Report of in absentia removal orders of unaccompanied children ring true in a system not functioning fairly.

Sunday, March 8th, 2015
By: Jonathan MontagJ.D.

The Los Angeles Times reported on March 6 in an article, “7,000 immigrant children ordered deported without going to court,” that, well, 7,000 immigrant children were ordered deported without going to court. The article attributes this this to “notices sometimes arrived late, at the wrong address or not at all. In some cases, children were ordered to appear in a court near where they were initially detained, rather than where they were living.”

My experiences with the handling of asylum seekers’ cases is that it is quite understandable that large numbers will end up not getting notice of court dates, missing their hearings, and being ordered removed in absentia, in their absence.

At the outset, one should understand the in absentia removal rules that apply in the immigration court. When a person misses court in a criminal matter, a warrant for arrest may be issued, but the case is held in abeyance and if and when the person eventually shows up, the case gets back on track. In the immigration context, the law is much less forgiving. The Immigration and Nationality Act states at INA § 240(b)(5)(A), that if a person fails to appear at an immigration court hearing and the government shows that the person is not authorized to be in the United States and had notice of the hearing, then he shall be ordered removed. The order can be rescinded under two circumstances – at any time if the person did not get notice of the hearing, INA § 240(b)(C)(ii), or within 180 days of the order if there are exceptional circumstances – like serious illness to the alien or serious illness or death of a close family member. INA § 240(b)(5)(C)(i). Losing the notice, misunderstanding the date or time, not being given the mail about the hearing by someone in the household, being stuck in traffic, missing a flight, getting lost, going to the wrong court, or simply forgetting about a date months in the future are ordinarily not considered exceptional circumstances. So missing court can mean your goose is cooked. The law does not consider whether you have an extremely meritorious claim for asylum, if you had notice and missed court, you may well be a goner.

I have handled many in absentia removal cases over the years, trying to rescind the removal order. In one case, a 16 year old’s mother withheld notice of a hearing for her son. She swore that it was her fault, but because the law considered her notice as adequate notice to her son, the immigration judge would not reopen the case. In another case, Immigration and Customs Enforcement (ICE) released an asylum seeker from detention in San Diego. He flew to be with members of his extended family half way across the country. He provided ICE with the address where he would be living and was told he would receive a hearing notice at that address. The immigration court mailed him a hearing notice on a Friday that reached him on Monday afternoon of the next week for a hearing in San Diego, not at his new home city 1,500 miles away, on Wednesday, two days later. Even if the man had the money to fly back to San Diego at the last minute, he could not book a flight on Tuesday to get him to San Diego on Wednesday. He was ordered removed in absentia. It took filing two motions to reopen before an immigration judge would reopen the case – showing the impossibility of returning to San Diego after receiving unconscionable short notice did not initially merit reopening according to the immigration judge.

The normal process, defined by regulation, is that when an alien comes to the border seeking asylum, he is detained and interviewed and an initial judgment is made as to whether there is a credible asylum claim. INA § 235(b). Those that pass the interview are then sent to immigration court for a more detailed consideration of an asylum claim. They are then eligible to be released from government custody, though release is not automatic. Adults and adults with children are considered for release by ICE. Unaccompanied children are supposed to be handed over to officials of the Office of Refugee Resettlement of the Department of Health and Human Services who are supposed to evaluate their asylum claims and also whether they are victims of abuse, abandonment, or neglect, and find them a place to live while their cases are decided.

As the time the ICE process to decide on release varies as are the delays in scheduling an initial immigration court date, some aliens are released after their cases are underway in immigration court and others are released before an immigration court date has been set. Those whose next hearing has been scheduled before their release are duty-bound to attend the hearing regardless of where they will be moving to unless the court date is vacated or venue is changed. Those who do not already have a hearing scheduled are told that they will receive a hearing notice mailed to the address they give when they are released. At that point, there is usually no case pending with the immigration court and no information as to what immigration court the case will be scheduled at – where the person is detained or where he is moving to after release – and no information as to how to contact the immigration court.

One more procedural nicety. When families appear at the border seeking asylum, if it is a mother and children appearing, quite often they will be released before the initial screening and told to await a hearing notice from the immigration court. In my experience, the vast majority of these people never get a hearing notice.  If it is a father, mother, and children coming to the border, the father is held in detention to undergo the screening and the mother and children are released. This results in the father being sent to immigration court while the mother and children are not.

The problem with the limbo for released women and children is that the specter of the case eventually being filed with the immigration court is always there. As people arriving to the United States with little more than the shirts on their backs and usually after some harrowing journey and then having to find relatives or friends or friends of relatives or friends to house them, they inevitably become itinerants (How long would you house a distant relative or a friend of a friend from the old country?). Without any knowledge of immigration law or procedures and without any information as to how to contact ICE or the immigration court about changing an address, the person’s actually receiving a hearing notice becomes less and less likely over time. And remember, even if one contacted an immigration court to give an address update, until ICE files the case with the immigration court, the immigration court will have no idea who the alien is and will not accept change-of-address information.

Why does ICE wait for a long period or never to file the papers to send an arriving alien to immigration court? Why are aliens released with so little information about changing address and court contact information? Why aren’t cases filed with the immigration court where the alien is moving to instead of where he was initially detained?

A cynic may conclude the reasons are:

1. If filing the case in immigration court and then the immigration court’s setting a hearing notice are delayed, the chances of an in absentia order are greatly increased. Then ICE can simply scoop up the individual and family and get rid of them. Removal numbers go up and the administrative costs of conducting a court hearing and appeals go down. Plus, the removed family, when back at home, can discuss a system of such monumental confusion and irrationality that anyone they talk to will know better than to even attempt to come to the United States and seek asylum.

2. An asylum applicant must file his application within one year of arrival. INA § 208(a)(2)(B). If the asylum seeker is told to wait for a hearing notice that never comes, he or she may not figure out that he or she has to file an asylum application elsewhere and then figure out where and how. If no application is filed, if the alien ever does find himself in immigration court, potential relief from removal is severely limited, making removal a more likely outcome, again boosting removal numbers and reducing bureaucratic effort for ICE.

The following reforms are needed:

  1. ICE should release fathers with mothers and children.
  2. ICE should give families the option of release or being held together. People released before being granted asylum rarely get government assistance or even permission to work and if there is no family or friends to assist for a long period of time, the family will have no means of support.
  3. When people are released from detention, their cases should promptly be scheduled where they are moving to. Persons leaving detention should always know where their next court will be, and, if possible, when.
  4.  Notices of a new hearing should always provide the newly-released alien with ample time to reach his new home and find his way to a new immigration court in a new city.
  5. Court contact information and address-change information should always be provided to an alien when he is released, both for those whose cases are already scheduled in the immigration court, where address and change of address information, but not a telephone number, are provided, and for those whose cases are not scheduled for immigration court yet.
  6. Asylum seekers should be told about the one-year filing deadline and how to file with USCIS if their case is not scheduled in immigration court (though not scheduling cases promptly in immigration court should not happen).
  7.  If ICE or Customs and Border Protection (CBP) prepares court documents and serves them on an alien, they should expire if not filed within a reasonable period of time after they are served. The specter of ICE’s or CBP’s filing documents at any time in the distant future should not hover over an individual, particularly when he lacks information about how to change his address with ICE or CBP.
  8. Immigration courts should be mandated to continue cases where an alien fails to appear at immigration court when the case deals with a released asylum seeker where confusion or administrative complexity or impossibility, but not necessarily lack of notice or exceptional circumstances, led to the failure to appear.

Newly-arriving asylum seekers are probably the least adept of all people at navigating the bureaucratic labyrinth that is the immigration system because of language, cultural, psychological, and educational deficits. Administrators need to add clear signposts within the labyrinth so aliens can get through it. We should not countenance a system where the labyrinth routinely leads to dead ends that result in removal before the asylum-seeker even gets his day in court. Posted March 8, 2015.


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