If the DHS believes someone should be deported, they usually issue a “Notice to Appear,” which is filed with the Immigration Court. The Immigration Court then schedules a hearing (sometimes 6 months or more later) where an Immigration Judge can decide whether the person should be deported or not. Sometimes there are good reasons to challenge deportation, but in many or most cases there are not. When chances of winning are slim, often the person decides they’d rather just leave instead of waiting in the United States with no right to work for up to a year or more while a judge decides what they already know – that they don’t have permission to stay in the United States. That often makes a lot of sense. If you have no reason to challenge your deportability, why delay the inevitable?
In these circumstances, when the immigrant leaves instead of going to court, it has never been clear what the judge is supposed to do with the pending immigration case. For example, in Kansas City, we have successfully gotten this type of case dismissed by filing a “motion to terminate” with proof that our client left. That is what the immigrant’s attorney tried to do in Matter of Sanchez-Herbert
26 I&N Dec. 43 (BIA 2012), and the Immigration Judge agreed to terminate the case. But for reasons unknown to us, the Department of Homeland Security filed an appeal, arguing that the judge should have ordered the immigrant deported anyway, even though she had already left. The Board of Immigration Appeals agreed.
There is a procedure where the courts can order someone removed in their absence, but that is usually done in the case of a fugitive who is trying to hide from the court’s jurisdiction by just not showing up. This kind of order, called an “in absentia” order of removal, makes the immigrant ineligible to come back to the United States for ten years, even if they hadn’t come here illegally in the first place (for example, if they came on a valid visa and it expired). This decision encourages bureaucracy of the worst kind. No neutral person thinking about how we should structure a reasonable and fair immigration policy would say that encouraging people to remain in the United States illegally without the ability to feed or house themselves just so they can attend a hearing before an Immigration Court system that even the Department of Justice admits
is mercilessly backlogged is a good idea.