Nearly all asylum-seekers show up for court, data shows

More than a decade of data show that asylum-seekers and other migrants facing immigration hearings appear in court at least 83 percent of the time, with some rates as high as 96 percent.

The report challenges what one expert called a "pernicious myth" that immigrants won't appear in court to claim asylum, or fight their deportation cases, unless they are held in the nation's detention facilities. The new data could help buttress a shift toward releasing most migrants caught up in legal proceedings, as the Biden administration considers how to reform the nation's bogged-down immigration courts.

A substantial number of those who missed hearings did not receive any notice or faced hardship in getting to court, the study shows.

In the report, titled "Measuring in Absentia Removals," two researchers compiled 11 years of government data drawing on nearly 2.8 million cases from the Executive Office for Immigration Review, a part of the Department of Justice that manages the immigration court system.

The data shows that 83 percent of "non-detained immigrants" with completed or pending removal cases attended all of their hearings. Among those who had an attorney, the rate was even higher, at 96 percent. 

In absentia, or in absence, simply means that a judge has ruled against an immigrant's case because they didn't show up for a court hearing, and the judge can order their removal. Before 1990, immigration judges had discretion over how to handle missed court appearances, the researchers wrote. However, the law was "amended to require immigration judges to order a noncitizen who missed even one court hearing deported," they said. 

"The empirical research presented in this report debunks the myth that immigrants don’t show up for court," said Ingrid Eagly, professor of Law at UCLA School of Law, and one of the report's authors. "Relying on the government’s own immigration court data, co-author Steven Shafer and I find that, since 2008, 83 percent of all immigrants in non-detained deportation cases have attended all of their court hearings. In addition, over the 11 years of our study, 96 percent individuals represented by an attorney attended all of their court hearings." 

They also found that around 15 percent of those ordered deported because they did not appear in court were able to successfully reopen their cases, and had their removal orders rescinded. In some years, as many as one-fifth of these cases were overturned by immigration judges.

"This crucial finding suggests that many individuals who fail to appear in court wanted to attend their hearings but never received notice or faced hardship in getting to court,"  wrote Eagly and Shafer.

"Today’s report verifies what those who have worked in the immigration court system already knew: immigrants overwhelmingly show up in court," said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council. "We hope that this data finally puts to rest a false narrative about immigrants’ appearance rates that past administrations used to justify restrictive and cruel immigration policies."  

He said that previous administrations spent years "funding immigration enforcement to address a small set of individuals who miss court" and argued the Biden administration has the "opportunity change course." Instead of detentions, the administration should  focus on "updating immigration court technology, providing better resources to orient immigrants, and working to ensure that all immigrants navigating our removal system are represented by counsel." 

"As Congress debates immigration reform, this report shows that it’s time to revisit harsh and punitive laws that require judges to enter deportation orders for a single missed hearing and which limit the ability of the government to appoint counsel," he said. 

Reichlin-Melnick said that some of those who missed their hearings were because of "institutional failures," noting that in some cases asylum seekers would receive two letters, one noting their court hearing a week after it was held, and the other ordering their deportation for missing that hearing. He said that the agency could update its technology, send out text messages, and find better ways to "orient" people to court procedures, or give them access to lawyers.

"The findings of this timely report confirm what many of us formerly on the immigration bench have known for years: represented asylum seekers appearing before fair, knowledgeable judges show up for virtually all of their immigration court hearings," said Paul Wickham Schmidt, a former immigration judge and board member for the Board of Immigration Appeals. "The findings refute one of the many ‘big lies’ and ‘bogus narratives’ promoted by the last administration to demean and dehumanize asylum seekers and wrongfully deprive them of their legal and constitutional rights," he said. He argued that the Trump administration had pursued "enforcement gimmicks" and said that a "white nationalist bias" has pushed down asylum rates from around 50 percent—which was "then far too low"— to 20 percent.

During the last presidential debate, Trump attacked Biden, saying that the future president had "no understanding of immigration, of the laws." 

The president, owing to his harsh rhetoric about immigrants as a throng of thieves, murderers and rapists, equated immigration courts to "catch and release," and called it a "disaster." 

"A murderer would come in. A rapist would come in. A very bad person would come in. We would take their name. We have to release them into our country. And then you say they come back," he said. "Less than 1% of the people come back," he claimed. "We have to send ICE out and Border Patrol out to find them. We would say, 'Come back in two years, three years. We’re going to give you a court case. You did Perry Mason. We’re going to give you a court case.' When you say they come back, they don’t come back, Joe." 

"They never come back. Only the really—I hate to say this, but those with the lowest IQ, they might come back, but there are very, very few," Trump claimed. 

"The findings stand in marked contrast to the bold and inconsistent claims" made Trump and members of his administration about "purportedly dismal court appearance rates," wrote Eagley and Shafer. "Policymakers have relied on these assertions about purported failures to appear to drive key decisions, including to expand reliance on immigration detention and to reduce access to asylum," they wrote, adding that appearance rates have also been "pivotal" to the debate about building a border wall, "which the Trump administration sought to justify by claiming that those who cross the southern border simply 'vanish' into the country and never come to court." 

"This report provides accurate information, based on independent analysis of government data, of the rate at which immigrants attend court. It sheds light on the concerted effort made by immigrants to comply with the law so as to increase transparency to policymakers and the public," they wrote. 

During the Trump administration, DHS created a series of programs and policies designed to keep asylum seekers from coming into the country, the most notorious is the Migration Protection Protocols, better known as the "Remain in Mexico" program, which forces asylum seekers to stay in northern Mexico while their cases move through the courts. 

As part of the announcement of MPP, then Homeland Security Secretary Kristjen Nielsen said that people "trying to game the system to get into our country illegally will no longer be able to disappear into the United States, where many skip their court dates."

"Instead, they will wait for an immigration court decision while they are in Mexico. ‘Catch and release’ will be replaced with ‘catch and return.’  In doing so, we will reduce illegal migration by removing one of the key incentives that encourages people from taking the dangerous journey to the United States in the first place," Nielsen claimed. "This will also allow us to focus more attention on those who are actually fleeing persecution."

U.S. Customs and Border Protection sent about 68,000 asylum seekers to Mexico as part of MPP based in part on this theory, including about 1,200 people who stayed in Nogales, Sonora through their MPP case was held at courts in El Paso, Texas. 

Eagly and Shafer found that using the government's method of evaluating decisions, the in absentia rate was as high as 34 percent, but by comparing the rate of completed cases, they found the in absentia rate was around 27 percent. And, comparing the cases closed because an immigrant did not appear against all matters, including every single hearing, they found that the in absentia rate was just 17 percent. 

EOIR's method presents what the researchers called "a limited picture of of the frequency of missed court appearances." 

Schmidt said the Biden administration should free EOIR from a "crippling bias" that has turned the agency into a "national disgrace." Schmidt sharply criticized the tenure of former Attorney General Jeff Sessions, calling him an "immigration hard-liner who purports to render quasi-judicial decisions" and that Sessions repeatedly tried to influence judges, and blamed the rise in undocumented immigration over the last several decades on asylum seekers and their lawyers, "which is of course, pure nonsense." 

Sessions biased judges, telling them that they were part of DHS's "enforcement mechanism," and their job was to make sure that asylum seekers "do not get in," Schmidt argued. 

"The Biden administration should pursue changes that would provide immigration judges greater independence and discretion and support the creation of an independent structure for the immigration courts," he said, calling on the president to create a "merit-based system" and avoid the mistakes of the Obama and Trump administration, which "skewed" the hiring of judges toward "government insiders and former prosecutors." 

The research also found that appearance rates "vary strongly" based on the court's location.

Reichlin-Melnick also said that the immigration court should be shifted out from under the Justice Department to "remove interference" and "docket reshuffling" which could case cases to "fall through the cracks and cause immigrants to miss court hearings." 

Schmidt said that under the Trump administration, judges were often blamed for a rising backlog—which rose to 1.2 million case during Trump's four years—and faced performance quotas that are really "deportation quotas." And, he said that under pressure, some judges would use in absentia decisions to clear cases quickly, because "there's no one to challenge them." 

And, by upping pressure on judges, this "actually helps the government support its own myth," he said.