Definitive Evidence Undermining Trump Administration Claims that Families Must be Detained to Ensure Court Appearance
Yesterday, Syracuse University’s TRAC released a report that shows that the overwhelming majority of asylum-seekers show up for their hearings. This finding debunks repeated claims made by the President and senior Homeland Security and Trump administration officials that asylum-seeking families arriving at our southern border abscond.
TRAC, which relies on the government’s own data, studied 47,000 newly arriving families seeking refuge since September 2018 and found that, through the end of May 2019, “almost six out of every seven families released from custody had shown up for their initial court hearing… For those who are represented, more than 99 percent had appeared at every hearing held.”
This new TRAC finding directly contradicts recent testimony from Acting DHS Secretary Kevin McAleenan before the Senate. He claimed that, “Of over 7,000 families that we put through a process to try to get court results more quickly, 90% did not show up…” As a result, media reported that asylum-seeking families do not show up for immigration hearings.
According to Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel: “The TRAC report is so significant because it exposes the failed and cruel Trump administration’s response to the border challenge is built on a house of cards. The false claim by the Trump administration that 90% of asylum-seeking families don’t show up for their hearings underpins many of the Trump border policies. For example, for more than a year the Trump administration and Republicans have been pushing for more and longer detention of families and children based upon this false claim. Judiciary Chairman Lindsey Graham even has a bill supported by Republicans and the White House to require more detention of families and children and it is expected to be marked up in the Senate Judiciary Committee in the coming weeks.
“The refrain in Orlando and at other Trump political rallies is that Congress and the administration must take action to end ‘catch and release,’ by which they mean that asylum-seekers are released never to be heard from again. Even the ‘Remain in Mexico’ policy is based on this false claim. Instead of releasing people into humane alternatives to detention programs while they await their immigration hearings, the Trump administration claims they have to return asylum-seekers to Mexico because they don’t have enough detention beds and can’t jail children and their families for long enough to ensure their appearance at immigration hearings.”
David Leopold, Chair of Immigration Law at Ulmer & Berne LLP, Past President of the American Immigration Lawyers Association and Counsel to DHS Watch, said: “Did McAleean blatantly lie to Congress or was he fed false information by DHS? Either way his claim that 90% of asylum seeking families failed to show up for their immigration court hearings is a bald-faced lie from the Trump administration. Now that we know the truth, the Trump administration can’t continue to claim that families must be locked up for indefinite periods of time because they may abscond, that they have to be returned to Mexico to await immigration hearings because we don’t have the detention space to hold them, and that legal representation isn’t an effective tool to address this border challenge.
“With TRAC’s data and without the misleading DHS data, even the argument in support of the bill that the Senate Judiciary intends to consider soon — to authorize detention of asylum-seeking families and children for 100 days without appropriate standards as a solution to the border challenge — falls apart.”
Flawed DHS Data
Not only does the TRAC report directly refute McAleenan’s claims, a review of the TRAC report, McAleenan’s statements, and the written testimony of the Immigration and Customs Enforcement (ICE) witness at another Senate Judiciary hearing reveal that the widely touted administration figures based on DHS data is deeply flawed for multiple reasons. First, instead of reviewing the TOTAL population of asylum-seeking families — almost 47,000 — during the entire period of time families have been tracked (starting in September 2018), as TRAC did, DHS data points only to those cases with orders of removal on an expedited docket – 7,724 cases. This means DHS neglected to report on the vast majority of other cases — almost 40,000 — which TRAC found have a very high appearance rate.
Second, of the 7,724 cases with orders of removal, DHS found that 90% of them were issued “in absentia” which they claim means the family did not show up. However, “TRAC undertook a detailed examination of information on each decision that indicated the family had not appeared at their initial hearing” and found multiple issues:
- “TRAC’s further examination showed that for 83 percent of these so-called ‘in absentia’ cases it was unclear whether or not a hearing had actually occurred. This is because for each of these cases rather than recording that the case had been decided at the scheduled hearing, the immigration judge had recorded that s/he had decided the case ‘prior to [this initial] hearing.’ When this happens, the scheduled hearing need not occur so there would be no hearing for the family to have attended. Yet they were marked absent.”
- “Some immigrants who don’t appear simply have not received notification of their hearing.”
- “Others may receive a written notice, but the notice may have been in English which they couldn’t read.”
- “While families may have been handed notices to appear, these notices are unlikely to contain the actual location and time for their court hearing since such details will not yet have been determined.”
- “Receiving subsequent notices after the court sets the hearing date and location can be problematic. Families released at the border may not yet know where they will reside, and may not have a way to reliably receive hearing notices sent through the mail – at least until they have time to get permanently situated.”
- “For those who are returned to Mexico to await their hearing, families may not have any reliable way to receive notification of their hearing.”
- “As of the end of May, TRAC’s examination of court records showed that, symptomatic of the problem of families receiving timely hearing notice, there were nearly ten thousand ‘phantom’ family cases on the court’s books. These were cases entered into the Immigration Court’s database system but with little information apart from a case sequence number. The date of the NTA, its filing date, charges alleged, and particulars on the family were all empty. Virtually all information on these phantom NTAs was blank – yet this is the same system used by court personnel to manage sending hearing notifications.”
- “Even during normal times, in reviewing court records TRAC found that the addresses where notices are sent may be unreliable. Sometimes address fields are left empty, while for others TRAC found there were transcription errors. For example, the recorded zip code did not actually exist or implied a different city and state from those recorded, or the city wasn’t even in the state shown. The address also may not be the current address because the immigrant had moved. Even when address changes were sent the court, these may not have been updated in the court’s records.”
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “Now we know — backed by the latest data — what we suspected all along: the Trump administration is wrong. Contrary to Trump administration claims, asylum-seeking families do, in fact, show up for their hearings in very high numbers, especially when represented.
“Syracuse University’s TRAC is an extremely reputable source for data on immigration. They use sound methods for aggregating and interpreting data that many have trusted for decades. So, it makes you wonder — how did DHS come up with data that literally appears to be the opposite of what TRAC found? And why?
“Although DHS has not provided an explanation, a review of what we do know about the DHS data suggests that while ignoring data identified by TRAC, DHS intentionally identified data that would falsely support their oft-repeated claim that asylum-seeking families do not show up for immigration hearings and, therefore, need to be indefinitely locked up until they are removed. Never mind that several organizations have been highlighting other data for years showing a high appearance of families showing up for immigration court.“