Posted on January 24, 2019

Skipping Court

Mark Metcalf, Center on Immigration Studies, January 24, 2019

U.S. immigration courts recently released their numbers to Congress for fiscal year 2017. Hoped-for improvements are largely absent and problems that have defined the courts since their beginning persist. Most persistent of all is the failure of aliens to appear for their trials. These no-shows remain high, with 43 percent of all those free before trial — 41,302 aliens out of 95,342 — disappearing from court in 2017.1 More to the point, these numbers add up.

Failures to Appear in Court


Immigration trial courts issued three times more deportation orders for failure to appear in court than deportation orders for cases that were actually tried (993,593 ÷ 324,402) over the last 22 fiscal years. (See Figure 1.) On average, more than 45,000 people each year disappeared from court since 1996, making failures to appear the single greatest source of deportation orders in the immigration court system.6

In any other court system, such dysfunction would cry for redress. Only in U.S. immigration courts can litigants literally abandon their cases without fear of incarceration or removal, while litigants in nearly any other state or federal court risk arrest, contempt, and new charges for the same conduct. Federal law — 18 U.S.C. § 3146 — imposes penalties from one year all the way to 15 years or more for absconding from a U.S. district court or circuit court of appeals. Not so in federal immigration courts.7 Rarely, if at all, are aliens held accountable for the same misconduct that in other court systems would land them — or citizens — in jail and in some instances brand them felons.

Even more rarely are those who abscond from court ever found much less removed. A 2006 Department of Homeland Security Inspector General report summarized this perennial problem:

Historical trends indicate that 62 percent of the aliens released [from detention] will eventually be issued final orders of removal by the U.S. Department of Justice Executive Office for Immigration Review (EOIR) and later fail to surrender for removal or abscond. … [I]t is unlikely that many of the released aliens will ever be removed.8

Contrast this dynamic with accused felons in state court who abscond (i.e., those who jump bail or commit escape) while free pending trial. According to the Bureau of Justice Statistics, 70 percent of these absconders are returned to custody within a year of their disappearance.9 But not so in immigration courts. The greatest number of fugitive aliens re-arrested in one year — 34,155 — occurred in 2008, leading to a record 6 percent reduction in a population numbering 557,762 at the time.10

Indeed, those who dodged court in 2017 did so with identically the same frequency under Donald Trump as they did in 2015 when Barack Obama sat in the Oval Office.11 {snip}

Never in 22 years of reporting has EOIR (i.e., Executive Office for Immigration Review, the Justice Department agency that manages the courts) squared with Congress and given an accurate description of failures to appear.13 Since 1996, it has dramatically understated FTA rates in its annual reports. In 2017, EOIR stated the FTA rate for all cases was 28 percent, never mentioning this number includes aliens whose trials occurred in detention facilities. In other words, EOIR calculates the FTA rate — or what it now calls the for all cases rate — by including those who could not evade court. Yet over the last 22 years, court records show not even one deportation verdict for failure to appear was handed down in a detention facility. (See Figure 3.)

[Click on the graphic to enlarge it.]


The truth is something else. When accurate accounting is used, failure to appear rates in some years doubled the rates EOIR declared to Congress.15 EOIR stated the FTA rate was 19 percent in 2007, when the real number was 36 percent. In 2008, the courts stated that the FTA rate was 16 percent. Instead, it was 34 percent. In 2009, EOIR proudly declared failures to appear came in at 11 percent and noted it was the lowest number in five years. The real number was 26 percent.16 From 2010 to 2014, the same dynamic is present: actual FTA rates significantly exceeded those EOIR reported to Congress. (See Figure 4.)

EOIR’s misleading failure to appear rates leave Congress and the public ignorant of both dysfunction in the courtroom and risks that too often end badly.17 One fact stands out above all the rest: Aliens flee court in greater numbers now than they did before September 11, 2001.18 From 1996 through 2000, 34 percent of all aliens free before trial — 251,309 out of 730,453 — disappeared. After 9/11, these numbers climbed. From 2002 through 2017, 39 percent — 699,641 people out of 1,808,449 — failed to keep their court dates.19 On either side of 9/11, EOIR never provided candid numbers to alert policy-makers to this problem. (See Figure 5.)

Instead, EOIR’s reports to Congress showed average FTA rates of 21 percent each year in the five years leading up to 9/11 and an average FTA rate of 22 percent each year following 9/11. On average, EOIR under-reported FTAs by a factor of 162 percent from 1996 through 2000 and a factor of 186 percent from 2002 through 2017. (See Figure 6.)


Most importantly, EOIR should acknowledge error. Only aliens who intentionally fail to appear for court can receive in absentia orders of removal, not those who were sick or whose bus broke down.20 EOIR should either remove detained aliens from calculations of failure to appear rates or explain its inclusion of detained aliens in a rate termed for all cases whose chief attributes are lazy math and false impressions of how many aliens skip court. There is more to this dynamic, though.

EOIR’s use of labels — overall failure to appear rate, in absentia order rate, and now its new for all cases rate — wrongly characterizes all aliens as potential absconders when the problem is limited solely to one group: aliens free before trial. These labels have impaired understanding of court evasion and have insidiously promoted stereotypes regarding the foreign-born. The many multiple opportunities for the courts to provide Congress and the public with critical analysis of this problem have been ignored at oversight hearings and in annual reports throughout the courts’ 36-year history.


In short, EOIR’s yearly tabulations on this point are a pretense of candid audit and ignore those standards the National Research Council recommends for all federal agencies that report statistics,22 chief among them the principle that “An agency should make every effort to provide accurate and credible statistics that will permit policy debates to be concerned about policy, not about the credibility of the data.”23 Simply put, EOIR’s accounting invites doubt and distracts from discussions that seek solutions.


Unaccompanied Minors

An unaccompanied minor is formally known as an “unaccompanied alien child” (UAC), a technical term defined by federal law as a child who “(A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom — (i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.” The frequency with which UACs miss court is only now being reported by EOIR and the numbers tell a further story of disorder and a more troubling one for children whose whereabouts may never be known.27 This metric is long overdue.

From 2013 through 2017, 46 percent of these children disappeared before court. In raw numbers, 22,149 children out of 48,543 never made their court dates, meaning the person or agency with custody of the child ignored their summons (better known as a Notice to Appear or NTA). Over this time, FTAs increased each year with 49 percent missing court in 2017.28 The likelihood that many — just like the adults who evade court — will never be found also increases with each passing day.29


The challenges facing America’s immigration courts are significant. Balancing liberty and order has never been easy regardless of the forums in which cases are tried. Balancing these sometimes opposing concepts is made more difficult by government reporting that intentionally misses the mark and leaves policymakers and, more importantly, the American public, less able to make informed decisions about these courts, spending priorities affecting them, and the enforcement imperatives that follow their rulings. It is not immigration that has failed America, but the American government that has often failed immigration.