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

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. Statutory 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 discretion-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 preferences 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.

How the Trump Administration’s Quota Policy Transformed Immigration Judging

“…Unwarranted delays and delayed decision making do not" (Benner 2018;Sessions 2017). In addition to their efficiency, in absentia removal orders are more likely than other outcomes to be protected from being overturned on appeal since direct appeals of the orders are not permitted and a very narrow set of criteria must be met for immigration judges to rescind the orders (Boyd et al 2023;Eagly and Shafer 2020;Koh 2017). Given the combination of their efficiency benefits and their greater protection from reversal on appeal, we expect that immigration judges will increase their rate of in absentia removal orders (especially those whose previous behavior was at odds with the Trump administration's preferences).…”