A recent Justice Department report on U.S. immigration courts provides a rare glimpse into the difficulties faced by the Trump administration as it repairs the damages inflicted on these tribunals over the last 20 years.
But give credit to the courts’ new executive, James McHenry. Early on, he identified the need for transparency and has placed accurate disclosure of court business high among his agency’s priorities.
Candor, if not reform, demands no less.
It’s a good start for an executive whose predecessors often avoided —and sometimes denied — the truth about the courts’ troubling dynamics.
Yet the courts limped along, their annual reports masking a systemic dysfunction never shared with Congress. While transparency won’t cure the dysfunction, it should place some acute disorders in clear relief, among them failures to appear in court.
From 1996 through 2016, just under half of all aliens free pending trial — altogether 1.25 million — were ordered removed, 76 percent of them for evading court. Less than a quarter of this same group actually tried their cases.
Across more than two decades of court business, nearly two-fifths of those free before trial — altogether 37 percent — fled court.
Since 1996, an average of 45,000 migrants each year disappeared and added to a backlog of unexecuted removal orders that in 2016 numbered 954,000.
If predictions are correct, nearly 57,000 people will evade their hearings in 2018 and bring the 23-year failure to appear (FTA) total to 1.05 million runaways.
That amounts to 9.3 percent of the illegal population in the U.S. as measured by a 2017 Pew Research Center study. It is here that damage to the courts, immigration enforcement and national security intersect.
From 2001 through 2005, Immigration and Customs Enforcement (ICE) freed 45,000 out of nearly 92,000 people who entered the U.S. from terror-linked nations. Released to pursue asylum claims, Department of Homeland Security officials believed many would disappear and they were right.
Out of 641,000 immigration court decisions handed down over the same period, 43 percent of them — or 279,000 verdicts — directed removal of those who never made their hearings.
Court records reveal that aliens detained and then released for court fled their hearings at roughly the same rate as their counterparts who were never detained.
Unsurprisingly, DHS found, 85 percent of those ordered removed later absconded. In other words, when confronted with deportation, they ran. Seldom, according to ICE records, were any ever rearrested.
How did this flight from court escape notice? How did it continue for so long without a reckoning? The answer lies in mismanagement across both Republican and Democratic administrations that produced weak — and sometimes dishonest — recaps of court business.
How failure-to-appear rates were calculated for congressional oversight caused this neglect. Instead of figuring the rate by comparing the number of aliens free before trial who missed court out of all those free before trial, the courts compared the number who skipped trial to the much larger number of those who were free before trial plus those who were detained before trial.
Including the detained — people who can’t miss court — in an equation measuring failure to appear rates produced a less alarming result. Hindered scrutiny, concealed threat, and checked reform were its effective byproducts.
Heedlessly, this deception took place against a giant backdrop of risk, when the need for honest reporting could scarcely have been greater.
In the five years following the World Trade Center and Pentagon attacks, failures to appear exploded. Fifty percent of those free before trial —360,199 out of 713,974 — disappeared.
In 2005 and 2006 alone, 58 percent of the same group —216,573 people out of 374,227 — vanished. Using their trademark funny math let court executives tell both Senate and House Judiciary Committees that only 39 percent dodged court and, predictably, the disorder continued.
Such dynamics cannot be ignored — nor such bookkeeping continued — if the U.S. is to revive its courts and enforcement assets, and regain control of its borders. None of this will be easy, though. As recently as 2016, 43 percent of those slated for court never showed.
That keen observer of all things shoddy, Mark Twain, reputedly quipped that “Facts are stubborn things, but statistics are more pliable” — and an entire federal agency proved him right. One new court executive armed with some candor means to prove the exception to Twain’s adage.
Garrard County Attorney Mark H. Metcalf served in the George W. Bush in posts at the Justice and Defense departments, including a judgeship on the Miami Immigration Court.