Trump Baits the Press on Asylum No-Shows

By Andrew R. Arthur on November 2, 2018

The first rule of being a lawyer is to never become emotionally involved in a case. A leading lawyer in my home state of Maryland once told me that she only takes cases for money, never to prove a point. It is time that the press learned this simple legal rule, because they have been baited by the president's statements on asylum no-shows.

I can remember a time when the New York Times used to exclusively publish news articles that reported on the events of the day. They may still do so, but apparently fact-checking has also become a staple of the Gray Lady, at least since Donald Trump became president. The latest is an article captioned "FACT CHECK OF THE DAY, Trump's Falsehood-Laden Speech on Immigration". That article contains the following:


"We're not letting them into our country. And then they never show up, almost, it's like a level of 3 percent. They never show up for the trial. So by the time their trial comes, they're gone, nobody knows where they are."


That piece then goes on to state:

In the 2017 fiscal year, about 28 percent of immigrants failed to attend their court hearings — not the 97 percent Mr. Trump estimated.

Among asylum seekers, only 11 percent did not show up for legal proceedings.

Let's break down the "facts" in that passage. Whether the "fact-checker" realized it or not, she admitted that in FY 2017, only 72 percent of "respondents" (the appropriate legal term for aliens in a removal proceeding) actually showed up for court.

(Please note that the foregoing parenthetical is not snarky, nor is not intended to be. Some aliens in removal proceedings are actually "non-immigrants", including students who may no longer be in status, and aliens who entered under an employment-based nonimmigrant visa. Many of those individuals are arguing that they are actually entitled to the status they hold. Then, there are the respondents in immigration court who claim that they are actually citizens or nationals of the United States. If true, such individuals of the opposite of "immigrants". Each of these points is an erroneous "fact" in a so-called "fact-checking" article. But I digress.)

I assume that the term "asylum seekers" in the article refers to aliens who have applied for asylum. With this assumption, the article admits that only 89 percent of asylum applicants actually show up to court. If the whole point of applying for asylum is to seek the permanent protection of the United States, one would assume, however, that the appearance rate across the board for such individuals would be 100 percent.

By way of analogy, imagine a contested court case in which you claimed that you were the actual owner of a winning lottery ticket. One would assume that you would appear at every hearing at which the issue was argued, if the alternative option was forfeiting your money.

Lest you consider this an "argumentum ad absurdum" (as we say in the law), the opposite is actually true. Most of us can live without winning the lottery, or having lottery winnings; the point of an asylum claim is that one cannot live (because of an immutable characteristic or a characteristic that the claimant should not be expected to change, like religion or political opinion) without the protection asylum affords. If anything, the analogy is an understatement of a valid asylum seeker's interest in appearing in court.

More importantly (and I would assume, inadvertently, so as not to cast aspersions on the author of that article), she fails to point out, as Attorney General Jeff Sessions stated in a speech in October 2017, that half of all aliens who passed credible-fear screenings "never even file an asylum application once they are in the United States." The same fact (with links to supporting statistics) was included in a September 2018 post by my colleagues Jessica Vaughan and Dan Cadman, and myself. This was the class of individuals to whom the president was referring in his remarks.

So, that means that 89 percent of half of all of those who pass credible fear screenings actually show up for court to apply for asylum. There is an assumption in this statement that the appearance rates for credible fear applicants is equal to the appearance rates for asylum applicants generally, but I think that is a pretty fair assumption, or perhaps even one that errs on the side of caution as it relates to appearance rates for asylum applicants who have passed credible fear.

That in turn means that 44.5 of all applicants who are found to have a credible fear actually show up for court to apply for asylum. Put another way, 55.5 percent of aliens who passed credible fear and are given the opportunity to show up in court to apply for asylum don't show up to court and/or don't apply for asylum. As the attorney general noted in the aforementioned speech, the failure to file an asylum application by an alien who has passed credible fear "suggests they knew their asylum claims lacked merit and that their claim of fear was simply a ruse to enter the country illegally." Just to be clear — not all aliens since 2006 who passed credible fear but who were ordered removed in absentia failed to file an asylum application; in fact, DOJ statistics show that about 12 percent of them filed asylum applications but failed to appear anyway. This means that the failure to appear rate for aliens who have passed credible fear may actually be higher than 55.5 percent, assuming that all of those who fail to file for asylum fail to do so because they don't come to court.

And even the aforementioned 44.5 percent appearance rate to apply for asylum is a bit misleading. As anyone who is a regular reader of my column knows, I was an immigration judge in a detained immigration court. By the time I left that position (in January 2015), a significant number of the asylum cases that I heard were filed by aliens who had passed credible fear. Just to bottom-line this point: All of those applicants showed up for court, because they had to — they were detained, and a York County (Pennsylvania) correctional officer would bring them to court from a pod down the hall. They appeared, but there's no guarantee that they would have wanted to otherwise.

Actually, the fact that they were detained is indicative of the fact that most or all of them were flight risks, that is, respondents who were unlikely to appear for future proceedings. Nonetheless, in the eyes of the New York Times fact-checker, they were individuals who attended their court hearings (albeit by coercion).

A March 2018 report from the Center for Migration Studies, estimates that there were an average of 40,520 aliens in immigration detention on a daily basis in FY 2018. Statistics from the Executive Office for Immigration Review (EOIR), the Department of Justice (DOJ) agency with jurisdiction over the immigration courts and the Board of Immigration Appeals (BIA), reveal that there were 786,303 cases pending before the agency at the end of FY 2018.

Accordingly, approximately 5 percent of all aliens in proceedings before EOIR were detained on a daily basis. Logically, many of those were aliens who had passed credible fear because of the manner in which they were apprehended and because, as the Supreme Court has recently held, they are not eligible for bond until their cases are ultimately decided (a conclusion that the BIA has not yet implemented, but which the attorney general is currently considering).

It would make sense that a large number of aliens who pass credible fear would fail to appear for removal proceedings, because the asylum grant rate for such aliens is not high. Rather, in FY 2018 through the end of May of this year, 30 percent of all aliens who passed credible fear were ultimately granted asylum, which is actually up from 26 percent in FY 2017, according to DOJ statistics. For those who had negative credible fear determinations that were overturned by immigration judges, that number is even lower: 21 percent.

Finally, it is worth noting, as Vaughan, Cadman, and I pointed out in our post, that the most critical issue is not whether an alien appears for court, but whether the alien appears for removal, if ordered removed. As we stated:

Let's make an analogy to the criminal courts. The accused bonds out and appears for all of his trial hearings hoping to be exonerated. He is convicted nonetheless. He even attends the sentencing hearing, hoping for probation or a halfway house or something equally easy. To his shock, he is sentenced to prison for two years. If, after walking out of the courthouse, he flees instead of surrendering himself to the U.S. Marshals Service at the designated time and place for transportation to confinement, then he hasn't in fact complied with the orders of the court. He is a fugitive.

Yet at present there are approximately 950,000 aliens with outstanding orders of removal roaming the streets of America. Yes, you read that figure correctly. Imagine a nation with nearly a million criminal fugitives on the loose. It would be a national scandal. Why it is shrugged off in the immigration context by the media and alien advocates, we will leave for our readers to decide.

It is odd that the press focuses on the president's offhand comments, and yes, "like a level of 3 percent" is a misstatement of the number of aliens who pass credible fear but fail to appear for court. The president, however, effectively got the New York Times to publish that figure. He also baited them into admitting that not all aliens who pass credible fear actually appear in court. No wonder he beat out a field of 16 Republicans for the GOP's nomination, and one inevitable president for the position.