In Light of AG Decision, Another Look at Claim that Immigrant Families Show Up for Court

An analysis whose conclusions led the data, rather than the reverse

By Dan Cadman on April 23, 2019

I have been again perusing a report issued by the American Immigration Council (AIC), "Detaining Families: A Study of Asylum Adjudication in Family Detention". Although issued in August 2018, it's been on my mind in light of the recent attorney general (AG) decision in Matter of M-S-, a case the prior AG certified to himself, but which was ultimately decided by present AG William Barr. Both the AIC report and the certification decision have to do with releasing alien families from detention during the pendency of their immigration proceedings.

The August report from AIC (an arm of the immigration lawyers' lobby) says that when released, alien family units are a good bet to show up in immigration court, even though this finding is contrary to statistics gathered by the Executive Office for Immigration Review (EOIR), which is the official U.S. government office that controls and oversees those courts. Two colleagues and I examined some of the report's problems shortly after its release, but since it continues to be cited by reporters and lobbyists, it seems worth another look in the wake of the AG's detention decision.

AG Barr says that when families have crossed the border and, except for their claim to a credible fear of return, would otherwise be subject to expedited removal, they are ineligible for release on bond from the immigration courts, which finding reverses a position previously taken by the Board of Immigration Appeals (BIA).

I'm not interesting in re-hashing Barr's decision here, but I am interested in discussing whether the AIC report withstands scrutiny in the light of day, because the report is clearly intended to influence both the public and decision-makers by arguing that detention is unnecessary since alien family members will comply with their obligation to show up for court proceedings if-and-when released. This is particularly significant since the population AIC wishes to see released consists almost entirely of the hundreds of thousands of Central Americans in partial or whole family units who have illegally crossed into the United States since mid-2013/early 2014. The numbers have risen exponentially since that time, becoming a virtual flood of caravans that have overwhelmed U.S. government resources.

It's worth noting that AIC is an advocacy group on behalf of illegal aliens. This doesn't automatically mean that their report is wrong, but it should at least be subjected to critical examination — something that some media outlets have failed to do since it was published, choosing instead to adopt the report's findings as gospel.

For instance, a San Diego Union Tribune article titled "Almost all asylum-seeking families show up for court, report finds", that appeared shortly after the AIC report was published cites without dispute the report's assertion that it arrived at a radically different conclusion from EOIR's own statistics because "The study uses a broader view of the system and a longer time period to calculate its statistics."

My examination of the report raises serious issues both with regard to the conclusion and how it was reached. Here are some of the reasons why.

"Broader View/Longer Time Period". Take, for example, the "broader view [and] longer time period" used in the report, which was 2001-2016. There was a reason for that, and in my opinion it was to skew the statistical outcome. Families being processed and presented to the immigration courts differed both quantitatively and qualitatively in the time frame from 2001 until the nascent flood of illegal crossers from the Northern Triangle of Central America (El Salvador, Guatemala, Honduras) that began in the 2013-2014 timeframe. Thus, you have at least a dozen years of data that would almost certainly lead to different results if considered separate and apart from 2013 to the present time. Surely the authors are aware that with the flood of arrivals since that time, there has been a significant weakening of the structures of immigration control, and with that has come a greater willingness on the part of aliens in proceedings to simply ignore their obligations to appear in court.

Undifferentiated Sets of Family Data Examined in the Report. AIC reports that it used statistics collected via Freedom of Information Act (FOIA) requests from Syracuse University's Transactional Records Access Clearinghouse (TRAC) for its examination. That data was limited to families held, at least for a period of time, at select family detention centers. Other data used was from EOIR and the Department of Homeland Security (DHS). There are several points to be made about such data:

First, for better or worse, EOIR and DHS databases are not freely interchangeable. They compile data differently, use different referents, and don't operate under the same timeframes, for which reason — particularly when one adds in the TRAC FOIA data — one should exercise tremendous caution in arriving at conclusions.

Second, it's worth observing that families and partial family units arriving illegally across the southern border and subject to expedited removal are in a significantly different legal situation than families that might, by way of example, arrive by air and then seek asylum. This would mitigate against compiling data that includes both. Aliens, family units or otherwise, who are subject to expedited removal are at greater risk of flight once they begin to fear an adverse decision from an immigration judge (IJ), and thus have more incentive. Yet I see no indicator that the dataset has been segregated in a way to make such a distinction; it would obviously not be in the interests of a report such as AIC's, though, to make too evident that some types of family units have a greater reason to abscond from their hearings.

The Critical Error of Including Pending Cases in the Dataset. The very fact that the TRAC data AIC borrowed for purpose of the analysis involved five family detention centers skews data in favor of appearing for hearings. Even if such aliens were later released, for the entire period of time that they were in detention they had no choice but to show up in court. This is a corollary to the fact that AIC, by its own admission, compiled the report based on yet-to-be-completed hearings. Take, for instance, this bullet found under the subheading, "The vast majority of families released from detention showed up for court":

Family members who were released from detention had high compliance rates: 86 percent of released family members (with completed and pending cases) had attended all of their court hearings that occurred during our study period. [Emphasis added.]

The measure of compliance for any alien, family members or otherwise, is not only to be present all the way through the completion of his/her/their immigration proceedings, and to receive the order of the judge — something that most certainly cannot be ascertained in the case of an alien whose case is still pending — but, in the end, whether or not they appear for removal if so ordered by an IJ.

If aliens hang around long enough to receive an adverse ruling from an IJ that orders removal and at that point flee, can they truly be said to have been good risks for release from detention? Common sense says that the answer to that question is "no".

Using the Data to Support Pre-Conceived Biases. Having taken advantage of the data, or at a minimum shaped its usage in ways conforming to their pro-unlawfully-present migrant views, the authors then proceed to argue that aliens should not only not be detained, but be provided with government-funded (translate "taxpayer-funded") attorneys to pursue their cases, contrary to existing law.

Needless to say, the authors also argue that the reason so many credible fear decisions rendered by DHS asylum officers are overturned at hearing is because IJs need better, more standardized training (presumably that espouses extraordinarily liberal views of exactly what constitutes a legitimate claim to asylum). Ironically, though, at the same time, they laud these same judges for routinely granting low bonds to aliens that overturn prior bond decisions of DHS officers. Apparently their approval of IJs hinges on whether or not the judges are rendering decisions that accord with their own system of beliefs. I suppose that it hasn't occurred to them that the reason so many credible fear claims are overturned is because the asylum officers ought not have found the fear expressed to be credible in the first place.

Even more ironic: Though they advocate in favor of standardized training to reinforce the need for IJs to grant higher rates of asylum, they also advocate for "judicial independence" of those judges. If judges are truly independent, cannot they make up their own minds about what kinds of cases meet the legal burden needed to successfully establish a claim to asylum?

There are other things about the report that I find troubling as well, so many in fact, that it's beyond the scope of a blog such as this to recite them all.

What is obvious, though, is that the report's authors have, at least in my view, taken liberties with the data to arrive at conclusions that support their philosophical leanings, which in the case of AIC are very clearly in favor of aliens no matter how they have arrived in the United States. In short, this is another example of a report whose conclusions led the data, rather than the reverse.