Trump Was Wrong to Claim That Just 1% of Immigrants Show up for Hearings. Here’s Why.
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In the final presidential debate between President Donald Trump and former Vice President Joe Biden on October 22, 2020, Trump claimed that when asylum seekers are allowed into the country for their hearings, “less than one percent of the people come back.”
Is he right? No. Not even close.
Why Immigration Hearing Attendance Matters
Under international and US law, immigrants who are fleeing persecution have a right to request asylum. Due to the complexity of asylum cases (and immigration law more generally) as well as the backlog of cases in the immigration courts, asylum cases often take months or years from start to finish. During this time, an asylum-seeker will often hire an attorney, assemble documents and evidence in support of their case, and attend shorter “check-in” hearings with the courts. At the end of the asylum process, an immigration judge decides if asylum is granted. If an asylum-seeker does not attend a hearing, an immigration judge may issue a removal order (i.e. order them deported) in their absence, what is known as an “in absentia” removal order.
A longstanding claim by those critical of the immigration system is that immigrants do not actually attend their hearings. Critics then use this claim to justify policies that would keep immigrants in detention centers rather than allowing them to live in the community. This is, in fact, the primary justification for the growth of private immigrant detention facilities in the 1980s and 1990s. Critics have also used these claims to justify policies that would close the border to asylum-seekers outright. The Migrant Protection Protocols (MPP), also known as the “Remain in Mexico” policy, has done precisely that. Since January 2019, nearly 70,000 asylum-seekers have been excluded from the United States and forced to wait in Mexico for their asylum hearing. The MPP program has been challenged on legal grounds and in October 2020, the Supreme Court decided to review the legality of the policy.
Understanding the Data
Given the significant policy consequences for claims about immigration court appearances, it is important to understand whether the data supports the claim that immigrants fail to appear for their hearings.
In 2019, TRAC conducted a focused examination of the case records for 65,691 families seeking asylum who had been allowed into the United States between September 2018 and May of 2019. Of those, about 47,000 had attended a hearing at the time of the study while the remainder had not had their first hearing. Naturally, if an individual has not had a chance to attend a hearing, it is not possible to determine whether they attended or not.
Out of the 47,000 cases of asylum-seekers who had at least one hearing, we found that about 38,000-or 81%-attended every single hearing. If the individual was able to obtain the services of an immigration attorney, this number increased to 99%.
The reason for near total compliance when asylum-seekers have an attorney helps to explain why some immigrants may have missed their hearings. Immigration court notices and other documents are printed in English, not in Spanish or other non-English languages. So when the court sends a reminder to an immigrant about a hearing date or changes the hearing date, time, or location (which happens regularly), the recipients may not be able to understand the document. An asylum-seeker may have moved and may now have a different address than the one on file with the court, which means hearing notices are sent to the wrong address. Even when asylum-seekers submit a change of address form to the court, delays at the court may mean that a notice is mailed out before the court has processed the change of address. ICE has added to the confusion by intentionally issuing court notices with inaccurate or missing hearing information, which has led to widespread confusion and a Supreme Court case.
Immigration attorneys may mitigate virtually all of the factors that lead to asylum-seekers missing their court dates. Attorneys are able to explain the most important parts of the asylum process (such as attending hearings) to their clients, keep in regular communication with the court about upcoming dates, provide document translation, and mitigate the consequences of unintended mistakes on the part of the court or the client. Recognizing the important role that immigration attorneys play in court outcomes has led immigration judges, federal judges, non-profit organizations, and immigration advocates to work together to increase access to attorneys. (For example, see the Vera Institute’s toolkit for universal representation.)
See the Data for Yourself
Recognizing the importance of providing the public with information about hearing attendance, TRAC recently improved its online immigration court tools to show this information.
TRAC’s “deportation proceedings” tool (available here) allows users to see how many immigrants in removal proceedings more broadly — not just asylum cases — are either (1) waiting for a hearing, (2) have attended all hearings, or (3) were not present at their most recent hearing and received an in absentia removal order. The tool also allows users to break down the data along many other variables. Perhaps most importantly, the tool allows users to see the effect that having an immigration attorney plays in each of those three outcomes above.
The best way to use this tool is to look at the percentage of cases where the individual was not present at the most recent hearing and was issued an in absentia removal order. For FY 2020 so far, just 4.5% of immigrants facing deportation in court have failed to attend their last hearing. That number was 13.5% in FY 2019.
The data also shows that in 43% of cases in FY 2020, the individual was “always present at hearings.” However, that number is misleading, since the percent of people “still waiting for their first hearing” is 52.5%. If a person hasn’t had a hearing, it would not make sense to have a record of attending it (or missing it).
Was Trump Right? No.
So, was Trump right: do only 1% of immigrants attend their hearings? The answer is resoundingly “no.” Trump’s error is not merely a rounding mistake or an innocent misquoting of legitimate data. The claim that only 1% of immigrants attend their hearings is simply borrowed from a long line of anti-immigrant activists and politicians who fabricate data to support a pro-deportation agenda that seeks to close America to people lawfully seeking refuge.
The United States’ asylum system is not perfect. Immigrants are ordered deported every day for not appearing before the courts. Certainly a fraction of these cases are intentional, although some would argue that the lack of procedural justice within the immigration courts themselves encourages this. However, for the most part, immigrants attend their hearings and when they fail to appear, it is for innocent and entirely understandable reasons that could have been resolved by having access to counsel.
Trump may not understand immigration — and he probably doesn’t want to. But in my experience through teaching in the classroom and in public workshops, the vast majority of Americans are hungry for real understanding and non-partisan data that will empower them to have an informed debate about how to improve our broken immigration system. To that end, I hope this was useful.
Originally published at https://www.austinkocher.com on October 23, 2020.