RAICES Bulletin: Board of Immigration Appeals Mandates In Absentia Removal Orders for Children
TL;DR The Board of Immigration Appeals (BIA) has ruled that Immigration Judges (IJ) must issue in absentia removal orders for children who miss court hearings. This decision is consistent with part of a broader strategy to accelerate the removal of individuals under the age of 18, and creates a more precarious legal landscape for non-citizen children.
WHAT TO KNOW
Issue: Whether an IJ can administratively close the removal proceedings of minor children who fail to appear for their hearings, or if the IJ must instead enter an in absentia removal order. The BIA specifically addressed whether children can be held responsible for a parent’s failure to bring them to court.
Rationale: The BIA held that IJs lack discretion to administratively close cases when a respondent fails to appear, irrespective of age, provided notice and removability are established. Furthermore, the BIA rejected the argument that removing children in absentia violates due process, noting that the law contains no exception for children and that legally responsible adults (parents) bear the burden of ensuring a child’s appearance.
RAICES Impact: Insofar as this policy may result in more in absentia orders, there may be an increase in cases where a motion to reopen is among the services sought from RAICES. Practitioners should monitor trends with regard to IJ decisions on such motions where an in absentia order was issued against a child.
Community Impact: Families and children in removal proceedings face an increased likelihood of receiving a final removal order if they miss a court date for any reason. This increases the importance of making sure that information such as a family or minor’s mailing address is up to date with the Executive Office of Immigration Review (EOIR) so that families and children receive any notices with important court dates. This also means families need to be proactive in resolving scheduling conflicts that might prevent attending court.
Related Legal Battles: Broader legal battles are likely to focus on the deprivation of due process that may result from this practice, when considered in the context of other harmful policies. For example, the chilling effect policies leading ICE arrests at Immigration Courts may bear upon a broader analysis of due process.
Broader Immigration Strategy: Recent reporting also highlights efforts to expedite immigration removal proceedings of children without ensuring legal representation. When attending Immigration Court, there is now a higher risk of arrest by ICE. There is also a less forgiving approach to notice such that it is more difficult to challenge whether notice of a hearing was adequate. This all highlights how the administration is creating a precarious situation for non-citizens that increases the pressure to give up their fight for protection and will push more non-citizen children into the shadows.
