“Not surprisingly, many of those who are released into the United States after their credible fear determination from DHS simply disappear and never show up at their immigration hearings,” Attorney General Jeff Sessions said in an October 2017 speech.
White House legislative director Marc Short told CNN’s Wolf Blitzer on Monday, “Eighty percent of those that are coming here illegally never show up for court and are never deported.”
And as President Trump cited different numbers in a speech on Tuesday, arguing that people “never” come back or “like 3 percent” do — and for those who fail to report for legal proceedings, the result is either that the immigrants are “in your system” or commit murder.
The administration has used this rational as justification for its new “zero-tolerance policy” of detaining families and, until Wednesday, separating children from adults. To the Trump administration, the policy may be extreme, but it is necessary to solve the problem of asylum-seekers failing to show up for their court dates, receiving “in absentia removal orders,” and staying in the country undocumented.
The trouble with this logic is that most people do in fact show up for their court dates.
The Justice Department’s data from FY 2016 puts “in absentia” cases — immigration cases for which there are no defendants — at just 25 percent, not the 97 percent the president estimated. So just one in four immigrants failed to show up for their hearings. This was a drop from 28 percent in FY 2015.
If someone has passed their “credible fear” screening, which means they have a credible fear of persecution or torture, and they have not been found to be a security or flight risk, they are often released on the condition they appear in court at a future date. In 2015, according to a Washington Office on Latin America analysis of the data from the Syracuse University’s Transactional Records Access Clearinghouse (TRAC), the overall appearance rate in 2015 for all individuals released from ICE custody was 77 percent. Many who do fail to show for their hearings do so because they missed notices sent to old addresses, or because they lack legal representation — not, as the president suggested, because they are off murdering people.
According to an analysis by the group Human Rights First using the Syracuse TRAC data through December 2017, 97 percent of mothers who had legal representation and whose cases were initiated in FY 2014 were actually in full compliance with their court hearing obligations. The same is true for 98 percent of children.
The TRAC data showed, according to Human Rights First, that 44 percent of mothers did not have legal representation, nor did 36 percent of children. Counsel is expensive, and federal funds for court-appointed attorneys are scarce. The system is byzantine and complex, and there are not many options when it comes to pro bono lawyers who can do this work.
It is hard enough to get access to legal counsel in these circumstances. It is close to impossible for families held in detention centers in remote locations, often barred from speaking with family members and social circles who could directly help them obtain the legal advice and resources they need to effectively fight for their asylum cases.
There are also systems that can ensure perfect compliance with court responsibilities. Over a year ago, the White House ended a program called the Family Case Management Program pilot system, which matched nearly 1,000 asylum-seeking families in several metropolitan areas with social workers. The program had an overall compliance rate of 99 percent.
Philip Wolgin, the managing director of immigration policy at the Center for American Progress, stressed that these are “people who are exercising their legal right to claim asylum.” (Editor’s Note: ThinkProgress is an editorially independent news site housed at the Center for American Progress.)
“It’s also not surprising that the administration has ended proven alternatives such as the Family Case Management Program, which cost a fraction of what it takes to incarcerate someone and work well. Instead they would rather lock up as many people as they can.”