As the number of unaccompanied children arriving at the United States border has increased, some lawmakers have argued that children frequently disappear into the woodwork, and propose mandatory detention as a solution. Some say as many as 90 percent fail to attend their immigration court hearings. Yet government data recently published by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) may indicate the opposite. Not only do a majority of children attend their immigration proceedings, according to TRAC, but 90 percent or more attend when represented by lawyers.
TRAC’s data, obtained through the Freedom of Information Act, examines 101,850 immigration court proceedings begun while a child was under 18, from Fiscal Year (FY) 2005 through June 2014. TRAC then reports the number of “in absentia” designations by courts in those cases. “In absentia”—Latin for “in absence”—is a term for a judicial hearing held without the individual present. Any delay in appearing at any immigration hearing may lead to a court removing someone in absentia, according to the Immigration Court Practice Manual and under federal regulations.
TRAC’s data, for the first time regarding cases begun while a child was under 18, allows comparison of the number of “in absentia” designations to cases overall. (EOIR previously reported “in absentia” numbers, but without breaking out children’s cases). TRAC’s data indicates that:
- Children have been designated in absentia only 18.4 percent of the time. Thus, in 82.6 percent of cases, the child has either appeared in court or insufficient evidence exists for removal or relief, so far.
- Similar rates exist for children released to U.S. family. In 79.5 percent of cases in which a child was released or never detained, and in a parent or guardian’s custody, the child has not been designated in absentia.
- Although many recent cases are still pending, even in closed cases, children were designated in absentia only 31.2 percent of the time. 68.8 percent of children appeared in court.
Moreover, TRAC’s data indicates that children represented by lawyers rarely are designated in absentia:
- 95.4 percent of children represented by lawyers have not been designated in absentia.
- Similar rates exist even for children with US family. 95.1 percent of children represented by lawyers, and in a parent or guardian’s custody, have not been designated in absentia.
- In closed cases, 93.5 percent of children represented by lawyers were not designated in absentia.
TRAC’s data, however, differs from verbal Senate testimony by immigration courts Director Juan Osuna on July 9 and July 10. Osuna, when asked by Senators John McCain (R-AZ) and Jon Tester (D-MT) about failures to show, responded by stating a 46 percent in absentia rate for juveniles. This is higher than data reported by TRAC, although still much lower than claims of “90 percent” failure rates, as Politifact reported (before TRAC released its data).
These data discrepancies seriously call into question the rationale for detention of children, even on efficiency grounds. (As to human rights, the United Nations has stated that detention is never in a child’s best interest, for immigration violations alone). Previous reports by the Department of Justice’s Inspector General have found fault with immigration courts’ recordkeeping.
Yet several bills proposed this week contain mandatory detention provisions for children—such as Senator Jon Cornyn’s (R-TX) and Rep. Henry Cuellar’s (D-TX) HUMANE Act; Rep. Goodlatte’s and Rep. Jason Chaffetz’s (R-UT) Asylum Reform and Border Protection Act; and Sen. David Vitter’s (R-LA) and Rep. Bill Cassidy’s (R-LA) bill. Before Congress passes bills requiring mandatory detention of children, at a minimum, data on failures to show must be better understood.
Moreover, the data calls into question lawmakers’ claims that children overwhelmingly fail to show for immigration proceedings. Substantiation of those claims has been fuzzy. For example, Sen. Jeff Flake (R-AZ) said that he heard 90 percent of children fail to show from House Judiciary Committee Chair Rep. Bob Goodlatte (R-VA), whose Judiciary Committee staffer said the number was anecdotal evidence, from a local “Los Angeles County sheriff’s detective,” quoted by conservative website Newsmax.com.
Lastly, given TRAC’s data, if Congress wants to ensure children attend proceedings, perhaps Congress should consider appointing lawyers to children. Lawyers are more cost-effective, humane and fair than detention. The Council and others recently filed a national lawsuit to provide lawyers to children in immigration proceedings.
Photo by Elaine Y.