By Nina Siulc and Noelle Smart
The use of civil immigration detention has expanded exponentially over the past few decades, with a record high of more than half a million people detained in fiscal year 2019. The widespread use of civil detention—at a cost to taxpayers of billions of dollars annually—is often justified by the government as being necessary to ensure that immigrants continue to appear for their court hearings. Yet there is irrefutable evidence that over the past two decades the majority of immigrants—including adults, families, and children—have shown up for immigration court hearings. In fact, those who attend court outside detention on what are known as “non-detained” dockets almost always continue to appear for their hearings when they are able to secure legal representation, calling into question the logic of confining people in costly and inhumane prison-like conditions when representation is clearly a viable alternative to ensure continued court appearances. This fact sheet reviews evidence from the Vera Institute of Justice’s (Vera’s) programs and related studies as well as government data analyzed by independent researchers to help unpack what is known about appearances in immigration court and, alternately, orders of removal in absentia, which are issued when a person does not appear in court.
Non-detained immigrants with representation almost always continue to appear in court
Data from Vera’s programs and other studies shows that most immigrants released from custody continue to appear in court when represented by counsel.
During the first three years of Vera’s Safety and Fairness for Everyone (SAFE) Initiative, which provides free representation through a universal access model in 21 jurisdictions across the country, 98 percent of clients released from custody have continued to appear for their scheduled court hearings.
Similarly, Vera’s evaluation of the New York Immigrant Family Unity Project (NYIFUP) found that at the time of the study fewer than 2 percent of clients released on bond had received orders of removal in absentia for failing to appear in court.
These high appearance rates are supported by findings in an in-depth study of orders of removal in absentia published in March 2020 by Eagly and Shafer, who observed that, “those who obtained lawyers also almost always came to court: 96 percent attended all court hearings in pending and completed non-detained cases since 2008.”
An earlier study by Eagly and Shafer also found high appearance rates among immigrants released on bond nationwide from 2007 to 2012: among immigrants with completed cases, only 7 percent of those with representation received orders of removal in absentia.
The Migrant Protection Protocols (MPP) or “remain in Mexico” program has made it nearly impossible for many asylum seekers to attend court. Yet even among this program rife with due process challenges, 95 percent of immigrants with representation have continued to appear for all their hearings. In short, representation continues to be associated with high rates of appearance in immigration court.
New York: Vera Institute of Justice, 2020. 5p.