Failure to Appear at Immigration Court

A recent story's headline asserts that there is a "skyrocketing number of 'no shows'" at immigration court hearings.

The story says that "[m]ore immigrants are not showing up for their mandatory immigration court hearings, allowing the government to order their immediate deportation." Not appearing at your immigration court hearing normally results in the immigration judge issuing an in absentia order of removal. However, this is not always the outcome of one missed hearing.

Most respondents (people in immigration court proceedings) are in removal proceedings. (It is possible to be in other types of proceedings such as asylum-only, withholding-only, rescission, deportation, exclusion, etc.).

In removal proceedings, "[a]ny delay in the respondent's appearance at master calendar or individual hearing may result in the respondent being ordered removed 'in absentia' (in the respondent's absence)." See Immigration Court Practice Manual 4.17, 8 C.F.R. § 1003.26(c).

At such an in absentia hearing, OPLA/OCC (aka the ICE attorney) must establish that the respondent: 1) is removable by "clear, unequivocal, and convincing evidence" and 2) was provided with "written notice of the time and place of proceedings and written notice of the consequences of failing to appear."

It is possible to reopen an "in absentia" order of removal, but preferably you never are ordered removed in absentia.

The uptick in people failing to appear to the removal hearings is not a surprise based on the increase in arrests at immigration courts and the overall more restrictive immigration policies. Speaking to an immigration lawyer is essential if you find yourself debating whether to show up at your immigration court hearing.