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I'd like to focus my question on the implemention of a deportion order and a failure to comply.

(Context: Trump initially ordered ICE to "round up" persons who have either defied a court-ordered deportation (presumably with no available appeal to the order), or who have willfully refused to appear for a court ordered deportation hearing.)

What I don't understand is what happens that allows a person, who has been court ordered to be deported, the ability to ignore that order. Why aren't such persons taken into custody immediately by ICE (or what ever appropriate agency) and removed.

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Why aren't such persons taken into custody immediately by ICE (or what ever appropriate agency) and removed.

One obvious way in which this could happen is that immigration hearings may be conducted in absentia (see 8 CFR 1003.26). In such cases, the person who is the subject of the order will generally not be immediately available to be taken into custody.

Another less obvious way is that people who have been ordered removed from the US may be released from custody after 90 days under 8 USC 1231(a)(3),

If the alien does not leave or is not removed within the removal period, the alien, pending removal, shall be subject to supervision under regulations prescribed by the Attorney General.

"Removal period" is defined as 90 days at 8 USC 1231(a)(1)(a). The regulations governing supervised release are at 8 CFR 241.4.

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  • in absentia - that makes sense as the alien is not present to be taken into custody (are these the millions that Trump referenced?). OTOH, if the alien is present why wouldn't he be taken into custody and placed on the next available ICE Airways flight? BTW, are deportees expected to purchase their own airfare? – BobE Jun 24 '19 at 19:50
  • @BobE I don't know about the millions that were referenced, but I suspect that is hyperbole. According to trac.syr.edu/phptools/immigration/court_backlog/…, there have been just under 2.5 million removal orders issued in the 20 year period from 1999 to 2018, some of which will have been overturned while most others will already have been removed (at a rate of well over 200k per year in fiscal 2015 through FY 2017). – phoog Jun 24 '19 at 20:21
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    @BobE People who are subject to an order of removal may seek voluntary departure, in which case they arrange their own transportation out of the country; otherwise, as I understand it, the government will usually fly them in groups on a chartered plane. I suspect that it costs the government far more to deport these people than it would to give them work permits and let them stay and pay taxes. – phoog Jun 24 '19 at 20:22
  • "If the alien is present why wouldn't he be taken into custody and placed on the next available ICE Airways flight?": because the deportation order is not necessarily final. The subject of the order may appeal it to the Board of Immigration Appeals or to the Article III courts, or he or she may apply for withholding of removal under 8 USC 1231(b)(3)(A). – phoog Jun 24 '19 at 20:27
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    @BobE I doubt there are millions of outstanding final deportation orders (especially since for this question we should only consider those final orders that apply to people who are not in immigration detention), but I do not know where to find the actual number. I've seen a number between 2000 and 3000 for the number of "family members" who would be affected, but I don't know what "family members" means in this context -- family members of whom? – phoog Jun 25 '19 at 1:44

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