Most Released Families Attend Immigration Court Hearings

The latest case-by-case records from the Immigration Courts indicate that as of the end of May 2019 one or more removal hearings had already been held for nearly 47,000 newly arriving families seeking refuge in this country. Of these, almost six out of every seven families released from custody had shown up for their initial court hearing. Usually multiple hearings are required before a case is decided. For those who are represented, more than 99 percent had appeared at every hearing held. See Figure 1. Thus, court records directly contradict the widely quoted claim that "90 Percent of Recent Asylum Seekers Skipped Their Hearings.[1]"

Under our current system, there is no legal requirement that immigrants actually receive notice, let alone timely notice, of their hearing. Given many problems in court records on attendance and in the system for notifying families of the place and time of their hearings, these appearance rates were remarkably high.

These and other findings discussed below are based upon an analysis of court records conducted by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. These court records, updated through May 2019, were obtained through a series of FOIA requests submitted by TRAC to the Executive Office for Immigration Review (EOIR).

The Role of Representation and Appearance Rates

A total of 65,691 adults and children had been flagged by the court as family cases since tracking began in September 2018 and were covered in this study. Of these, one or more hearings in removal proceedings had taken place in 46,743 of these cases. Details from court records on each of these hearings were examined. All of these families had already passed their initial credible fear screening and had been placed in formal removal proceedings.

TRAC found that with rare exception virtually every family attended their court hearings when they had representation. Appearance rates at the initial hearing were 99.9 percent. This is in contrast to appearance rates for unrepresented families of 81.6 percent. See Table 1. One reason for these higher rates for represented families is that it is an attorney's responsibility to keep on top of when and where their client's hearing is scheduled, and communicate these details to them. Thus, even if the court's notification system fails, the family still finds out where and when to appear for their hearing.

Table 1. Attendance at Immigration Court Hearings

Attendance at Court Hearing(s)	All	Represented
Attendance at Court Hearing(s)	All	Yes	No

Number of Recently Released Families*
All	46,743	9,891	36,852
Attended Initial	39,957	9,877	30,080
Attended All	37,803	9,789	28,014

Percent of Recently Released Families*
All	100.0%	100.0%	100.0%
Attended Initial	85.5%	99.9%	81.6%
Attended All	80.9%	99.0%	76.0%

* Counts include each adult and child in a family unit; tracking of family units began in September 2018.

When a family doesn't show up, it does not necessarily mean they had intended to "skip" their hearing[2]. 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. The Border Patrol states that it is quickly releasing families directly "with notices to appear in immigration court." 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[3].

There can be additional problems at the court's end. 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[4].

Court records may have other deficiencies. For this report TRAC undertook a detailed examination of information on each decision that indicated the family had not appeared at their initial hearing. These records include a flag indicating that the decision was made "in absentia" - that is, at a hearing where the immigrant failed to appear. It is the presence versus absence of this "in absentia" flag that should indicate the family member didn't attend their hearing.

However, 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. A puzzling conundrum.

Appearance Rates by Nationality

TRAC also examined appearance rates by the family's nationality. Those who had already had hearings from Guatemala made up the largest contingent - 18,732 families. A total of 14,808 families from Honduras also had hearings. Mexican families and those from El Salvador were fewer - 5,267 and 5,153, respectively. Small numbers from a large range of other nationalities made up the remaining 2,783 families.

Appearance rates by these nationality groups are shown in Figure 2 and Table 2. Generally a similar pattern is observed. Appearance rates for represented families were close to 100 percent. Unrepresented families had somewhat lower rates, but still very high. However, unrepresented rates for Guatemala and Honduras were a bit lower than for families from Mexico and El Salvador.

Table 2. Attendance at Immigration Court Hearings by Nationality and Representation

		Number			Percentage
		Families*	Attended Initial	Attended All	Families*	Attended Initial	Attended All
Guatemala	All	18,732	15,380	14,338	100.0%	82.1%	76.5%
Represented	Yes	3,035	3,027	2,987	100.0%	99.7%	98.4%
Represented	No	15,697	12,353	11,351	100.0%	78.7%	72.3%
Honduras	All	14,808	12,263	11,430	100.0%	82.8%	77.2%
Represented	Yes	2,491	2,487	2,454	100.0%	99.8%	98.5%
Represented	No	12,317	9,776	8,976	100.0%	79.4%	72.9%
Mexico	All	5,267	4,953	4,835	100.0%	94.0%	91.8%
Represented	Yes	1,457	1,456	1,451	100.0%	99.9%	99.6%
Represented	No	3,810	3,497	3,384	100.0%	91.8%	88.8%
El Salvador	All	5,153	4,783	4,652	100.0%	92.8%	90.3%
Represented	Yes	1,838	1,837	1,827	100.0%	99.9%	99.4%
Represented	No	3,315	2,946	2,825	100.0%	88.9%	85.2%
Other	All	2,783	2,578	2,548	100.0%	92.6%	91.6%
Represented	Yes	1,070	1,070	1,070	100.0%	100.0%	100.0%
Represented	No	1,713	1,508	1,478	100.0%	88.0%	86.3%

* Counts include each adult and child in a family unit; tracking of family units began in September 2018.

Appearance Rates by Court

TRAC also examined appearance rates separately for individual immigration courts. See Figure 3. Each court that had held hearings for at least 250 family cases was included. The number in parenthesis following the court's name in Figure 3 displays the number of family cases heard.

Not surprisingly, the volume of family cases varied markedly by court. The Houston Immigration Court had already held hearings for the largest number of families (6,499). The Orlando Immigration Court had handled the fewest (256).

Most courts showed patterns very similar to national appearance rates -- with represented families' appearance rates close to 100 percent, and unrepresented families somewhat lower. However, the four courts handling the smallest number of families departed from this pattern with generally lower appearance rates. Among the courts with a sizable volume of cases, Atlanta also showed noticeably lower appearance rates. The reasons for these differences remain unclear.

Some commentators suggest that families that have weaker cases are more likely to skip their hearings. However, there seems little reason for families with different strengths of asylum claims to migrate to some parts of the country and avoid others. While suitable information was not available to compare families and court practices at each location, it seems more plausible that the lowered appearance rates in some courts arose from particular deficiencies in the recording, scheduling or notification systems there.

^[2] See recent amicus brief on past recognition of problems in discussion of history of notification requirements.

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