Immigration Court Evasions

By Mark Metcalf, June 12, 2014

Since 1996, America's immigration courts, part of the Department of Justice, have hidden high evasion rates through accounting tricks that, if used in private industry, would send a CPA to prison. Clever deception is found throughout the courts' annual reports to Congress. Better known as the Executive Office for Immigration Review Statistical Yearbook, it is a yearly masterpiece that in many instances blurs the reality of a court system not coming to grips with the dynamics of porous borders and feeble government responses to problems years in the making. Among the worst problems faced by immigration judges are aliens who fail to appear in court. By last count, some 863,000 people disappeared from proceedings over the last 17 years.1

So how have the courts hidden years of misses that amounted to nearly 900,000 failures to appear in court? How did they disguise this disorder? In plain terms, the courts diluted the numbers. They combined aliens in detention pending trial with aliens free pending trial. Since litigants in detention always made their court dates, while those free pending trial frequently missed theirs, evasion rates appeared much smaller than they actually were. Mixing different populations — the detained with the non-detained, apples with oranges — and reporting their dynamics as if they were the same group created the false impression that court evasion is fractional and casual when, in fact, it is both significant and standard. How the courts have historically calculated failure to appear rates has camouflaged this disorder. The following example is typical of the Courts' bookkeeping:

For FY 2002, the year following the 9/11 attacks, the courts told Congress the "overall failure to appear rate" was 25 percent. In real numbers, 45,052 people never appeared in court or at some point stopped attending. To get this percentage, the courts combined the 77,648 people in detention pending trial with the 100,000 people who were free pending trial. The courts added apples to oranges. Combining these two very different groups, the courts produced a hybrid total of 177,648 persons. Dividing the 45,052 people who evaded court by the combined total of 177,648 equals a 25 percent (45,052 ÷ 177,648 = 25 percent) evasion rate.2

Honest math directs a different equation. Dividing the 45,052 people who were free pending trial and failed to appear in court by the total of all persons free pending court — 100,000 altogether — reveals 45 percent of all persons free pending trial evaded court (45,052 ÷ 100,000 = 45 percent). This is an apples-to-apples comparison and accurately reflects a rate that measures evasion through those litigants who were outside detention. Ignoring this equation and opting for the former is how the courts minimized failures to appear and made their numbers look better in annual reports — even after 9/11.

Court records also reveal another dynamic that explains why their bookkeeping on evasion rates is deceptive: failures to appear in detained settings simply don't happen. Statistics for hearings held in detention facilities show there were no failures to appear in court.3 Still, for the last 17 years the courts used the phrase "overall failure to appear rate" or a variant and have always included in their reports numbers that combined aliens free pending trial with those detained pending trial and in turn drove down evasion rates.

In the five years following 9/11, 50.4 percent of all non-detained aliens — people the United States permitted to remain free pending trial — never showed for court. In real numbers, 360,199 people out of 713,974 never came to court or, if they did, they soon vanished.4 In 2005 and 2006, when 59 percent of litigants free pending trial chose to skip court, the courts bleached their records — again by adding those in detention pending trial to those free pending trial — and told Congress that only 39 percent of litigants missed their hearings.5 This is the way the courts' have reported their business since 1996. Rather than a full accounting, the courts default to numbers that "improve" by manipulation, not by better performance or superior processes.

Mixing apples with oranges — combining aliens detained before trial with aliens free pending trial — drove evasion rates below 40 percent in 2005 and 2006.6 The courts continued using the deflective and empty term "overall failure to appear rate", when, in fact, the only group that could choose to miss court was that group free before trial. Those detained before trial missed court because of transportation failures or illness. Their misses resulted in new hearing dates being scheduled, while those who fled their hearings received deportation orders.7 None of this has ever been made clear in annual reports to Congress. Contrived numbers from the one agency of the federal government charged with adjudicating immigrant claims has continued unabated and neither lawmakers nor the public has been made the wiser.

The goal of immigration done right is diminished by courts that have not squared with the American public. More precisely, court executives — who have sanitized yearly reports to Congress and standardized dysfunction — have failed, and America's entire immigration structure struggles with their deceit.

What can hasten, if not assure, America's decline, is what the federal government repeatedly tells us about important national dynamics that simply isn't true. Scrutiny shows immigration statistics are not immune to sleights of hand that tell a distinctly different story than honest numbers actually reveal. And without accurate numbers, it becomes impossible to get our bearings on any policy issue. A research arm of the government — the National Research Council — gets it right and lays down the standard that America's immigration courts ignore:

Statistics that are publicly available from government agencies are essential for a nation to advance the economic well-being and quality of life of its people. ... [T]he operation of a democratic system of government depends on the unhindered flow of statistical information that citizens can use to assess government actions.8

The immigration courts' yearly reports cannot be trusted to consistently provide accurate and precise metrics on critical dynamics of court business. Rather, accuracy, credibility, relevance, and timeliness elude this agency and the flow of believable statistics to the public — a flow the courts not only control, but author — is more than hindered. Their reports fail the narrow purpose of describing the courts to lawmakers and the broader one of informing the public. The story of America's immigration courts is hidden beneath inaccuracies that blur a compelling story of national purpose and the disappointing one that demands change.

End Notes

1 Of the 2,244,675 aliens the United States permitted to remain free pending trial from 1996 through 2012, 38 percent — 863,603 — evaded court. Composites for five-year periods may be found in each year book. EOIR 2000 Year Book, pp. L1-L2, Figures 15-17 and p. T1, Figure 23; EOIR 2004 Year Book, pp. H1-H4, Figures 10-12, and p. O1, Figure 20; EOIR 2008Year Book, pp. H1-H4, Figures 10-12, and p. O1, Figure 23; EOIR 2009 Year Book, pp. H1-H4, Figures10-12, and p. O1, Figure 23; EOIR 2012 Year Book, pp. H1-H4, Figures10-12, and p. O1, Figure 23.

2 See EOIR 2002 Year Book, pp. H1-H4, Figures 10-12, and p. O1, Figure 20. These narratives and graphs reveal the method used to recount the courts' work and also reveal how failures to appear are minimized by breaking down evasions between those litigants who were arrested and then released and those litigants who were never arrested, all of whom evaded court. Never do the courts simply provide to Congress an evasion percentage that accurately reflects this dynamic. See Figure 10 on p. H-1, in particular, with its heading "Overall Failure to Appear Rate".

3 See EOIR 2002 Year Book, p. O1, Figure 20. This section is entitled "Immigration Courts: Proceedings Completed for Detained Cases". There are no narratives and no graphs related any failure of detained litigants to miss court for any reason.

4 Between 2002 and 2006, 360,199 out of 713,974 non-detained aliens failed to keep their court dates, a total of 50.4 percent. See EOIR 2006 Year Book, pp. H1-H4, Figures 10-12, and p. O1, Figure 20.

5 See EOIR 2008 Year Book, pp. H1- H4, Figures 10-12, and p. O1, Figure 23. Using the five-year composite in the 2008 Year Book shows EOIR repeated its earlier finding that 39 percent of aliens failed to appear in court 2005. In fact, 59 percent were no-shows. In 2006, EOIR once more reported 39 percent of aliens made no court appearance. The real number was again 59 percent.

6 Ibid.

7 EOIR 2007 Year Book, p. H2, Figures 10-12. In 2007, the courts stated "Failures to appear for detained cases occur infrequently, generally only because of illness or transportation problems, and are not broken out in the following figures." In other words, litigants seldom miss and their misses are statistically insignificant. Court practice, statute, and regulation require judges in non-detained courtrooms to order removed those who fail to appear for their hearings. Court practice also acknowledges that those in detained settings have no control over transportation failures or health conditions. Their misses are handled through rescheduling hearings — not removal orders.

8 Margaret E. Martin, Miron L Straf, and Constance F. Citro, eds., Principles and Practices for A Federal Statistical Agency, 3rd ed., National Academies Press, 2005, p.3.