Asylum Seekers Ordered Deported in Absentia

 Posted on September 20, 2017 in Immigration

In 2014, the United States experienced a surge of immigrants from Central and South America appearing seemingly en masse at its southern border. Many were deported upon encountering Customs & Border Patrol (CBP), but many were able to assert a claim of credible fear—they stated their intent to apply for asylum in the United States.

Due to the immigration backlog in U.S. courts, many of these cases are just now coming up for review. However, a large portion of the asylum seekers have not appeared, and have been ordered removed in absentia.

While it may seem smart to not appear in court lest you be arrested, it is absolutely not the right choice to make. Failing to appear can actually make matters even worse for you.

The Normal Asylum Process

In a standard defensive asylum case (which is what most asylum seekers mount, as opposed to an affirmative asylum request where one turns oneself in to CBP), the applicant appears before an immigration judge with all the relevant information and pleads his or her case, usually alone, sometimes with an attorney (since immigration cases are administrative in nature, rather than criminal, the government is not required to furnish an attorney for the applicant). If his or her application for asylum is approved, then he or she is granted lawful permanent resident status, with his or her green card appearing in the mail later on.

If the immigration judge rules against the asylum seeker and there is no other form of relief from removal available—for example, Deferred Action for Childhood Arrivals (DACA), or relief under the Convention Against Torture (CAT), among others—the asylum seeker will be ordered removed. However, the ruling may be appealed. Historically, asylum seekers have been permitted to live in the community while their applications are pending, even getting permission to apply for work authorization in rare cases.

There are three more levels to which one can appeal—the Board of Immigration Appeals (BIA), and if unsuccessful there, the appropriate Federal Court of Appeals for your circuit may hear your case. Some immigration cases do reach the Supreme Court, but these are very rare.

The Pitfalls

The process to obtain asylum has been much the same since its modifications after World War II. Certain patterns are somewhat traditional, and have grown to be ‘normal’ to those in the system. However, given the current administration’s binge of deportations and policy changes, as well as the districts to which asylum cases are being assigned, more and more potential asylees are choosing not to appear for their hearings.

There are multiple reasons for this—fear of immediate arrest if their claim is denied (something Immigration & Customs Enforcement has denied doing), confusion over the hearing’s time and place, or simply being discouraged by attorneys in their locale who know the judge and the court they may face.

To be sure, some U.S. districts are notoriously harsh and dispassionate with regard to claims that do not fit the letter of the law—for example, in Charlotte, NC, the three immigration judges there posted grant rates in FY 2016 of 15.8 percent, 18.4 percent, and 28.4 percent. All these figures are well below the national average grant rate of 59 percent. (Chicago’s rate is marginally higher, at around 45 percent.)

However, choosing not to show up means that an asylum applicant will be ordered removed in absentia, and while there is a substantial backlog of removal orders which must be executed by ICE, absentia orders can jump the proverbial queue because the person in question is an unknown quantity—and ICE no longer prioritizes violent criminals. It is official policy now that anyone “in violation of the immigration laws” may be arrested and deported, regardless of extenuating circumstances.

Seek Experienced Help

This can be a frightening time to be an immigrant of any status in the United States. However, you do have rights, and it can make an enormous difference to have a knowledgeable attorney on your side to help you exercise them. The passionate asylum attorneys at Mevorah & Giglio Law Offices are experienced in these types of cases, and will work hard to give you the fair day in court that you deserve. Call us today to set up a free consultation.

Sources:

http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog_avgdays.php

http://trac.syr.edu/immigration/reports/448/