Where are these immigrants ordered to be deported? Not in court

Immigration court in downtown Miami
Immigration court in downtown Miami El Nuevo Herald File

A former immigration judge in Miami has published a report saying that a dysfunctional immigration court system has contributed to an extraordinary increase in the number of foreign nationals who failed to show up at their hearings, then were ordered deported in absentia and may still be in the country.

Mark H. Metcalf, who served as immigration judge in Miami between 2005 and 2008, says in the report Courting Disaster, that there are almost one million immigrants with final orders of deportation who may not have left.

“American immigration courts have the highest failure to appear rates,” says Metcalf in the report released last month by the Center for Immigration Studies, an academic research group in Washington that seeks tighter immigration controls and is accused by some immigrant rights activists of being anti-immigrant.

“The point of the [report] is to show how U.S. immigration courts are not functioning right, in the interests of the United States as well as the interests of the people who appear before the courts,” Metcalf said in a telephone interview this month. “The findings are that over the last 20 years, 37 percent of all litigants who were free pending trial failed to show up for their hearings.”

The report reinforces a national concern that the American immigration system is defective, and that immigration courts are overwhelmed — with 542,000 backlogged cases today, a 300 percent increase over the 186,000 backlogged cases in 2008, he said.

The Executive Office for Immigration Review, which oversees immigration courts, declined to comment on Metcalf’s report.

“The Executive Office for Immigration Review does not comment on third-party reports,” an EOIR spokeswoman said in an e-mail message.

Metcalf’s findings are based on an analysis of immigration court and Department of Homeland Security statistics as well as interviews with about a dozen immigration judges across the country over the past year.

The main finding is the total number of immigrants who received deportation orders for failing to appear in court.

“Over the last 20 years, 37 percent of all aliens free pending trial failed to appear for their hearings,” Metcalf wrote. “From the 2,498,375 foreign nationals outside detention during their court proceedings, 1,219,959 were ordered removed, 75 percent of them (918,098) for failing to appear.”

Every year, Metcalf says, an average of nearly 46,000 immigrants in deportation proceedings do not appear for their court hearings and are deemed absconders after the judge issues a deportation order in absentia.

“Deportation orders for failure to appear are the largest group of orders issued by immigration courts outside detention facilities,” Metcalf said.

Immigration lawyers who litigate cases in immigration court agreed in general with Metcalf’s conclusions that the courts are overwhelmed by backlogs, but disagreed with his other findings about why immigrants don’t show up for hearings.

“I agree that immigration courts are dysfunctional because of terrible backlogs,” said Michelle Ortiz, deputy director of Miami-based Americans for Immigrant Justice which represents immigrants who cannot afford a private lawyer. “I do not believe that respondents’ failure to appear contribute to the dysfunction or the backlogs. Our experience tells us that the majority of respondents that do not attend their hearings is because they did not receive their notices to appear or did not understand the notice if it was received.”

 Ortiz also believes that many of the immigrants who have received deportation orders in absentia may still be in the country, but they are most likely to be deported quickly.

“Those with in absentia removal orders are often picked up by ICE [Immigration and Customs Enforcement]. as those with outstanding removal orders are most at risk of being targeted by immigration enforcement,” she said in an email.

Wilfredo Allen, another Miami immigration attorney who has had cases before Metcalf, added his own reasons for why some immigrants do not show up for court.

“The fear of being detained when you go to immigration court, plus the lack of providing the address correctly, play roles in people not showing up for their hearings,” Allen said. “Many of my Central American clients, once they were released from custody, their addresses changed and they never understood clearly their responsibility to maintain the immigration court apprised of their new addresses, and they did not get notices for the hearings. I have other clients who are criminal aliens and they were afraid to be detained, and they never appeared.”

For Metcalf, the evidence is clear.

“Absent enforcement,” Metcalf says in Courting Disaster, “has resulted in 953,506 violators unremoved years after their deportation orders were final, a 58 percent increase since 2002. “

This figure is similar, but distinct, from that of immigrants who received deportation orders for not appearing in court: 918,098.

Besides having been an immigration judge in Miami, Metcalf also worked at the Justice and Defense Departments under President George W. Bush.

In 2007, he figured in media reports about Monica Goodling, an assistant to then-Attorney General Alberto González. Goodling was accused of selecting some immigration judges and other officials partly on the basis of their loyalty to the Republican Party and the Bush administration, rather than their skills. Immigration lawyers who know Metcalf, however, said he acted professionally while serving as an immigration judge.

In his report, Metcalf also attributed many of the problems plaguing immigration courts to policies pursued during the previous administration of President Barack Obama.

“The system broke down under Mr. Obama’s watch,” Metcalf said in the interview. “That’s what happened.”