Congressional Constraint? The Review of In Absentia Immigration Removal Orders in Federal Circuit Courts

• Published date: 01 December 2023
• DOI: http://doi.org/10.1177/10659129231164947
• Author: Christina L. Boyd,Roberto F. Carlos,Margaret H. Taylor,Matthew E. Baker,Elise Blasingame
• Date: 01 December 2023
• Subject Matter: Articles

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Political Research Quarterly

2023, Vol. 76(4) 1674–1690

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DOI: 10.1177/10659129231164947

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Congressional Constraint? The Review of In

Absentia Immigration Removal Orders in

Federal Circuit Courts

Christina L. Boyd

1

, Roberto F. Carlos

2

, Margaret H. Taylor

3

, Matthew E. Baker

1

, and

Elise Blasingame

1

Abstract

Within the politically charged immigration system in the United States, Congress mandates the entry of in absentia

removal orders against immigrants who fail to appear for immigration court hearings. Statutor y guidance similarly

constrains the ability of appellate courts to overturn those in absentia orders. In this article, we examine how federal

circuit court judges make decisions in the review of in absentia orders when faced with discret ion-revoking congressional

statutory language pitted against a highly politicized area of law where policy preferences sit at the forefront of judges’

minds. Using an original dataset of U.S. Courts of Appeals cases decided from 2001 to 2020, we f‌ind that pro-immigrant

decisions are rare, as intended by the governing statute. We also f‌ind, however, that judicial policy preferen ces predict

the degree to which federal judges support the petitioning immigrant through statutory factors related to the adequacy of

government notice and the presence of exceptional circumstances to justify nonappearance.

Keywords

courts of appeals, immigration, Congress, president, judicial behavior, in absentia

Immigration in the United States is a hot button political

issue—more so today than perhaps ever before. Courts,

including immigration courts and federal appellate courts,

rest in the center of much of immigration politics today.

Immigration courts must decide whether immigrants the

government wants to deport are in fact entitled to remain

in the country. In their appellate role, federal judges are

tasked by Congress with reviewing immigration court

decisions—work that can pit the application of strict and

discretion-stripping statutory mandates against strong

judicial preferences in a highly politicized area of law.

The political battle around immigration law can be

potently observed through immigration in absentia re-

moval orders issued against noncitizens who do not ap-

pear for scheduled immigration court hearings. In

absentia removal orders are increasingly common in

immigration courts today, with more than 100,000 such

orders issued yearly in immigration courts in recent years.

In absentia orders are also controversial since they operate

in the shadows of the immigration court system (Koh

2017), imposing a severe sanction—a removal order—on

immigrants who have not received notice of their hearing

from the government, who had good reasons for

nonappearance, who otherwise should have another op-

portunity to press their case or seek relief from removal,

and/or who may have encountered signif‌icant government

failures in the enforcement of immigration law. Once

ordered removed in absentia, an immigrant faces an uphill

battle to reopen her immigration case that often results in

judicial review in the federal courts of appeals.

Unlike in many legal areas, guiding congressional

language is unequivocal on the issue of what should

happen to noncitizens who fail to appear for immigration

court removal hearings: immigrant nonappearance “shall”

result in the noncitizen being summarily ordered removed

from the United States via an in absentia removal order.

1

School of Public and International Affairs, University of Georgia, Athens,

GA, USA

2

University of Texas at Austin, Austin, TX, USA

3

Wake Forest University School of Law, Winston-Salem, NC, USA

Corresponding Author:

Christina L. Boyd, School of Public and International Affairs, University

of Georgia, 104 Baldwin Hall, 355 S. Jackson Street, Athens, GA 30602,

USA.

Email: cLboyd@uga.edu

Congress is similarly clear in its guidance over the rare

circumstances that in absentia removal orders can be

reopened on appeal. In other words, federal law purports

to remove judicial discretion over in absentia-related

immigration law decisions, including how they are re-

viewed in the federal appellate courts. But despite ap-

parent congressional intent to eliminate discretion, given

the heightened politicization of the issue, judicial pref-

erences are likely to be entangled with judicial decision

making in these cases.

Through the lens of in absentia removal orders, this

article seeks to provide empirical clarity into the important

issue of how federal appellate court judges make decisions

when faced with discretion-revoking congressional stat-

utory language pitted against a highly politicized area of

law. Prior work has helped us learn about immigration

court decisions in in absentia matters (e.g., Eagly and

Shafer 2020;Gomez 1993) and other immigration cases

(Asad 2019;Eagly and Shafer 2015,2020;Hamlin 2014;

Keith, Holmes, and Miller 2013;Kim and Semet 2020;

Miller, Keith, and Holmes 2015a,2015b;Palmer, Yale-

Loehr, and Cronin 2005;Ramji-Nogales, Schoenholtz,

and Schrag 2007), detailing with powerful empirical

evidence the disparities faced by immigrants within the

court system. Far outside of the in absentia context,

previous research has tackled decision making in the

federal courts of appeals in other immigration matters

(Gill, Kagan, and Marouf 2019;Hamlin 2014;Law 2010;

Law 2005;Palmer, Yale-Loehr, and Cronin 2005;Stobb

2019;Westerland 2009;Williams and Law 2012) and

beyond. However, much remains empirically unknown

when it comes to federal court judicial review of in ab-

sentia orders and, more broadly, judicial behavior when

unambiguous law and politics are in tension with one

another.

To conduct our study, we collect an original dataset

of federal circuit court cases decided from 2001–2020.

In each of these cases, the reviewing federal panel of

circuit judges must determine whether to rule in favor

of the immigrant’s position and reopen the immigra-

tion case following the entry of the in absentia order.

Our results indicate that pro-immigrant decisions are

rare, as intended by the governing statute. We also f‌ind

that statutory factors guide the judicial review of these

cases, but that guidance is more of a convenience than

a constraint. Circuit judges’likelihoods of f‌inding

problems with government notice or recognizing that

exceptional circumstances justify the immigrant’s

nonappearance are closely linked to whether doing so

matches the judges’policy preferences. When viewed

as a sum of its parts, this study helps to draw attention

to the politics of immigration adjudications, the fre-

quency and power of in absentia removal orders, the

stringency and constraining effect of congressional

mandates in this arena, and the dueling (and sometimes

interacting) effects of personal and congressional

politics on judicial behavior.

AQuickPrimer:In Absentia Removal

Orders

Each year, removal proceedings commence against thou-

sands of immigrants through federal immigration courts,

which are administrative tribunals housed within the De-

partment of Justice’s Executive Off‌ice for Immigration

Review (“EOIR”).

1

In 2018 alone, there were over 300,000

new immigration charges brought, with just under 200,000

immigration cases completed and nearly 800,000 additional

cases pending in that same year (EOIR Yearbook 2018).

Annual in absentia removal order rates for non-detained

immigrant respondents sit above 20% each year, with some

years near 50% (Congressional Research Service 2021).

Whyisthisratesohigh?Thesignif‌icant backlog of cases in

immigration court means that an immigrant who is not

detained by the government may wait well over a year for a

hearing on the merits of her case. During this time, she may

be required to appear in court multiple times. The dates of

these hearings are frequently changed, noncitizens in re-

moval proceedings—particularly recent arrivals—routinely

move, and the government may not always issue proper

notice of the date and time of a scheduled hearing. Nev-

ertheless, if at any time the immigrant fails to appear as

scheduled, she may be ordered removed from the United

States because of her absence, without the opportunity to

defend her case on the merits or raise grounds for relief such

as an asylum claim.

2

If an immigrant is ordered removed in absentia, federal

law offers a very narrow and uphill path toward reopening

the case for additional proceedings. The immigrant must

f‌ile a motion to reopen the case and rescind the in absentia

order with the case’s immigration judge. If the immi-

gration judge decides to reopen the case and rescind the in

absentia order, the case is returned to the docket. How-

ever, if the immigration judge denies the motion to reopen

the case, the immigrant can then f‌ile an appeal with the

Board of Immigration Appeals (“BIA”).

3

A BIA decision

aff‌irming the immigration judge’s denial of the motion to

reopen the case allows the immigrant to then initiate

judicial review by petitioning the U.S. circuit court of

appeals.

Statutory Constraint of Circuit Court In

Absentia Decisions

How do circuit courts tackle their important role in re-

viewing in absentia orders? There is good reason to

expect that congressional intentions regarding in absentia

orders, revealed through immigration legislation, will

Boyd et al. 1675