A Misrepresentation Wrapped in a Misunderstanding about Immigration Adjudication

Prof. Geoffrey Hoffman, Oct. 27, 2020

"The President during the debate last week said immigrants by and large do not "show up" to immigration court hearings after being released from detention.  Not only do the statistics contradict this made-up "1 percent" figure, but the misrepresentation is revealing. It encapsulates a jaundiced view of American justice, as well as a cynical and bankrupt view of the rule of law writ large. It is important to unpack the layers of misunderstanding that this made-up figure represents. It reveals what the President and many others do not understand about immigration adjudication, generally, and about available avenues for relief from deportation, more specifically.

First, the statistic quoted by the President:  the fabled 1 percent who allegedly "stupidly" show up after being released from detention under so-called "catch and release."  A good source of immigration statistics is Syracuse University's excellent TRAC reports. Those reports are widely available and very detailed.  One report from 2016 had this to say about the rates of attendance:  "In general, in absentia rates for individuals released as a result of bond decisions made by immigration judges also were down from levels of ten or more years ago. In absentia rates for individuals released after their custody hearings peaked at 47 percent during FY 2002 and have generally fallen since then despite the increasing percentage of detained individuals  being released on bond by judges." See https://trac.syr.edu/immigration/reports/438/  In 2015-2016, for example, the statistic for those who did not attend their hearings, according to TRAC, hovered around 15 percent, not the "99 percent" who miss their hearings falsely touted by the President during the debate.

According to the government's more recent data, which can be found on the publicly available Department of Justice's website, at  https://www.justice.gov/eoir/page/file/1243496/download, the number of those who did not attend their hearings after being released from detention increased just modestly over the past 4 years: from 9,759 who were deported "in absentia" in 2016 to 15,794 in 2019 (the latest figure available). While the government's numbers do show a jump in "in absentia" orders generally, in 2019, that figure did not relate to those who were released from detention after a bond hearing, but rather related to  judges issuing "in absentia" orders to people under the Trump-created Migrant Protection Protocols (MPP) program. Of course "in absentia" orders increased in 2019 if people are forced to await their hearings outside the U.S. where many have no fixed address and therefore cannot be found after being forcibly returned to Mexico to await their court dates.  In any event, those people were not "released from detention after a bond hearing" and therefore could not have been subject to the President's bogus "catch and release" statistic.

Other studies have found that for family members released from custody that they attended all their hearing in about 86% of cases, during the 15 years studied. The percentage was slightly lower for nonfamilies, at 81%. See https://www.californialawreview.org/print/4-detaining-families/. One group, those families seeking asylum, in particular had a very high rate of attending their court hearings -"family members seeking asylum who were released from detention attended their hearings in 96% of cases that began in family detention since 2001."  Id.

Additionally, advocates attribute the rate of "in absentia" orders not to the fault of immigrants in many cases, but to the practices of the Department of Homeland Security or DHS in not placing the time and place of the hearing on the Notices to Appear (NTA), the charging document issued by DHS. That document must be filed with the Executive Office for Immigration Review or EOIR to confer jurisdiction on the immigration courts.  Once it is filed, then EOIR sends its own Notice of Hearing, sometimes years and years later, containing the all-important time and place of hearing.

Given this unfair and widely criticized bifurcated practice, many immigrants have moved, or in some cases the hearing notices are missing key information so immigrants never receive them.  The U.S. Supreme Court has already found that a notice to appear is deficient if it is missing the time and place and does not meet the proper definition of such a notice in the Immigration and Nationality Act. See the 2018 case of Pereira v. Sessions, 138 S. Ct. 2105 (2018). The Supreme Court will soon be considering the so-called "two-step" process of notifying immigrants in a case recently granted certiorari. See Niz-Chavez v. Barr, https://www.scotusblog.com/case-files/cases/niz-chavez-v-barr/.

Even considering the President's own administration's figures in an August 2018 report<https://www.dhs.gov/publication/2014-southwest-border-encounters-three-year-cohort-outcomes-analysis> by the Department of Homeland Security, it stated that 52 percent of the 479,000 people apprehended by the U.S. Border Patrol for crossing the border illegally in 2014 were returned to their home countries within three days.  Therefore, by the government's own admission, the rate of return without a hearing at all was approximately 50 percent. It does not make any sense therefore that purportedly 99 percent of those who were actually granted the right to a hearing and allowed to stay in the U.S. after successfully navigating a bond hearing would not show up when specifically granted the right to do so.

On a deeper level and more than a mere misrepresentation of statistics, the President blatantly ridiculed immigrants who "show up" to their hearings and characterized them as "stupid."  Such a cringeworthy moment should send shockwaves through anyone who values the rule of law.  It should never be "stupid" to seek relief, to try to avail oneself of the laws which should protect asylum seekers and others who have legitimate avenues for relief to stay in the U.S.  The admission by the President is a tacit indictment of the system itself. It says, in effect, that everyone should be aware that the system is rigged against them and if they do show up they deserve what happens to them.  There are, in appropriate cases, several ways to seek relief, and no one should ever be ridiculed for availing themselves of the legal process.

The assumption that only dumb people pay taxes, serve in the military, attend court hearings should be repudiated.  Such a bankrupt worldview assumes that we live in a rigged, corrupt country.  The President's assumption tells us all we need to know about his view of the American polity. It reveals nothing about the integrity of immigrant families."

Prof. Hoffman is Clinical Professor and Director of the UHLC Immigration Clinic.