump II.

Through the end of the third quarter of FY 2025, immigration judges have denied nearly 59,000 asylum claims, 53 percent more denials in just nine months than in all of FY 2024 (just over 38,500) and on track to double last fiscal year’s asylum denial total.

Conversely, the number of asylum grants has declined. Through June 30, immigration judges in FY 2025 granted asylum fewer than 22,000 times and are on track to issue just over 28,200 asylum grants this fiscal year, compared to nearly 32,400 in FY 2024 (a more modest 13 percent decline).

In my estimation, asylum denials have risen disproportionately to the decline in grants under Trump II due to various Biden-era ICE policies that encouraged agency lawyers to not prosecute non-meritorious asylum cases that didn’t fit the last administration’s restrictive (non-enforcement) “priorities”. Let me explain.

An October 2024 House Judiciary Committee report revealed that “more than 700,000 illegal aliens … had their” immigration court “cases dismissed, terminated, or administratively closed” under the last administration.

That, the committee concluded, “allow[ed] those aliens to stay in the country indefinitely without facing immigration consequences” in what it termed a “quiet amnesty”.

Under the Biden non-prosecution policies, however, immigration judges couldn’t “dismiss, terminate, or administratively close” pending cases at ICE’s request unless respondents agreed, and respondents with valid and meritorious asylum claims were logically less inclined to go along.

Further, under the guise of “doing justice”, the Biden guidance also encouraged ICE attorneys to stipulate to issues favoring the alien in immigration court and to not appeal immigration judge decisions adverse to the government, which likely boosted the number of respondents who opted to ride their cases out instead of having them dismissed, terminated, or closed — as well as the total number of grants.

Attorney General Pam Bondi is the de jure “top judge” in immigration matters under section 103(a)(1) of the INA, and expect her to use her “certification” authority to craft brightline rules her immigration court subordinates will have to follow, which will lead to an even higher asylum denial rate.

Bet on the Trends to Continue, if Not Accelerate

President Biden’s border policies had any number of deleterious impacts, but few bore the burden like immigration judges did. Now that Trump has returned, immigration court backlogs are down, more aliens are skipping hearings, and asylum denials are on the rise. Bet on all three trends to continue, if not accelerate.