Did 98.7 Percent of Non-Detained Asylum Seekers Really Attend All of Their Asylum Hearings?

I am a little skeptical — because my son and I did the math

By Andrew R. Arthur on January 10, 2020

The Transactional Records Access Clearinghouse (TRAC) released a report this week captioned "Record Number of Asylum Cases in FY 2019". One statistic therein really stood out:

With rare exception, asylum seekers whose cases were decided in FY 2019 also showed up for every court hearing. This was true even though four out of five immigrants were not detained or had been previously released from ICE custody. In fact, among non-detained asylum seekers, 99 out of 100 (98.7%) attended all their court hearings. [Emphasis added.]

I am skeptical that this paragraph really means what it would appear to mean. With good reason.

First, examine the paragraph as a whole, including the last sentence (highlighted above). The class of aliens that is referenced is "asylum seekers whose cases were decided" — they are the ones who "showed up for every court hearing".

This can mean one of two things. The first is that every alien who applied for asylum (that is, who filed an asylum application, affirmative or defensive) is "an asylum seeker[] whose case [was] decided". In that scenario, a 98.7 percent appearance rate for non-detained asylum seekers is not only exceptional, but mind-blowing, at least from my 23 years of experience as an INS trial attorney, congressional staffer with oversight of immigration courts, and immigration judge.

The second interpretation, however, is that the class of "asylum seekers whose cases were decided" means every alien who filed an asylum application (affirmative or defensive), and received a decision on that asylum application from an immigration judge. In that context, a 98.7 percent appearance rate actually seems a little low, but not outside of the realm of possibility.

By way of background, here is what happens in immigration court, in a nutshell: Aliens appear at an initial master calendar hearing, which is like an arraignment in criminal court. The immigration judge (IJ) reads the charges (or attorney for the respondent waives the reading), explains the respondent's rights (unless counsel waives that, too), and the case is continued for counsel (if the respondent does not have one), or for pleadings (if the respondent or counsel wants more time to plead).

If pleadings were not taken on the charges of removability at the initial master calendar, they will be taken at the next one, or a subsequent hearing. The respondent will either concede the charges (which happens in most cases), or deny them. If the respondent denies removability, the IJ will take evidence to determine whether the respondent is removable as charged. That may require a hearing that is separate from the master calendar, but it may not.

If and when removability is established, the IJ will ask respondent or counsel whether the respondent wants to apply for relief from removal — that is, for some immigration benefit that will allow the respondent to remain in the United States, like asylum (a common relief application). If the respondent previously filed an application for asylum with U.S. Citizenship and Immigration Services (USCIS) (an "affirmative asylum application"), he or she will generally ask the IJ to consider that application, and possibly ask to "supplement" it, or even file a new one.

If the respondent has not applied for asylum with USCIS, but wants to apply for asylum before the IJ, the case will be continued for filing of a "defensive asylum application" (unless respondent or counsel has that application ready at the initial master calendar). The case is then reset for a merits hearing on the asylum application.

In an ideal world, the whole process would take two hearings: the initial master calendar hearing (with pleadings taken and applications submitted), and the merits hearing. That does happen, but even after the application is submitted, the case is often reset for either of the parties (respondent or the U.S. Immigration and Customs Enforcement (ICE) trial attorney) to submit additional evidence or line up witnesses, or because the IJ or one of the parties gets sick, or plans a vacation that is not scheduled at the time the merits hearing is set. Or, it snows or rains (a lot) and the court is closed. In those situations, the case will get reset to another merits hearing.

Eventually, though, assuming that the respondent shows up for all of the hearings (or the respondent's appearance is waived for any of those hearings) there is a final merits hearing on the asylum application. The IJ can either issue an oral decision granting or denying asylum at the end of that hearing (my preference), or reschedule to issue an oral decision on the asylum application at a later date, or the IJ can set the matter over for a written decision. In either of the latter two cases, the respondent's appearance may be waived, and if the IJ issues a written decision, the parties can either be called back for the IJ to serve the decision on them, or the decision can be mailed to the parties, with notice that they can appeal.

If, at any point in that process the respondent fails to appear, the IJ can issue an in absentia removal order. So, if an alien receives a positive credible fear determination from a USCIS asylum officer, and is referred over to removal proceedings to apply for asylum, but fails to appear at the initial master calendar hearing, the IJ should order the alien removed in absentia (assuming ICE can prove the alien received notice of the hearing) without issuing a decision on the asylum claim.

If the respondent files an asylum application, but fails to appear for a subsequent master calendar hearing, or fails to appear for the merits hearing, the IJ should order the respondent removed in absentia (again, assuming the respondent received notice), without deciding the asylum application.

If the respondent fails to appear for the issuance of the oral decision, or to receive the written decision, the IJ could order the respondent removed in absentia without deciding the merits of the asylum application, or could just go ahead and issue the decision. If the decision is oral, the IJ would send the respondent a short-form "minute order", basically just a one-page form that shows how the IJ decided, along with appeal forms. If the decision is in writing, the IJ would send the decision with the appeal forms.

With all of that in mind, let's go back to the TRAC report: "With rare exception, asylum seekers whose cases were decided in FY 2019 also showed up for every court hearing." In this context, decided how? With a decision on the merits of the "asylum seekers[']" asylum claims, or on whether they should be removed or not? My money is on the former.

If so, that almost guarantees that the alien would have appeared at all of the hearings through the IJ's final asylum decision (or had his or her appearance waived), because if the alien did not appear the alien would be ordered removed in absentia without the IJ ever issuing a decision on the alien's asylum application.

Why am I betting that way? Because according to statistics from the Executive Office for Immigration Review (EOIR, the Department of Justice component with jurisdiction over the immigration courts and the Board of Immigration Appeals), in FY 2019, there were 10,542 in absentia removal orders in cases involving asylum applicants.

Given this fact, the only way that 98.7 percent of all non-detained asylum seekers whose cases were decided had shown up for all of their hearings is if there were at least 810,923 asylum decisions issued in FY 2019 (assuming that my math is correct — I had my son check it, and 10,542 cases is 1.3 percent of 810,923). We know that is not correct, however, because again, according to EOIR, IJs only issued 92,905 asylum decisions in FY 2019.

It is especially not correct if we take TRAC at its word in that report, and IJs decided only 67,406 asylum cases in FY 2019. As an aside, it is unclear how why there is a discrepancy as to the number of IJ asylum decisions between TRAC and EOIR, but it is not as large as it seems, because TRAC left out a lot of cases.

Specifically, according to the TRAC report, 19,831 immigrants were granted asylum in FY 2019, while 46,735 had their asylum applications denied. That equals 66,566, not 67,406, but TRAC also includes unspecified "other relief" in its count of "asylum cases" — likely withholding of removal and protection under Article 3 of the Convention against Torture (which are similar protections). TRAC does not, however, include the number of aliens who filed for asylum but were ordered removed in absentia — a major point if you are talking about how many non-detained aliens showed up for their cases.

By way of comparison, according to EOIR, there were 18,813 grants and 45,352 denials of asylum by IJs in FY 2019, (a total of 64,165 decisions that were grants or denials), as well as 134 administrative closures and 28,606 asylum cases that were abandoned (likely in absentia orders after applications were filed), not adjudicated, "other", or withdrawn.

So, it is possible, if not likely, that 98.7 percent of all non-detained asylum seekers whose cases were decided in FY 2019 showed up for all of their court hearings. That statistic, however, is likely not as impressive as it sounds.