- Almost seven out of 10 orders issued by IJs in cases involving families in 10 courts between September 24, 2019, and January 24, 2020 — 36,115 — were in absentia removal orders, issued when the respondents failed to appear.
- Those respondents were likely economic migrants who had gamed the immigration laws to enter and remain in the United States.
- EOIR statistics back up an anecdote from the head of the immigration judges' union in testimony before Congress.
Recent testimony from the head of the immigration judges' (IJs') union, and statistics from the Executive Office for Immigration Review (EOIR), suggest that most family units (FMUs, that is, an adult entering illegally with a child) are not showing up for court once they are set free in the United States. Their failure to appear suggests that they simply gamed loopholes in our immigration laws to gain entry into this country, to live and work indefinitely.
In her written testimony on January 29, 2020, before the House Judiciary Committee's Subcommittee on Immigration and Citizenship on "The State of Judicial Independence and Due Process in U.S. Immigration Courts", IJ A. Ashley Tabaddor, president of the National Association of Immigration Judges, complained about the 700-case completion goal that is part of performance metrics EOIR had set for IJs in 2018, and about the difficulty that some IJs have in meeting that goal. (NB: I was a witness at that hearing, as well).
At the bottom of p. 4 of that testimony is an interesting passage:
Not only are these metrics unrealistic and ill-conceived, they have no sound basis in past productivity. EOIR management has steadfastly refused to explain how these metrics were determined, particularly how the 700 completions per judge per year is valid in light of the great variety of cases and dockets that judges carry across the country. For example, one judge completed more cases in the last three months than he did in the entire past fiscal year, all due to the switch of his docket from a complex detained docket to a non-detained "family unit" docket with multiple completions per single session. [Emphasis added.]
For anyone who has read my work on the immigration courts, the highlighted passage is counter-intuitive. As I explained in a July 2017 Backgrounder captioned "The Massive Increase in the Immigration Court Backlog, Its Causes and Solutions", one of the reasons for the backlogs in the courts was the surge of FMUs:
The number of families and unaccompanied alien children (UACs) entering the United States began to increase in FY 2014. EOIR responded by "prioritizing" certain "cases involving migrants who had recently crossed the Southwest border and whom DHS had placed into removal proceedings." This both swelled dockets and led to IJs being reassigned from already scheduled hearings. Those surge cases were also more complicated than cases involving single adult males, requiring more courtroom time (and continuances) per case. [Emphasis added.]
Further, I was an IJ in a detained court (like the one described by IJ Tabaddor), and I found that I was able to complete cases more quickly than my colleagues in non-detained courts for a variety of factors, not least of which was that the respondents were detained and wanted to get out as quickly as possible, and the government was paying for their detention (and detention space is limited), so the government attorneys wanted to get the cases completed in an expeditious manner as well.
Yes, some of the issues can be more complicated in a detained court (many detainees are criminals, and there were occasionally questions about whether specific crimes would render respondents removable), but again, both parties had a vested interest in getting those issues resolved quickly, as well. I would have stacked my completion numbers up against any IJ in the country — but it was not a contest.
So why would an IJ who was transferred from a detained docket to a "non-detained 'family unit' docket" have "multiple completions per single session"? The only logical reason is that the respondents in those non-detained FMU cases didn't show up for court, and the IJ could simply issue multiple orders of removal in absentia.
EOIR statistics back this conclusion up. Specifically, that component published statistics on FMU cases in 10 selected courts (Atlanta, Baltimore, Chicago, Denver, Houston, Los Angeles, Miami, New Orleans, New York City, and San Francisco). Two caveats: (1) I cannot tell you dispositively why EOIR selected those 10 courts, or whether those courts are reflective of the courts as a whole; and (2) the cases described as "family unit" cases were only those so designated by the Department of Homeland Security (DHS).
With respect to the first caveat, a June 2019 "Fact Check" by the Washington Post reported that EOIR had established a "rocket docket" for FMU cases as a pilot in 10 cities. The link in that article takes you to a Department of Justice "Page Not Found", but the 10 courts in question likely are the same 10 listed in the EOIR statistics. And, I will note that Houston (52,503), Miami (56,197 cases), Los Angeles (64,458 cases), San Francisco (69,415 cases), Chicago (41,302), and New York City (103,433 cases) have some of the largest immigration-court dockets in the country, while Atlanta (37,326), Baltimore (30,081), New Orleans (18,973), and Denver (11,776) are not far behind, meaning that these are not outlier courts.
As for the second caveat, while there may have been other FMU cases, these are the most significant as it relates to the crisis at the border, because DHS would have designated them as FMUs at the time they were apprehended there.
EOIR's figures are astounding. The component's figures look at FMU cases received and cases completed from September 24, 2019, to January 24, 2020. During that period, those 10 courts received 122,650 FMU cases, and completed 52,646. I will note that the two numbers do not necessarily correlate, as there would have been FMU cases that were received before September 24, 2019, that were completed during that period, and FMU cases received after September that have not yet been completed.
That said, of the 52,646 initial case completions during that six-month period from those 10 courts, 47,925 resulted in an order of removal — a 91 percent deportation rate. More significantly, however, 36,115 of those removal orders were in absentia — almost 68.6 percent of the total orders issued, and 75 percent of the total orders of removal. In other words, almost seven out of 10 FMUs for whom orders were issued failed to appear in court.
Only 3 percent of those cases resulted in the respondents being granted relief, while an additional 3 percent resulted in termination (for whatever reason). Almost all of those terminations (72 percent) were in Chicago, despite the fact that it has the fifth smallest docket of all the courts studied.
It is no wonder that the IJ whom IJ Tabaddor referenced had "multiple completions per session" — more likely than not, most of the FMU respondents never showed up.
In absentia removal orders were the subject of the June 2019 "Fact Check" by the Washington Post referenced above, which was issued in response to a claim by Vice President Mike Pence that: "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."
That article quotes "[r]esearchers at the Transactional Records Access Clearinghouse (TRAC) at Syracuse University" who "in a June 18 report found that 81 percent of migrant families attended all their court hearings, measuring from September through May." The Post asks the question that I would have:
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.
That, in turn, prompted a response from Justice Department spokesman Alexei Woltornist, who stated: "I don't know exactly where they got the numbers." WaPo explained that "The TRAC report says researchers obtained records from the nation's immigration courts by filing requests to EOIR under the Freedom of Information Act."
A January 10, 2020, post specifically had to do with in absentia cases and TRAC's claim that 98.7 percent of non-detained asylum seekers attended all of their asylum hearings. I knew that could not be correct, however, because according to EOIR, there were then 10,542 in absentia decisions in cases involving asylum applicants issued in FY 2019 (that number has subsequently been updated, as of January 23, 2020, to 10,573 cases, as reflected in the link above).
If those 10,573 in absentia orders reflected 1.3 percent of all asylum decisions (the other 98.7 percent of asylum applicants having appeared, as TRAC asserted), IJs would have had to have issued 813,308 asylum decisions in FY 2019. That was not correct, however, because EOIR reported that IJs issued "only" 92,905 asylum decisions in FY 2019.
Returning to IJ Tabaddor's testimony and EOIR's statistics on FMU appearance rates at the 10 courts in question, the logical conclusion that can be drawn from her statement is that EIOR's statistics are correct. The only way that an IJ is going to get "multiple completions" per immigration court session in FMU cases is if, as EOIR makes clear, almost 70 percent of the respondents in those cases never appeared for court.
It turns out that "the plural of anecdote is data," at least in this instance, and the data and the anecdote both support the same conclusion — a large number FMUs, who were supposedly coming to the United States seeking asylum, were really were just coming to the United States, economic migrants looking for a better standard of living.
There is nothing wrong with people looking for a better life generally, of course, but the problem in these cases are that (1) they put themselves and their children in danger by entering illegally to begin with; (2) they gave money to criminals and cartels to be smuggled into the United States; (3) they are swelling immigration court dockets with hearing dates they never attended, and likely never planned to attend; and (4) they make it harder for legitimate asylum seekers to get protection in a timely manner, which would allow those aliens to start a new life free from fear and protect their family members still abroad. Oh, and illegal entry is a crime.
Not to mention the deleterious effect that those FMUs had on limited Border Patrol resources (and by consequence, the national security) when they entered illegally. As the Homeland Security Advisory Council's bipartisan CBP Families and Children Care Panel stated in its April 16, 2019, "Final Emergency Interim Report":
There are countless examples of [U.S. Customs and Border Protection (CBP) agents' and officers'] valiant attempts to aid families and children who have entered our country illegally and still attempt to perform their law enforcement mission to protect our country. However, it is not humanly possible to do both. On any given day, CBP is at half strength or less "on the line" in places at the border, endangering themselves and the country. [Emphasis added.]
EOIR's statistics on the number of in absentia orders makes clear that tens of thousands of FMUs have gamed the loopholes in our immigration laws to enter and remain in the United States illegally. I am happy for the unnamed IJ who can issue in absentia orders all day long, but that is not helpful to legitimate asylum seekers, our system of justice, or legitimate asylum seekers, who must wait years for protection.