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.