Misunderstanding the Numbers: Aliens Who Disappear Before Trial

By Mark Metcalf on January 26, 2019

A policy analyst with the American Immigration Council, an offshoot of the immigration lawyers' lobby, recently tweeted a critique of my new report, "Skipping Court: U.S. Immigration Courts & Aliens Who Disappear Before Trial". The analysis, by Aaron Reichlin-Melnick, falls short as an informed critique.

Try as he might to prove otherwise, 37 percent of all final orders in removal cases from 1996 through 2017 were issued to aliens who failed to appear for their hearings. Forty-three percent did the same in 2017 and 42 percent did so from 2015 through 2017.1 "Failures to appear", write court observers Timothy R. Schnacke, Michael R. Jones, and Dorian M. Wilderman, "undermine the integrity of the justice system, as each FTA tends to erode the respect that an independent judiciary deserves."2 These critics try to fix the problem; Reichlin-Melnick tries to explain it away. Here's why he's wrong.

Reichlin-Melnick makes the same mistakes that EOIR does in figuring failure to appear rates. EOIR includes detained aliens to calculate failure to appear rates. Obviously, aliens detained pending their hearings cannot miss court, but enlarging the denominator by including those in custody pending trial predictably shrinks the numerator of those who skipped court. This is the way EOIR has reported failures to appear and concealed high failures to appear for the last 22 years.

Reichlin-Melnick's analysis uses the same misty math as EOIR. He includes in his statistics those aliens whose cases were in the system, but were not postured for an arraignment or other proceeding requiring their attendance at court. In effect, their cases had not been heard and may not have been assigned to a judge at the time the Yearbook was published. His attempt to include these unheard cases to drive down FTA rates is the same as EOIR using detained aliens to diminish FTA rates. So for all his citing from one column in EOIR’s annual report to another, he can only dispute, but not disprove the fact that nearly 40 percent of aliens over the last 22 years dropped out of court. Drilling down on the numbers better explains Mr. Reichlin-Melnick misunderstanding.

EOIR's 2017 Statistics Yearbook reveals that initial case completions (ICC) for detained aliens numbered 54,098 applicants out of 149,581 total initial case completions. The difference between these two figures is 95,753, which represent initial case completions for non-detained cases. Page 34 of the Yearbook discloses 149,436 initial case completions (a difference of 145 that is not explained in the report, but again refers to the same grouping of aliens). Again, subtracting the initial case completions for detained aliens of 54,098 leaves 95,338 initial case completions for aliens who were not detained during removal proceedings.

Despite EOIR using two different statistics for the number of initial case completions in removal proceedings (149,581 and 149,436), nothing on page 34 suggests that the total initial case completions did not include detained cases, and the figures above prove it.  Taking 149,436 total initial case completions and subtracting 54,098 initial case completions in detained cases, yields 95,338 initial case completions. Assuming 41,384 in absentia initial case completions in I-862 cases (as page 34 shows), then there was a 43.38 percent in absentia rate. Assuming 95,483 non-detained initial case completions (as pages 10, 12, 14, 19, 22, 23, and 41 show by subtracting 54,098 from 149,581), then the percentage of in absentia cases falls to 43.334 percent.  Both are over 43 percent, as stated in "Skipping Court".



1. For 2017, 43 percent of aliens free pending trial never came to court. EOIR reported that the failure to appear (FTA) rate for all cases was 28 percent. Total failures to appear equaled 41,302, while the total aliens free pending trial equaled 95,342. Dividing 41,302 by 95,342 shows that 43 percent of aliens failed to appear in court in 2017, 54 percent higher than the 28 percent failure to appear rate stated by EOIR. See EOIR Statistics Yearbook: FY 2017, "Figure 25. I-862 in Absentia Rates" and "Table 19. I-862 in Absentia Orders and Initial case completions by Respondent Type", pp. 33-34.

2. Timothy R. Schnacke, Michael R. Jones, and Dorian M. Wilderman, "Increasing Court-Appearance Rates and Other Benefits of Live-Caller Telephone Court-Date Reminders: The Jefferson County, Colorado, FTA Pilot Project and Resulting Court Date Notification Program", Court Review, Vol. 48, pp. 86-87.