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Mark H. Metcalf formerly served in appointed positions at the Justice and Defense Departments in the administration of George W. Bush. He served as a judge on the Miami Immigration Court from 2005 to 2008. He is a Kentucky prosecutor and a veteran of Iraq.
U.S. Immigration Courts & Aliens Who Disappear Before Trial
- 43 percent of all aliens free pending trial failed to appear for court in 2017.
- Since 1996, 37 percent of all aliens free before trial disappeared from court.
- Aliens abscond from court more often today than they did before 9/11.
- Deportation orders for failing to appear in court exceed deportation orders from cases that were tried by 306 percent.
- 46 percent of all unaccompanied children disappeared from U.S. immigration courts from 2013 through 2017.
- 49 percent of unaccompanied children failed to appear in U.S. immigration courts in 2017.
U.S. immigration courts recently released their numbers to Congress for fiscal year 2017. Hoped-for improvements are largely absent and problems that have defined the courts since their beginning persist. Most persistent of all is the failure of aliens to appear for their trials. These no-shows remain high, with 43 percent of all those free before trial — 41,302 aliens out of 95,342 — disappearing from court in 2017.1 More to the point, these numbers add up.
Failures to Appear in Court
American immigration courts consistently have the highest failure to appear (FTA) rates of any state or federal courts in the country.2From 1996 through 2017, 37 percent of all aliens free pending trial disappeared. From the 2,680,598 foreign nationals that Immigration and Customs Enforcement (ICE) released on their own recognizance, 1,320,000, received deportation orders, 75 percent of them (993,593) for failure to appear. Only 25 percent of this group — some 324,402 people altogether — actually tried their cases.3 This dynamic, first reported at a House Judiciary Committee hearing on June 17, 2010, eventually prompted heated denial by the Obama Justice Department4 but it is not solely a problem of Democrat administrations. Administrations of both parties have failed to effectively address it.5
Immigration trial courts issued three times more deportation orders for failure to appear in court than deportation orders for cases that were actually tried (993,593 ÷ 324,402) over the last 22 fiscal years. (See Figure 1.) On average, more than 45,000 people each year disappeared from court since 1996, making failures to appear the single greatest source of deportation orders in the immigration court system.6