Jake Tapper, CNN: “Well, most of them do show up to their hearings.”
Pence: “Ninety percent of the people never show up for their hearing in the months ahead. ... The overwhelming majority, plus-90 percent, don’t show up.”
— Exchange on CNN’s “State of the Union,” June 23, 2019
As the Trump administration calls for tighter immigration laws, officials from the president on down claim almost all migrants are gaming the system because they fail to show up for court.
The nation’s nearly 400 immigration judges are under a mountain of backlogged cases, and hundreds of thousands of Central Americans continue to arrive at the border each year. Because of a lack of holding capacity and a court settlement requiring the release of children, U.S. immigration authorities allow many migrant families into the country while they wait for hearings.
On CBS, Pence claimed that “the vast majority” never show up. On CNN, he said the rate of no-shows was “plus-90 percent.”
The rate of no-shows is far below 90 percent, according to the Department of Justice’s most recent annual figures. When using the Justice Department’s preferred metric, 44 percent of migrants who were not in custody failed to show up for their court proceedings.
That’s half the rate Pence claimed. And some researchers say that the Justice Department numbers don’t tell the whole story and that the real rate is less than 44 percent.
A migrant either attends a court hearing or doesn’t attend. It’s a yes-or-no question that lends itself to simple math. Yet the numbers vary widely.
Because immigration court records are secret, the government’s statistics are difficult to verify. Some of them measure a subset of immigration cases and tell one story. Some numbers crunched by researchers tell another story. The picture can be blurry because an immigration case may involve several hearings over more than one year.
We reviewed statistics from the Justice Department (which runs the immigration courts), the Department of Homeland Security (which oversees the border) and independent researchers analyzing court records.
The Justice Department reports no-show statistics based on “initial case completions,” a metric that doesn’t count some migrants who show up for court but have their cases postponed or who don’t get a resolution. Completed cases sometimes are reopened and result in different outcomes.
Pence’s claim distorts what acting Homeland Security secretary Kevin McAleenan told the Senate Judiciary Committee in a June 11 hearing. The panel chairman, Sen. Lindsey O. Graham (R-S.C.), asked “what percentage of the people show up for the asylum hearing?”
“So, it depends on the demographic, the court, but we do see too many cases where people are not showing up,” McAleenan said. “We did an expedited pilot with family units this year with ICE [U.S. Immigration and Customs Enforcement] and the immigration courts. Out of those 7,000 cases, 90 [percent] received final orders of removal in absentia, 90 percent.”
He added, “That is a recent sample from families crossing the border.”
Notice how McAleenan framed his answer. The 90 percent rate he gave was based on a sample of 7,000 cases being fast-tracked through the immigration courts, not all cases.
A representative for Pence told us he “was referring to a pilot program launched under DHS,” the same one McAleenan brought up to the Senate Judiciary Committee.
But Pence did not hedge his comments as McAleenan did and instead indicated that 90 percent of all migrants never show up for court. When CNN anchor Jake Tapper challenged him, Pence dug in. “The overwhelming majority, plus-90 percent, don’t show up,” he said.
Graham’s question was about asylum hearings, not about all immigration cases. From fiscal 2013 through 2017, asylum applicants received deportation orders “in absentia” in 6 percent to 11 percent of cases per year, according to the most recent statistics yearbook from the Justice Department’s Executive Office for Immigration Review. The term “in absentia” is used when someone didn’t show up to court.
Let’s take a look at the different statistics measuring court appearance rates for migrants.
In September, the Justice Department began to prioritize immigration cases for family units “with the goal of completing these cases within a year of initiation,” a DHS official told us. This fast-track initiative is sometimes called the “rocket docket.”
“As of April 2019, out of approximately 7,700 total removal orders for rocket docket cases, over 6,700 were in absentia,” the DHS official told us. That’s 87 percent.
When Sen. Richard J. Durbin (D-Ill.) challenged these numbers at the June 11 hearing, McAleenan said, “I gave you the recent numbers of over 7,000 families that we put through a process to try to get court results more quickly: 90 percent of them did not show up for their hearings.”
McAleenan didn’t claim that this no-show rate of 90 percent applies broadly to all migrants. He was talking strictly about the rocket docket.
These figures come from the Justice Department, which reports court appearance rates on the basis of initial case completions, as we’ve noted. That measure will not count migrants who show up for court but whose hearings are postponed or whose cases remain pending.
“Early numbers from a ‘rocket docket’ is a really horrible place to get in absentia rates, since those who are fighting their cases have not had sufficient time to be resolved and rocket dockets tend to cause more in absentia orders,” Sarah Pierce, an analyst at the Migration Policy Institute, wrote in an email.
“Since the docket is brand-new, pretty much the only cases which had ended [as of April] were the ones where the person missed court, so that number ignored the huge number of pending cases where the family had appeared but the case was ongoing,” Aaron Reichlin-Melnick, an analyst at the American Immigration Council, wrote in an email.
“As we’ve seen, many migrants who claim asylum and are permitted into the U.S. often disappear before a judge decides the case in court,” the DHS official said. “This act directly undermines legal immigration procedures. We have and continue to take unprecedented action to ensure the integrity of the immigration process.”
The Executive Office for Immigration Review (EOIR) publishes yearly statistics detailing the number of migrants who were issued deportation orders after failing to show up for court. These numbers are based on initial case completions. Pierce said “these rates only count final decisions, not pending cases in which people are attending their hearings.”
“I usually try to use older FYs [fiscal years] to talk about in absentia rates, because for the older numbers there’s been more time for the slower-moving cases in which people are attending to resolve,” she added.
The EOIR statistics include four categories: “never detained,” “released,” “unaccompanied alien children” and “asylum.” They also include a total for all cases.
Judges ordered in absentia removals in 14 percent of all cases in fiscal 2013, a rate that grew to 28 percent in fiscal 2017.
An EOIR fact sheet from May highlights that 44 percent of non-detained migrants were ordered out of the country after missing their court dates. That means 56 percent, a majority, did show up.
When we previously asked EOIR about this, a spokeswoman for the office told us the asylum category includes some migrants who are in custody and thus are unable to skip their court dates.
Focusing on migrants who aren’t detained is a reasonable way to assess the data when trying to determine how many skip their hearings, though we note that the asylum category includes a mix of people who are both detained or released (there’s no breakdown in the EOIR yearbook).
The Justice Department for this fact-check highlighted other data points. Spokesman Alexei Woltornist said “only 13 out of every 100 credible fear claims are granted asylum” and sent us this flow chart. (That’s notable, but asylum grant rates don’t indicate how many migrants attend their court hearings.)
Back to the rocket docket. It’s a pilot program in 10 cities. Woltornist said the rate of in absentia deportation orders for family units had decreased to 82 percent as of June 14. An EOIR table shows that 56,286 cases had been opened on the rocket docket, 13,313 of them had been initially completed, and judges had issued 10,877 in absentia removal orders. (A footnote says that EOIR relies on DHS officials to identify family units and that these numbers don’t include all the families currently in immigration court proceedings nationwide.)
Researchers at the Transactional Records Access Clearinghouse (TRAC) at Syracuse University in a June 18 report found that 81 percent of migrant families attended all their court hearings, measuring from September through May.
“Thus, court records directly contradict the widely quoted claim that ’90 Percent of Recent Asylum Seekers Skipped Their Hearings,’” the report says, linking to an article about McAleenan’s testimony on June 11.
How is it possible that 81 percent of families attend all their hearings, when the Justice Department says the attendance rates are much lower? (And not just the Justice Department — an older data set from TRAC covering 2014 to 2018 shows that 49 percent of families attended their hearings.)
Susan B. Long, the co-director of TRAC and a managerial statistics professor at Syracuse University, said the difference is in counting all ongoing cases instead of only completed cases. “We didn’t remove anything,” she said. “It’s exactly how the data is recorded.”
Of 46,743 families, 85.5 percent attended their initial hearing and 81 percent attended all their hearings, according to TRAC. “Most have had only one scheduled hearing,” Long said. For those families with legal representation, the attendance rate was 99.9 percent at the first hearing and 99 percent for all hearings, the TRAC report says.
Woltornist, the Justice Department spokesman, said, “I don’t know exactly where they got the numbers.” The TRAC report says researchers obtained records from the nation’s immigration courts by filing requests to EOIR under the Freedom of Information Act.
The Pinocchio Test
This game of telephone went badly awry.
McAleenan gave flawed statistics in response to Graham’s question. They were not about asylum hearings and they covered only those families with cases on the rocket docket. That’s a pilot program in 10 cities, so it doesn’t represent what’s happening nationwide.
The numbers McAleenan gave ran from September to April. A small share of the rocket docket cases had been completed in that period. Because of the way the Justice Department reports court appearance rates for migrants — based on completed cases — the numbers from McAleenan presented an inflated picture of how many skip their hearings. In absentia cases are closed right away; ongoing cases in which families initially show up for court are not factored into the statistics.
But this is a fact-check of the vice president, who went on national television and claimed “plus-90 percent” of migrants skip their court hearings. It’s a Four Pinocchio claim relying only on the Justice Department’s figures.
We noted flaws in McAleenan’s numbers, but he disclosed that he was talking about a pilot program limited to 7,000 cases. Pence did not make the same distinction on CBS or CNN. He spoke in terms of all immigration cases nationwide.
The Justice Department’s preferred metric shows that 44 percent of migrants who are not in custody miss their court hearings. That’s half the rate Pence claimed.
TRAC’s analysis shows that when counting court appearances instead of completed cases, and when counting all family units instead of only those on the rocket docket, the vast majority of migrant families attended their hearings from September through May.
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