Most people released by immigration authorities do attend their court hearings

In a hearing over the Department of Homeland Security’s budget, Sen. James Lankford, R-Okla., asked Homeland Secretary Alejandro Mayorkas about DHS’s capacity to detain immigrants entering the country illegally at the southern border. 

Mayorkas said detention capacity is limited, but authorities hold certain people if there is a belief that they will not show up to their court hearings.

Lankford replied: "You say detention is used when you’re not sure if they’re going to show up for hearings. The vast majority of individuals that we’re releasing out are not showing up for hearings."

Mayorkas pushed back, saying he "would respectfully disagree" with Lankford because "the data evidence is that the majority of people show up for their hearings."

We reached out to Lankford’s office — and to DHS — for their respective data but did not hear back. We also sought information from the Executive Office for Immigration Review within the Department of Justice but did not get a response. That office is responsible for adjudicating the immigration cases of people placed in deportation proceedings.

Debate on whether immigrants show up to their hearings is not new. The ways of measuring this number vary, but regardless of the metric, the numbers show a majority of immigrants do show up to their hearings. 

Immigrants apprehended at U.S. borders receive from DHS a Notice to Appear, a charging document that explains why the U.S. government seeks to deport them.

Immigrants who receive a Notice to Appear are either placed in detention or released. Due to limited detention space, immigration authorities generally release people they believe don’t pose a threat to public safety and are likely to show up to their court hearings. 

People who are released can travel to their final destination in the U.S. while they await their hearings, according to Jessica Bolter, a policy analyst at the nonpartisan Migration Policy Institute. 

During their first hearing, immigrants can tell a judge whether they will contest removal and seek a form of relief, like asylum. It can take years and multiple hearings before a person gets a final decision.

If an immigrant fails to show up to any hearing, the immigration judge can issue what is known as an in absentia removal order. This means the immigrant is ordered to be deported without being present in court. For the most part, in absentia cases occur with non-detained immigrants because DHS is responsible for ensuring detained immigrants show up to all their hearings. 

The Justice Department’s Executive Office for Immigration Review publishes immigration court data, including what’s known as the "in absentia rate." To get this number per fiscal year, the government divides the number of in absentia cases by the total number of cases completed that year. 

The in absentia rate for fiscal year 2021 was 10%; for the first quarter of 2022, October to December 2021, it was 18%. Court closures due to COVID-19 meant some hearings were postponed. Because non-detained immigrants weren’t scheduled to show up to court, the in absentia rate went down from 2020 to 2021.

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"It’s true that data show that the majority of people show up for their hearings," Bolter told PolitiFact via email. "And even more do so when they are represented." 

Overall, the government data do not support Lankford’s claim that "the vast majority" of people released from immigration custody "are not showing up for hearings."

The way that the Justice Department’s office calculates the in absentia rate does not take into account cases that are pending completion or administrative closure cases, where immigration judges move non-priority cases to the court’s inactive docket indefinitely.

Some experts say that leaving these cases out of the calculation leads to a higher in absentia rate that can be misleading. That’s because in absentia cases are completed faster than cases in which an immigrant shows up to multiple hearings, according to Bolter. 

An immigrant might show up to multiple hearings in a year, but if the case is not completed during that year, they will not be included in the in absentia rate calculation. On the other hand, if an immigrant doesn’t show up to one hearing that case could be quickly completed with an in absentia removal order, which would be included in the rate as a no-show.

Cases are now taking even longer to complete due to the increasing backlog, now at 1.6 million cases. As the backlog grows, cases stay pending for longer.

A 2020 study by the University of Pennsylvania measured the in absentia rate taking into consideration administrative closures and pending cases. Under either of these scenarios, the rate of immigrants who showed up to court still outweighed those who did not. 

Between 2008 and 2018, about 66% to 83% of immigrants released from custody attended their court hearings, according to the study.

Andrew Arthur at the Center for Immigration Studies, a think tank that favors low immigration levels, disputed the study’s ways of calculating the in absentia rate.

These methods inflate the denominator by including administrative closures and pending cases, he said, making the in absentia rate appear lower. 

"At best, calculating in absentia rates is an art, not a science," Arthur said. "Because of course, it's always going to be a moving target." 

Lankford said "the vast majority of individuals that we’re releasing out are not showing up for hearings."

There are different ways to track how many immigrants don’t show up to immigration court hearings, and all indicate that a majority of immigrants, including those who are not detained, do attend their hearings. Data from the Justice Department show that in fiscal year 2021 and during the first quarter of 2022, most immigrants attended their hearings.

We rate Lankford’s claim False.