Biden admin warns ‘avalanche’ of migrants could go back in the system if SCOTUS rules against them

It’s quite the conundrum.

Under President Biden, illegal migrants have been allowed to overwhelm America’s cities and resources as they await a “to be determined” (TBD) court date, but if the Supreme Court rules they were not properly notified of their day to appear — which would clearly imply that the administration’s approach to immigration is critically flawed — an “avalanche” of border-jumpers who might otherwise have been deported would be dumped back into the system.

This is the “heads you lose, tails we win” argument that Charles McCloud, the attorney representing the government in a key upcoming immigration case that revolves around the use of immigration notices, made to Supreme Court justices on Monday.

Prior to being released into the interior of America, illegal migrants are given Notices to Appear (NTA) before an immigration court, Fox News Digital reports.

“However, sometimes those documents when issued do not include a court date and only say ‘TBD,'” the outlet explains. “A separate court date is later mailed to the illegal immigrant in those instances.”

Should the immigrant fail to turn up for that date, the judge can order he or she is to be deported “in absentia.”

The case before the Supreme Court “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,” according to Fox. “The case has been joined by two other illegal immigrants with similar situations.”

The two separate mailings do not count as proper notice as dictated by statute, attorneys for the illegal migrants argued.

Not only are the notices proper, countered McCloud, but the number of in absentia orders of removal has surged 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,” he told the justices during oral arguments. “So… that already substantial increase we have seen is going to turn into an avalanche.”

If lower court orders were allowed to stand by the Supreme Court, it wouldn’t be fair to the illegal immigrants who did make it to their hearings while others ditched the date in the hope that the order would be rescinded, McLoud argued.

“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 stated.

If there are consequences, attorneys for the illegal migrants said, they would be a “function of the government ignoring the text of the statute over many cases and many years.”

While more motions would result from a SCOTUS ruling in favor of the illegal migrants, said attorney Easha Anand, it is “unlikely” that there would be an “avalanche.”

“[F]or 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.

Nevertheless, the numbers are staggering.

“The U.S. is currently facing a massive immigration backlog which has been growing for years but has skyrocketed amid the recent migrant crisis,” according to Fox News Digital. “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.”

Melissa Fine


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