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A former federal immigration court judge charges the government manipulates statistics to minimize the percentage of illegal aliens who don’t show up for their court dates.

Mark Metcalf, who served in appointed positions in the Justice and Defense Departments during the George W. Bush administration, wrote in a backgrounder for the Center for Immigration Studies that never in 22 years of reporting has the Executive Office for Immigration Review “squared with Congress and given an accurate description of failures to appear.”

Metcalf, a judge on the Miami Immigration Court from 2005 to 2008, said that since 1996, the office has dramatically understated FTA (Failure to Appear) rates in its annual reports.

In 2017, the immigration office stated the FTA rate for all cases was 28 percent, “never mentioning this number includes aliens whose trials occurred in detention facilities.”

“In other words, EOIR calculates the FTA rate – or what it now calls the for all cases rate – by including those who could not evade court,” Metcalf wrote. “Yet over the last 22 years, court records show not even one deportation verdict for failure to appear was handed down in a detention facility.”

He said that instead of “a direct comparison of aliens free before trial who failed to attend court out of all aliens free before trial (n = x ÷ y), EOIR compares those who failed to appear to the much larger number of all those who were free before trial plus all those who were detained before trial (n = x ÷ (y + z)).”

“This comparison always yields a lower number than the actual failure to appear rate. By adding aliens in detention to its equation – persons who have no choice but to appear in court – EOIR enlarges the denominator and, by doing so, shrinks the value of the numerator,” Metcalf wrote.

“This skewed equation make failures to appear seem much lower than they really are,” his report said.

“The truth is something else. When accurate accounting is used, failure to appear rates in some years doubled the rates EOIR declared to Congress. EOIR stated the FTA rate was 19 percent in 2007, when the real number was 36 percent. In 2008, the courts stated that the FTA rate was 16 percent. Instead, it was 34 percent. In 2009, EOIR proudly declared failures to appear came in at 11 percent and noted it was the lowest number in five years. The real number was 26 percent. From 2010 to 2014, the same dynamic is present: actual FTA rates significantly exceeded those EOIR reported to Congress.”

He wrote: “EOIR’s misleading failure to appear rates leave Congress and the public ignorant of both dysfunction in the courtroom and risks that too often end badly. One fact stands out above all the rest: Aliens flee court in greater numbers now than they did before September 11, 2001. From 1996 through 2000, 34 percent of all aliens free before trial – 251,309 out of 730,453 – disappeared. After 9/11, these numbers climbed. From 2002 through 2017, 39 percent – 699,641 people out of 1,808,449 – failed to keep their court dates.”

He noted the results of his analysis: 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, he said, and 46 percent of all unaccompanied children disappeared from U.S. immigration courts from 2013 through 2017.

He said immigration courts report the highest failure-to-appear rates of any courts in the country.

“From 1996 through 2017, 37 percent of all aliens free pending trial disappeared. From the 2,680,598 foreign nationals that Immigration and Customs Enforcement 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.”

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