A One-Sided Study on Detention of Illegal-Immigrant Families

Here's the other side of the coin

By Jessica M. Vaughan, Andrew R. Arthur, and Dan Cadman on September 14, 2018

An inordinate amount of time is spent by those of us who work at the Center for Immigration Studies addressing anti-immigration-enforcement efforts that are either nonsensical on their face ("Abolish ICE!"), or that evince the kind of softball scholarship that occurs when conclusions go on the march in search of selective or dubious facts to prove them. But the effort must be made because allowing something like that to go uncontested is insupportable. This is one of those times.

On August 16, the American Immigration Council (AIC), an advocacy group established by the American Immigration Lawyers Association, issued a report entitled "Detaining Families: A Study of Asylum Adjudication in Family Detention".

The report asserts that, despite the draconian lengths to which the Trump administration has allegedly gone to needlessly detain families, those families' track record of actually appearing at immigration court removal proceedings is so startlingly high that it will be clear to any right-thinking individual that detention is unnecessary and cruel. (Those are our words, not theirs, but if you read the report for yourself, you will have difficulty arriving at any other way to interpret its findings).

The very next day, the San Diego Union Tribune published a piece, "Almost all asylum-seeking families show up for court, report finds", that, in its turn, blindly accepted the findings of the AIC report.

Then, on September 11, Buzzfeed followed up with its own piece, loudly proclaiming, "Here's A Statistic You Won't Hear From Trump: Over 90% Of Families Seeking Asylum Show Up For Their Court Hearings".

Our review of the study can be summed up this way: 1) it is a selective presentation of facts; 2) it is reductionist thinking at its worst; and 3) it deliberately obfuscates the huge number of aliens who ignore court orders when not in detention.

The statistical heart of the study — the so-called 90 percent appearance rate — just doesn't stand up to scrutiny on a number of levels.

For starters, Department of Justice Executive Office for Immigration Review (DOJ EOIR) data referenced in the report have been selectively used to prove the AIC authors' case. This is because the authors have chosen to look only at the percentage of those who were detained and released, which is not nearly the same as all those who arrived at the border. Many have been paroled immediately because they passed the "credible fear" test — a process fraught with fraud, loopholes, and procedural problems (see here, here, and here).

If one examines EOIR data, one sees that approximately half of those who are allowed to enter after credible fear approval do not even bother to file a formal application for asylum. Since 2006, 53 percent of all the completed cases that originated as "credible fear" claims did not result in an asylum application. This strongly suggests that many of these aliens may not ever have intended to pursue an asylum claim at all, but were instead taking advantage of our lenient policy to gain entry into the United States. Many, if not all, have simply disappeared into the larger illegally resident population. Yet these entrants who disappear haven't been calculated into the authors' statistics, probably because to use them would destroy the argument they are attempting to make: that aliens can be trusted if released.

Further, the EOIR data show that a large number of those who do submit asylum applications do not appear for their immigration court proceedings, notwithstanding the AIC authors' claims to the contrary. The number of in absentia ("no-show") removal orders for cases that initiated with approved "credible fear" claims has exploded in recent years— from 786 in 2009 to 8,999 in 2017.

Finally, only a small share of those who do bother to stick with their case all the way to completion are found to actually qualify for asylum. According to the immigration court statistics, since 2013 only 16 percent of all adults who were initially approved for "credible fear" claims were ultimately granted asylum by an immigration judge.

In sum, when you do the math, the reality is that only a small fraction are bona fide asylum seekers, and that may be a generous calculation, considering how many can successfully game the asylum criteria.

The AIC report also elides over an important point about how long it takes for such cases to work their way to conclusion: "Out of the 16,677 family members in our study, 6,321 had their removal or withholding-only proceedings completed during the study period." Carefully considered, what this means is that almost 62 percent of those cases were still pending as of the report's publication. How can one make reasoned judgments about the pool of statistical data when only 38 percent of it is complete?

The report additionally takes no account of how differently these cases are being handled now than they were during the Obama years, even though eight of the years studied took place during the Obama administration.

Let's look at the Buzzfeed article for a moment to illustrate some other problems with the AIC report, as well as Buzzfeed's own selective take on the matter. For example, Buzzfeed states:

The findings contradict the Trump administration's assertion in a recent proposal to revise a court agreement that limits how long children can be held in detention. "In many cases, families do not appear for immigration court hearings after being released," the proposal said.

But here is the actual quote from the Federal Register:

In many cases, families do not appear for immigration court hearings after being released from an FRC, and even when they do, many more fail to comply with the lawfully issued removal orders from the immigration courts and some families engage in dilatory legal tactics when ICE works to enforce those orders. [Emphasis added.]

The distinction — the truncated portion of the Federal Register statement Buzzfeed chose to leave out — is subtle but important: When aliens are released on bond, or with an electronic tracking device, or simply on their own recognizance, it isn't just for "court hearings". It's for the duration of the entire process, which includes removal if-and-when ordered.

Buzzfeed additionally states:

But [the] calm is likely to be broken by the Trump administration's effort to overturn a 1997 court agreement known as the Flores settlement that regulates how immigrant children are to be treated while in custody.

But as the Federal Register, reflecting the Trump administration's most recent policy decision, makes clear:

The FSA [Flores Settlement Agreement], as modified in 2001, provides that it will terminate forty-five days after publication of final regulations implementing the agreement.

The problem is that, to its shame, the federal government never took the time or trouble to push new regulations out the door and into the Federal Register until now. Implementing regulations, however inexplicably tardy they may be, hardly "overturn" an agreement, particularly when they are specifically provided for in that agreement.

Buzzfeed also cites the AIC report this way:

When researchers looked at only cases where a judge had issued a decision, 6,587 families, they found that the court appearance rate was 72%, overall, but went up to 92% for asylum applicants. That percentage rose to 94% if the family had filed an asylum application and had an attorney.

Keep in mind that, per the report's own parameters, this factoid only accounts for the small percentage of cases (approximately 38 percent) that had reached finality among those studied. Thus, the court appearance rate counts for very little — especially since, as noted, and as will be discussed in detail below, "court appearances" alone are not the ultimate standard for compliance with the law by aliens in proceedings.

What's more, even though the authors, who are themselves attorneys, suggest in the report that having legal counsel is critical, by their own statistical measure the appearance rate in asylum cases only rose 2 percent (from 92 percent to 94 percent) for cases in which aliens were represented by lawyers.

There is another subtle item in the AIC study that brings home how leniently such cases were treated during the Obama years. The report says that there were 18,378 individual family members in proceedings with "at least one court hearing while the family member was held in a family detention facility." (See p. 11.) However: "Out of the 16,677 family members in our study, approximately 11 percent had a removal proceeding after a credible fear proceeding, or a withholding-only proceeding after a reasonable fear proceeding." (See p. 12.)

This strongly suggests that many family members benefited from that "catch and release" policies of several prior administrations, including most significantly during the Obama years. Why did only 11 percent (or 1,834, more or less) end up in removal proceedings after credible fear or reasonable fear interviews, when the study involves 6,587 respondents released from family detention with a final determination by an immigration court? Quite probably, because for a significant period of time — most especially during the height of the tidal wave of families and unaccompanied minors in 2014 and 2015 (which continues to this day), the Department of Homeland Security elected not to fully process a significant number of those aliens under the law as it should have.

There were at the time credible reports, including from Border Patrol union officials, that agents were under instructions not to initiate expedited removal proceedings under Section 235(b) of the Immigration and Nationality Act, 8 U.S.C. Section 1225, and to prepare instead paperwork for ordinary removal proceedings (called Notices to Appear, or NTAs). Later yet, they were told to prepare those NTAs with no date and time scheduled for hearings, and even not to file the paperwork with the courts so that proceedings could never commence because the immigration courts would remain unaware of the NTAs having been issued.

Ironically, these officials alleged that the orders came after the administration found itself embarrassed by the shockingly high rate of family and unaccompanied minor "no shows" at court proceedings but, rather than fix the problem, they addressed the optics by ensuring that if families weren't being obliged to appear at a particular date and time, they could not be accused of having absconded.

Now let's examine some of the threads that make up the sweater of this report — the series of facts and assertions leading up to their grand illusion of compliance that represents the major "finding" of the report.

The United States currently detains more protection-seeking families than any nation in the world.

This is because the United States has a greater mass illegal migration problem than any single nation in the world. Note also that "protection-seeking" means nothing as regards the legitimacy of the claim. Many people, family units as well as single individuals, seek asylum because it is one of the most abused privileges in the U.S. immigration system, and even unsuccessful claimants have a significant chance of prolonged stays — and employment — in the United States, particularly if released from detention, as is evident from our discussion above.

The number of detention beds reserved exclusively for families has ballooned since the first facility opened in 2001. Between 2001 and 2016, capacity reserved exclusively for detaining families increased by an astronomical 3,400 percent.

This should not be a surprise. Had the authors chosen to be more precise, they could have pinpointed the ballooning capacity to somewhere in 2013 or 2014 when — unbeknownst to the public for a significant period of time due to government efforts to conceal it — the United States began experiencing a tidal wave uptick in the number of unaccompanied minors and partial family units as a result of the Obama administration gutting border control policies. One cannot help but wonder whether the authors chose to obfuscate that fact through the expanded but basically meaningless date range, because for several years onward from the first family center that opened in 2001, there was no need for more. It was the Obama administration's policies eviscerating reasonable border enforcement that resulted in such a huge uptick of arriving minors and partial families that made more facilities necessary.

[W]e find that disparities in case outcomes reflect broader jurisdictional inequities, such as the availability of local attorneys and the willingness of local prosecutors to grant a case closure based on prosecutorial discretion. [Emphasis added.]

Prosecutorial discretion is a misnomer for a practice made common by the Obama administration in which thousands of valid removal proceedings were closed simply because they did not meet that administration's skewed and narrow notion of "enforcement priorities". This practice stands the notion of "discretion" on its head by making it the norm instead of the exception. It is also one of the several reasons for the uptick in illegal family and unaccompanied minor crossings that became particularly acute in FYs 2013-2015, but continue to this day.

Families have been subjected to overdetention by immigration officials, and the courts have served as an important check and balance in this complex system. ... Immigration and Customs Enforcement (ICE) officers issued initial custody decisions that unnecessarily prolonged the detention of families. Immigration judges regularly found that family members were eligible for release, overturning detention officers' previous decisions to keep families detained.

It is true that immigration officials' decisions have often been overturned by immigration judges presiding over bond hearings for individuals, family members or otherwise, held in detention in lieu of bond. It is also true, though, that once released, many aliens abscond, leaving judges to issue in absentia orders of removal that cannot be enforced, often for years, because in a country of the size and with the population of the United States, it is easy to slip away and disappear among the other 11 or 12 million aliens residing illegally in the country. Because it is immigration officials, not judges, who are obliged to try and hunt these aliens down, often fruitlessly, it's no wonder that they are by nature cautious in their initial release decisions.

If one wanted to do serious scholarship, it would involve examining the combination of cases in which release or bond conditions are overturned by judges only to ultimately end up with in absentia orders, or in which the alien flees rather than report for removal at the time and place ordered. Were that to happen, what it might show is that with great frequency — perhaps even in the preponderance of cases — immigration judges who re-determine conditions of release downward are proven wrong because, in the end, the alien and his or her family flee. But of course no alien advocacy group wishes to go down that path because they already know what they would find. It's more convenient by far to issue tendentious reports with glowing, but deliberately misleading, conclusions showing how law-abiding aliens are — which is mildly amusing since their very first act on entering the United States was, of course, the illegal crossing.

Families should be placed directly into proceedings before an immigration judge, rather than first subjected to a summary removal process.

As we have explained, and as the facts themselves show when carefully examined, almost none of the families examined in the study were subjected to summary removal processes even when they ought to have been under the law. After all, considering that hundreds of thousands of illegal entries are attempted every year, why should all those who arrive illegally be entitled to long, drawn-out immigration proceedings before a judge? Congress created the expedited removal process for that very reason — because it is inefficient and costly to hold a trial for every illegal border-crosser.

Finally, let's return to this notion of compliance through court appearances. What the authors have gone to great lengths not to explain is that when an alien shows up for court at the final hearing and is told he is being denied asylum and ordered removed (which is by far the most common outcome), it is also a requirement that he surrender himself for deportation at the time and place designated by federal immigration officers. If he doesn't do so, then the entire proceeding is a mockery, a hamster-on-the-wheel exercise. And the truth is that very few aliens show up for removal when ordered. Why would they? It's worth the loss of bond (if indeed there is any) in exchange for several more years in the United States, potentially many more years, and the only price of getting caught after fleeing is to be deported — which they're already facing.

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 our readers to decide.

That astoundingly high figure is something the authors of the AIC report studiously avoided mentioning. Just because it is immigration agents, not judges, who must execute warrants of removal doesn't mean complying with them isn't a part of the immigration court system, and an expectation levied against those who have been released on parole or their own recognizance or bond. The AIC authors' failure to point to this important fact reflects their selective and reductionist view of the law, which is curious in that all three are attorneys who surely must know what the law requires.

A court that cannot see its orders executed is a sham, and this in many ways represents what the U.S. immigration court system has become. It's worth reading some of the writings of former immigration judge Mark Metcalf (see, e.g., here and here) to get a flavor of the paralysis and ineffectuality that has come to underscore EOIR, which at the end of July 2018 confronted an astounding backlog of nearly 750,000 cases — up 38 percent in a single year.

While there are legitimate dialogues to be had about the scope and size of detention, and what the viable alternatives may be, those debates will only occur when alien advocates are more rigorous in their scholarship, and when they acknowledge the severity of the problem of aliens absconding from the removal process, most particularly at the final stage if and when they are ordered deported.