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Anti-immigrant advocates have repeated two popular myths over the last few years that have helped shape the debate over detention of noncitizens who’ve been placed in removal hearings. The first is that noncitizens fail to appear for their deportation hearings. Thus, the second myth goes, the government should detain those waiting on their hearings, regardless of why they are in proceedings, to ensure their appearance. Remember that removal proceedings are civil, not criminal. Detention in the immigration context can only be imposed if the noncitizen has been convicted of a particularly serious crime, known as an “aggravated felony”, poses a danger to person or property, or has been determined to be a flight risk. Also note that the majority of those in removal proceedings are there for violations of the immigration law, such as visa overstay or unlawful entry, and not for a criminal violation. Last, wait times for an initial hearing can stretch well past a year.

Research Shows Most Noncitizens Attend Their Deportation Hearings.

The American Immigration Council recently published a report compiling deportation hearing data received from the Executive Office for Immigration Review (EOIR), the division of the Department of Justice (DOJ) that conducts immigration court proceedings, using the Freedom of Information Act (FOIA). The report can be found at https://www.americanimmigrationcouncil.org/research/measuring-absentia-removal-immigration-court.

Key findings from the report included:

  • 83% of nondetained immigrants with completed or pending removal cases attended all their hearings from 2008 to 2018.
  • 96% of nondetained immigrants represented by a lawyer attended all of their hearings from 2008 to 2018.
  • 15% of all removal orders for failure to appear issued from 2008 to 2018 were successfully overturned. In some years, as many as 20% of all orders of removal for missing court were later overturned.
  • Individuals who applied for relief from removal have especially high rates of appearance.
  • Appearance rates varied strongly based on the immigration court’s location.
  • The Executive Office for Immigration Review’s method for measuring the rate at which immigrants fail to appear in court presents a limited picture of the frequency of missed court appearances.

Immigrants’ Attempts to Attend Hearings Also Indicate That Willful Absence Is a Misconception

Other data from the study found that factors such as the distance to the immigration court played a large role in appearance rate. The data gathered and analyzed in the report proves false the belief that the immigration court system is broken because noncitizens don’t show up to their hearings. Rather, the data shows that the vast majority of noncitizens in removal proceedings make a determined effort to attend their hearing in an attempt to comply with the law.

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Antonini & Cohen
Antonini & Cohen

At Antonini & Cohen, we have been providing energetic, effective and aggressive representation in all areas of American immigration law since 1991.

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