By Dara Lind
Families seeking asylum often miss their court dates — not because they’re criminals, but because the system is broken.
After several months of experimenting with punitive policies toward families coming to the US without papers — including separating thousands of children from their parents to detain and prosecute parents — the Trump administration is reluctantly returning to a practice it pejoratively calls “catch and release”: releasing families from immigration detention and allowing them to live in the US while they wait for their asylum claims to be adjudicated.
President Donald Trump and other top administration officials have spent months railing against the release of immigrant families as a recipe for widespread lawlessness. They claim that once a family is released from immigration, they’ll simply abscond into the US, skipping their appointed court dates, to live as unauthorized immigrants. The administration makes it seem like this is a deliberate strategy — a known end-run around existing immigration law that takes advantages of extra protections afforded to children, families, and asylum-seekers.
But a new study, compiled by a pair of legal advocacy groups, shows that isn’t the case, and that the administration doesn’t have to choose between separating immigrant families (or detaining them indefinitely) and making sure they show up to court. The administration has identified a real problem, but misunderstands, or misrepresents, the cause.
The study confirms that families who cross into the US without papers often miss their court dates, but offers suggestive qualitative evidence — collected from families who were contacted by attorneys and notified that they’d missed their court dates — that many families aren’t deliberately absconding at all.
They’re trying to stay in the system. It’s just that the system makes it too hard for them, then punishes them with an order of deportation when they fail. The people whom the Trump administration is painting as lawless “absconders” are often just lost, confused, and overwhelmed families in a strange land, working as hard as they can to be allowed to stay here but faced with legal and bureaucratic obstacles that make missing a court date an understandable outcome.
If the Trump administration is genuinely concerned about making sure asylum seekers stay in the legal process as long as they’re in the US, this is great news. It shows that they didn’t really need to use punitive tactics like separation and indefinite detention to accomplish that goal. And it shows that, now that they’ve started releasing families together again, they can devote their energy to smoothing the bureaucratic obstacles that are the real heart of the problem.
On the other hand, if the Trump administration continues to paint “catch and release” as a recipe for widespread lawlessness instead of trying to help families go through the system the right way, it will indicate that they are more interested in punishment than they are with ensuring the legal process gets followed.
Families not showing up to court dates is a real problem
Most people who are caught entering the US without papers can be deported quickly without a court hearing. But, to the apparent chagrin of President Trump, there are special protections for some groups, including asylum-seekers, to give them a chance to prove they’re eligible for legal status in the US.
Since the road to legal status runs through the incredibly backlogged immigration court system, that can take years, leaving the government with the question of what to do with migrants while their court cases are pending.
The way Trump tells it, any migrant who gets released from immigration detention before her court case is resolved will immediately escape into the US and evade detection by the authorities. “We release them. They go someplace into our country. They’re supposed to come back within two or three years for a court case, but nobody ever comes back,” Trump told a West Virginia crowd in April.
That’s somewhat overstated, but it doesn’t mean the problem isn’t real.
In fiscal year 2016, the last year for which full statistics are available, slightly more than a quarter of all cases decided in immigration courts ended with an order of deportation issued because the defendant hadn’t shown up to court (known as an in absentia order).
There aren’t separate in absentia statistics just for asylum-seekers caught entering the US. But statistics suggest that relatively few of the people who say they’re seeking asylum when they’re caught by a Border Patrol agent end up seeing the process of applying for asylum through to the end.
Less than 40 percent of people who pass the initial screening interview for asylum submit a written asylum application, which is a necessary step in the process even though they’ve passed the interview and gotten assigned a court hearing. (To the Trump administration, this is proof that the other 60 percent of people were just lying about being persecuted as an excuse to sneak into the US.)
The worst group for absenteeism appears to be families.
Two legal advocacy groups, CLINIC (the Catholic Legal Immigration Network, Inc.) and ASAP (the Asylum Seeker Advocacy Project of the Urban Justice Center), used the Freedom of Information Act to get data about all cases involving “adults with children” in the immigration court system from July 18, 2014, to November 2016 — the aftermath of the spring-summer 2014 wave of Central American children and families entering the US.
That data showed that more than 70 percent of families’ cases decided during that time ended with in absentia deportation orders. For comparison, during fiscal years 2015 and 2016 — i.e,. between October 2014 and September 2016 — the in absentia rate across all cases was only 26 percent.
Not showing up to court is the biggest reason families are losing their asylum cases
But just because the Trump administration is correct that people not showing up to court is a problem doesn’t mean it’s correct about why it’s happening.
And the data collected by CLINIC and ASAP suggests that families aren’t skipping out because they know their asylum cases are doomed. …read more
Read more here: A new study blows up Trump’s “catch-and-release” myth