Taking Attendance: New Data Finds Majority of Children Appear in Immigration Court

As the number of unaccompanied children arriving at the United States border has increased, some lawmakers have argued that children frequently fail to appear for proceedings and thus proposed 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) indicates 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 Data Offers Comprehensive Look at Children in Immigration Court

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. The information tabulated in TRAC’s database includes data on both completed cases, in which there was an official outcome, and cases still pending. The data also includes information on “in absentia” cases, Latin for “in absence, “which 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. The Department of Justice’s Executive Office for Immigration Review (EOIR), which runs U.S. immigration courts, uses a similar methodology of reporting “in absentia” numbers as its best available indicator of failures to show. However, EOIR has not historically broken out children’s cases.

The following analysis uses the TRAC data to determine rates of appearance in court based on completed cases. Additional analysis of all cases, both completed and still pending, also provides a snapshot of overall current appearance rates to date.

Children Appear in Immigration Court

Analyzing TRAC’s data shows that juveniles who were not detained or released have a lower in absentia rate than previously reported. Not only do a majority of children appear in immigration court, but the vast majority of children represented by lawyers appear.

Appearance Rate, Immigration Cases Begun Again Children, Not Detained by End of Case, Now Closed, All Cases Since FY 2005.

Key findings are:

• For completed cases, 60.9 percent of juveniles appeared in immigration court.
• 92.5 percent of children represented by lawyers appeared for their court proceedings. This number ishistorically consistent—never below 89 percent since FY 2005.
• This data is consistent with reports from pro bono organizations that provide counsel to children. For example, New York’s Safe Passage Project reported that of approximately three hundred children it screened, only two children failed to appear for immigration court hearings after they were matched with pro bono counsel.

When Pending Cases are Factored In, Appearance Rates Are Even Greater

Appearance Rate, Immigration Cases Begun Against Children, Not Detained by End of Case, All Cases Since FY 2005, Both Pending and Closed

Key findings, when including pending cases, are:

• A greater majority—78.6 percent— of juveniles appear in immigration court, of those not detained in all cases. Moreover:
• The vast majority of juveniles represented by lawyers appear (94.7 percent).

Placement with Parents or Guardians Appears to Help Children Appear in Court

Additionally, TRAC’s data calls into question claims by lawmakers that children, once placed with U.S. family (some without lawful status), will not show for immigration proceedings. Most do, according to TRAC:

• In 79.5 percent of cases (both closed and pending) 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.
• For children represented by lawyers, 95.1 percent of those in a parent or guardian’s custody have not been designated in absentia (in both closed and pending cases).

Conclusion

Evidence obtained from EOIR’s own data suggests that children appear in immigration court—and that when children are represented by counsel, appearance rates are even higher. This data suggests children’s supposed failures to appear in court are red herring arguments—designed to place blame for the system’s deficits on children themselves, rather than on courts’ lack of resources to ensure a timely and fair process. Moreover, given TRAC’s data showing the relationship between representation and attendance, the appointment of counsel to children may help ensure attendance at proceedings in a more cost-effective, humane, and fair manner.