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1 1 (August 5, 2021)

handle is hein.crs/goveegh0001 and id is 1 raw text is: I Ftesearch Service Info~ mrn~ th~ kgi~Jat~~ Job~de tin e I~1 4 August5, 2021 At What Rate Do Noncitizens Appear for Their Removal Hearings? Measuring In Absentia Removal Order Rates Noncitizens who are charged by the Department of Homeland Security (DHS) with immigration violations may have their cases adjudicated during immigration court removal proceedings. Immigration courts operate within the Department of Justice's Executive Office for Immigration Review (EOIR). During proceedings, immigration judges (Us) determine whether noncitizens (i.e., respondents) are removable (deportable), and if so, whether they are eligible for protection or relief fromremoval, such as asylum. Removal proceedings may involve multiple hearings. Respondents who failto appear for any of their hearings may be ordered removed in absentia (i.e., in the respondent's absence) by an IJ. The rate at which respondents failto appear for their hearings has been a key measure thatsome have cited to support policy positions andleg aldecisions related to mandatory detention, border security, and asylum. Yet the method for measuring the in absentia rate has been debated, and there is wide variation in the rates citedby elected officials and reportedin the media. This In Focus explains the legal requirements for in absentia removal orders, how EOIR calculates in absentia rates, how to interpret those rates, and an alternative method for calculating in absentia rates that some argue measures the rate more comprehensively by accounting for a large and growing number ofpending cases. It also presents data on in absentia remov alorders for asylumseekers. In Absentia Removal Orders in the Law Section 240(b)(5) of the Immigration and Nationality Act requires that any respondent who has received written notice of a hearing and does not attend it must be ordered removed in absentia. DHS must present clear, unequivocal, and convincing evidencethatthe notice was provided, and that the respondent is removable. The removal order may be rescindedif a respondent files a motion to reopen proceedings and demonstrates that their failure to appear occurred because * the respondent faced exceptional circumstances (e.g., serious illness ordeathofan immediate family member), * the respondent did not receive proper notice of the hearing, or * the respondent was in federal or state custody and unable to appear through no fault of their own. In Absentia Rate: Initial Case Completions Only Method EOIR publishes in absentia rates in its annual Statistics Yearbooks and on its Workload andAdjudication Statistics website. EOIR calculates the in absentia rate by dividing the number ofin absentia removalorders is sued in a fiscal yearby the totalnumber ofinitial case completions (ICCs) in that s ame year. An ICC is the first dispositive decision rendered by an immigration judge andincludes orders of removal, grants ofrelief (e.g., asylum), voluntary departure (respondents voluntarily leaving the United States at their own expense), andproceeding terminations. In absentia removal orders Rate = x 100 ICCs From FY2011 to FY2020, about 38% (401,042) of all ICC decisions (1.06million) were in absentia removal orders (averaging about36% annually), indicating 62% of respondents appeared for their hearings during this period. Using EOIR's ICC method, the annualin absentia rate generally increased during this period, ranging froma low of 24% in FY2012 to a high of 46% in FY2019 (Figure 1). Figure 1. In Absentia Removal Orders, Initial Case Completions, and In Absentia Rates, FY201 I -FY2020 In Absentia Removal Orders ICCs --In Absentia Rate 200,000 46% 50% 180,000 d 45% 160,400 40%' 140,000 35 120,000 24% 300 100,000 25% 80,000 20% 60,000 15% 40,000 10 20,000 5 Source: CRS analysis of data for removal, deportation, and exclusion (1-862) cases provided byEOIR on July 1 3,2021. Note: Excludes detained cases. In absentia removal orders are uncommon for individuals in detention-DHS is responsible for ensuring that respondents in its custody appearat all hearings. Note that this rate does not accountfor respondents who have appeared for hearings but whose cases havenotyet been completed, including those that are pending in the growing backlog of immigration cases(1.3million cases as ofMarch 31,2021); those whose cases have been administratively closed, or moved to an inactive pending docket (305,698 cases as of March 31, 2021), while the respondent pursues an application with another agency, such as U.S. Citizenship and Immigration Services, or so that theIJ may clear low-priority cases fromtheir docket to adjudicatehigher-priority cases (e.g., respondents https://crs reports.congress.gc S

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