Sen. Jeff Flake says 90 percent of immigrants given court dates fail to show up

The surge of unaccompanied children at the U.S. border, primarily coming from Honduras, Guatemala and El Salvador, has overwhelmed the ability of the United States to handle their legal cases.

A law passed under President George W. Bush and aimed at curbing human trafficking requires that minors from Central America who reach the border must have their cases heard in court before they can be deported. Currently, children wait an average of 578 days before a hearing -- delays that are sure to lengthen if the flow of children continues unabated.

A substantial chunk of the $3.7 billion President Barack Obama is requesting in a supplemental spending bill for the border would be for increasing the courts’ ability to handle the caseload of newly arrived children.

In this context, Sen. Jeff Flake, R-Ariz., offered a notable statistic about the judicial treatment of people who arrive at the U.S. border. In a July 8, 2014, interview on the PBS News Hour, Flake outlined the risks of having large numbers of people released in the United States awaiting a hearing -- particularly the risk that they will fail to show up and boost the number of undocumented immigrants in the country.

"When these kids are handed off from the Border Patrol, (the government’s) role is to actually place those children in the care of a guardian or a family member," Flake said. "And then what the record shows is that they’re told to appear later in court, where their case will be adjudicated. But 90 percent of them, 90 percent, do not then show up in court later."

A reader called our attention to this, citing sharply conflicting data, so we decided to take a look.

The reader pointed us to a report from the Bipartisan Policy Center -- a think tank founded by former congressional leaders of both parties -- that cited figures far smaller than 90 percent.

The report used figures from the Executive Office for Immigration Review, which is tasked by the Justice Department with handling immigration court proceedings, appellate reviews and administrative hearings. Between 2003 and 2012, the percentage of all immigrants who failed to appear in court after being released has bounced between 20 percent and 40 percent, settling in at about 30 percent at the end of that time span. (No data for children specifically is available from this long-running data set.)

That’s substantially lower than the 90 percent figure Flake cited.

Meanwhile, in a July 10 hearing of the Senate Appropriations Committee -- which was held two days after Flake’s remarks on PBS -- Juan P. Osuna, the director of the Executive Office for Immigration Review, told the panel that his department estimates that 46 percent of children currently fail to show up for their date in court. He told lawmakers that any other numbers are "incorrect."

We checked with immigration policy experts to see whether the federal statistics or Flake’s estimate seemed more accurate, and they agreed that the federal statistics jibed with their long-term understanding of the issue.

"I’m not aware of data that shows a 90 percent no-show rate," said Marc R. Rosenblum, deputy director of the Migration Policy Institute’s U.S. Immigration Policy Program. He added that the long-term range of 20 percent to 40 percent matches what the VERA Institute found between 1997 and 2000 when it studied the issue on a federal contract to track individual immigration cases.

The Bipartisan Policy Center also expressed skepticism about the 90 percent figure. "Based on the federal data we’ve seen, we know that between 2008 and 2012, about 70 to 80 percent of all immigrants showed up for their court appearance," said Rosemarie Calabro Tully, a spokeswoman for the group. She later passed us the estimate Osuna gave to the Senate committee.

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When we contacted Flake’s office, they said the senator’s source for the statistic was a comment by House Judiciary Chairman Bob Goodlatte, R-Va., at a media breakfast sponsored by the Christian Science Monitor on June 26. The Monitor didn’t print a direct quote, but here’s an excerpt from the article: "Right now, (Goodlatte) said, the law does not allow minors to be held in a facility, so they are released to relatives or foster care, and then given a court date to reappear. More than 90 percent do not return, he said."

So we contacted Goodlatte’s office. Goodlatte’s office said that while visiting the McAllen Border Patrol Station in the Rio Grande Valley in July, Goodlatte heard from Border Patrol agents that only 26 percent of those who were detained failed to show up for removal proceedings. They said officials didn’t give a percentage for those who had been released and failed to appear.

They cited an article in Newsmax, a conservative online publication, that cited an anonymous "senior Los Angeles County Sheriff's detective who routinely deals with illegal immigrants" who said a "massive number — 80 to 90 percent" do not show up for deportation hearings. However, Goodlatte’s office acknowledged this was anecdotal evidence.

Goodlatte's office also noted that there is already significant pool of immigrants whose final deportation has been ordered but not carried out. At least 858,779 non-detained aliens are deportable but haven’t been deported, many of whom are now off the radar of the authorities, according to calculations by the Center for Immigration Studies based on federal data. This is a related and notable issue, but somewhat different from what Flake or Goodlatte said.

Experts we checked with did note a caveat: There’s no way of knowing if the current group of new arrivals will behave differently in regard to court appearances than their predecessors have. Indeed, due the backlog, it is unlikely that many of the minors apprehended in 2013 or 2014 have had their court date come up yet, and until their court appearance is complete, the government won’t know how many end up coming and how many fail to appear.  

Our ruling

Flake said that when undocumented children are picked up at the border and "told to appear later in court ... 90 percent do not then show up."

Historically, the rate has ranged between 20 percent to 40 percent, settling in at about 30 percent in 2012, the most recent full year for which data is available. A more recent estimate for children specifically, made by the director of the office responsible for handling such cases, is that the current no-show rate for children is 46 percent. That’s still quite high, but it’s only half what Flake said. We rate the claim False.