Biden admin warns 'avalanche' of deportations could be scuttled if SCOTUS rules against them in key case

The Biden administration warned Supreme Court justices on Monday that hundreds of thousands of deportation cases could be reset and sent back into the immigration system if the justices rules against the administration on a key case regarding the use of immigration notices.

The remarks came during oral arguments in a case related to Notices to Appear (NTA) — orders given to illegal immigrants before they are released into the interior to appear before an immigration court. However, sometimes those documents when issued do not include a court date and only say "TBD." A separate court date is later mailed to the illegal immigrant in those instances.

If the immigrant does not turn up for that hearing, they can be ordered deported "in absentia." The case focused initially on an El Salvadoran illegal immigrant who was given an NTA in 2005, and months later was mailed a court date, but says he didn’t receive it. The case has been joined by two other illegal immigrants with similar situations. 

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A group of migrants walks to a van as hundreds of migrants gather along the border in Lukeville, Arizona, on Dec. 5, 2023. (AP Photo/Ross D. Franklin)

The lawyers for the illegal immigrants represented argue that the two separate mailings do not count as proper notice as dictated by statute. Government lawyers argued that such practices do count as proper notice, and also warned that if the court ruled against them, then hundreds of thousands of people who received TBDs on their NTAs would be allowed to seek a review of their case. Charles McCloud, representing the government, said that numbers of in absentia orders of removal have risen sharply amid the recent border crisis, from 380 in 2021 to over 11,000 in 2023.

"We are very concerned that those hundreds of thousands of cases could be injected back into the immigration system," McCloud told the justices.

"So… that already substantial increase we have seen is going to turn into an avalanche."

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McCloud said if lower court orders were allowed to stand by the Supreme Court, it would be unfair to illegal immigrants who did show up to their hearings versus those who chose not to show up and hoped the order would be rescinded.

"And that disadvantages other non-citizens who did follow the rules, who complied and went to their removal proceedings, because those non-citizens could be removed at the end of their proceedings, but someone… who just decides ‘I don't want to show up’ has this in absentia order, but it could always be rescinded under the Ninth Circuit's rule," he said.

People camp as they wait to cross the border between Mexico and the U.S. in Ciudad Juarez, Mexico, on Dec. 27, 2023.  (Christian Torres/Anadolu via Getty Images)

The lawyer representing the illegal immigrants pushed back, arguing that any consequences would be a "function of the government ignoring the text of the statute over many cases and many years."

Lawyer Easha Anand also said that while there would be an increase in the number of such motions, she said the impact would be limited as the result would only be another hearing.

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"And so, you know, for many, many non-citizens who have no pathway to staying in the United States, it's very unlikely that they're going to come forward and file one of these motions to reopen because the best they get is another hearing," she said.

The suit is the latest immigration case to face the court, which has faced a plethora of cases related to illegal immigration and border security in recent years and will face more in 2024. The court will this year take up a dispute between Texas and the government over Texas’ construction of razor wire at the border, and whether federal officials can cut it.

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Meanwhile, the government has also sued Texas over its new anti-illegal immigration law, which allows state and local law enforcement to arrest illegal immigrants. Gov. Greg Abbott has pledged to fight the case to the Supreme Court, if necessary.

The U.S. is currently facing a massive immigration backlog which has been growing for years but has skyrocketed amid the recent migrant crisis. The immigration court backlog is now over 3 million and the number of illegal immigrants on the non-detained docket is now over 6 million.

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Meanwhile, there were 302,000 migrant encounters in December alone. Fox News reported on Monday that DHS Secretary Alejandro Mayorkas has admitted to Border Patrol agents that currently the rate of migrant releases into the interior is "above 85%" — although DHS officials have said they have removed more migrants since May than in all of FY 2019.

"We are doing everything we can, within a broken system, to incentivize noncitizens to use lawful pathways, to impose consequences on those who do not, and to reduce irregular migration," he said in Texas.