Declaration of Rena Cutlip-Mason — East Bay Sanctuary v. Trump

Summary

Rena Cutlip-Mason, Chief of Programs of The Tahirih Justice Center and former Counsel to the Director at the Executive Office for Immigration Review (EOIR), states that EOIR's "in absentia rate" divides in absentia removal orders by "initial case completions" (41,384 over 149,436, or 28%, in Fiscal Year 2017), leaves out administrative closures (counting the 53,736 of 2016 would cut that year's rate from 26% to 18%) and keeps orders later rescinded. The declaration, filed 11/16/18 in East Bay Sanctuary v. Trump, says the interim final rule's "about 38%" figure for Northern Triangle nationals rests on 7,919 in absentia orders in FY 2018, which it puts at 16.7% of the at least 47,507 people who passed credible fear interviews.

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Case 4:18-cv-06810-JST   Document 35-2   Filed 11/16/18   Page 1 of 6
1. I, Rena Cutlip-Mason, make the following declaration based on my
personal knowledge and declare under the penalty of perjury pursuant to 28 U.S.C.
§ 1746 that the following is true and correct.

2. I am the Chief of Programs of The Tahirih Justice Center, a nonprofit
and non-partisan organization whose mission is to protect courageous immigrant
women and girls who refuse to be victims of violence. From January 2015
through May 2017, I was Counsel to the Director at the Department of Justice,
Executive Office for Immigration Review (EOIR); and from June 2017 —
December 2017 I was Associate General Counsel in the Office of General Counsel
at EOIR.

2. In my positions at EOIR I regularly worked with and reviewed EOIR
data. This includes data on the number of in absentia orders of removal issued by
immigration judges each year, and in particular on the in absentia rates published
by EOIR in its Statistics Yearbooks.

4. While not professionally trained in statistics, I am familiar with the
methodology that EOIR uses to calculate what it calls “the in absentia rate.” In my
professional opinion this “rate” does not accurately reflect the number of
individuals who do not appear at an immigration court hearing. Because the
interim final rule entitled “Aliens Subject to a Bar on Entry under Certain
Presidential Proclamations; Procedures for Protection Claims” relies on EOIR’s
methodology, it misstates the flight risk for individuals who are apprehended after
crossing the U.S.-Mexico border between ports of entry.

5. When a respondent fails to appear for removal proceedings after
receiving written notice, the presiding immigration judge may order that the
respondent be “removed in absentia.” 8 U.S.C. § 1229a(b)(5)(A). A respondent
ordered removed in absentia may move to reopen his or her case (rescinding the

“in absentia” order of removal) within 180 days if the failure to appear was due to
Case 4:18-cv-06810-JST   Document 35-2   Filed 11/16/18   Page 2 of 6
“exceptional circumstances,” or, if the respondent did not receive proper notice of
the hearing, at any time. 8 U.S.C. § 1229a(b)(5)(C).

6. In its yearly Statistics Yearbooks, EOIR publishes an “in absentia
rate.” Importantly, the in absentia “rate” EOIR publishes is not a substitute for an
attendance rate, and does not represent the rate at which individuals fail to appear
in court.

How EOIR Calculates “In Absentia Rates”

& EOIR calculates its in absentia rate by dividing the number of
individuals ordered removed in absentia in any given fiscal year by the number of
“initial case completions” in any given fiscal year. See EOIR, Statistics Yearbook
Fiscal Year 2017, at 33 (2018) (defining in absentia rate as “the proportion of all
[immigration judge] decisions at the [initial case completion] where the removal
order is issued in absentia’).

8. EOIR defines an “initial case completion” as the “first dispositive
decision rendered by an immigration judge.” This could be a decision made by an
immigration judge that resolves the case, whether it be a decision granting relief
from removal, an order of removal, or a decision granting a motion to terminate the
case. See id. at 7.

9. Thus, in Fiscal Year 2017, there were 41,384 in absentia orders of
removal which, when divided by 149,436 initial case completions, produces an in

absentia rate of 28%. Id. at 34.

The Many Methodological Flaws of EOIR’s “In Absentia Rates”

10. EQOIR’s methodology fails to establish an accurate rate of applicants
failing to appear for at least three reasons. First, EOIR does not consider a grant of
administrative closure to be an “initial case completion.” Jd. Administrative

closure has long been a docket management tool in which a case is indefinitely
Case 4:18-cv-06810-JST   Document 35-2   Filed 11/16/18   Page 3 of 6
removed from the docket. Under the Obama administration, administrative closure
was used as a primary method of prosecutorial discretion. From Fiscal Year 2013
to Fiscal Year 2016, over 160,000 cases were administratively closed. /d. at 15.
Because EOIR does not consider administrative closure to be an “initial case
completion,” these cases are entirely excluded from the calculation of “in absentia”
rates. This significantly distorts the “in absentia” rate. For example, in 2016, there
were 32,755 “in absentia” orders, 128,145 initial case completions, and 53,736
administrative closures. Using EOIR’s method of calculation, the “in absentia rate”
was 26%. If administrative closures were considered as initial case completions,
the “in absentia rate” would have been only 18%.

11. Second, EOIR does not consider whether an order of removal in
absentia was subsequently rescinded when calculating the “in absentia rate.” Even
when a respondent successfully reopens her removal proceedings, EOIR still
includes the respondent in its calculation of the in absentia rate. The Transactional
Records Access Clearinghouse, an organization which publishes monthly statistics
relating to immigration court proceedings, has criticized this methodological
decision as “quite inappropriate.” See TRAC Immigration, What Happens When
Individuals Are Released on Bond in Immigration Court Proceedings, n7 (2016),
available at http://trac.syr.edu/immigration/reports/43 8/. According to TRAC,
reclassifying individuals who successfully reopened proceedings following a
removal order in absentia “significantly impacts and reduces [EOIR’s] calculated
rates.”

12. Third, EOIR’s use of “initial case completions” as a denominator has
artificially increased its in absentia rate as the immigration court backlog has risen
over the past decade. Individuals who appear for scheduled removal hearings but
are then asked to return for a later hearing are not considered in EOIR’s calculation

of the in absentia rate. As more and more people are scheduled to appear in court,
Case 4:18-cv-06810-JST   Document 35-2   Filed 11/16/18   Page 4 of 6
the raw number of people ordered removed in absentia will rise even if the
percentage of people failing to appear remains the same. If the raw number of case
completions does not rise at the same time, EOIR’s in absentia rate will artificially
increase. |

13. This is exactly what has happened over the past decade. In 2008, there
were roughly 186,000 cases pending at the end of year. By the end of 2017, there
were over 650,000 pending cases, a 250% increase. As the raw number of people
placed in removal proceedings grew, so too did the number of people ordered
removed in absentia, although at a significantly lower rate. In 2008, there were
29,854 people ordered removed in absentia, compared to 41,384 removed in
absentia in 2017, an increase of only 39%.

14. During the same time period, “initial case completions” fell
significantly, both as a result of the increased numbers of administrative closures
(which, as noted above, are not considered by EOIR to be case completions) and
because the increase in time-consuming asylum applications appears to have

lowered adjudicative capacity.

Table 1: As Initial Case Completions Stagnate, EOIR's “In Absentia
Rate Rises” Along With Administrative Closures and Court Backlogs

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Case 4:18-cv-06810-JST   Document 35-2   Filed 11/16/18   Page 5 of 6
15. As Table 1 demonstrates, over the past five years the numerator in
EOIR’s “in absentia” calculation has risen primarily as a result of the total case
volume, while the denominator of initial case completions has fallen. This has led
to the appearance of rising “in absentia” rates despite the complete lack of actual
evidence that respondents are failing to appear at higher rates. While no single
factor can explain the rise of EOIR’s in absentia rates, taken together it is clear that
these rates do not accurately reflect the actual rates at which applicants fail to

appear..

The Interim Final Rule Relies on EOIR’s Misguided Methodology

16. The IFR relies on EOIR’s methodology to calculate in absentia rates
for individuals who were placed in immigration court proceedings. In doing so,
DHS and EOIR fundamentally misrepresent the actual rate at which asylum
seekers fail to appear in court, making it appear substantially higher than it actually
is.

17. For example, on page 51 of the interim final rule, the IFR relies on
EOIR data, see IFR footnote 10, to claim that in FY 201 8, “about 38%” of
noncitizens from Northern Triangle countries who passed credible fear interviews
were ordered removed in absentia. The government’s misunderstanding of this data
is made clear when, in the very next sentence, the agency declares that when “put
differently,” its data indicates that “over a third” of nationals from Northern
Triangle countries “who claimed a fear of persecution ... did not appear at section
240 proceedings.”

18. In reality, the data referenced in the IFR shows only that there were

7,919 orders of removal in absentia in F Y 2018 for individuals from Northern
Case 4:18-cv-06810-JST   Document 35-2   Filed 11/16/18   Page 6 of 6
f6

Triangle countries who passed credible fear interviews, see IFR footnote 10, and
that in FY 2018, immigration Judges produced 20,784 “initial case completions”
involving individuals from Northern Triangle countries, see IFR at 5]. Contrary to
government’s argument, this information does not reflect the percentage of
individuals who failed to appear for a scheduled removal hearing.

19. The data included in the IFR does not account for the number of
individuals whose cases were administratively closed in the same time period. This
artificially increases the in absentia rate presented in the IFR.

20. The data included in the IFR also does not account for individuals
who were ordered removed in absentia and who successfully reopened their cases.
This also artificially increases the “in absentia rate” presented in the IFR.

21. In addition, the data included in the IFR does not account for
individuals who appeared for a scheduled removal hearing and whose cases did not
result in a completion. As the government admits, in FY 2018 there were at least
47,507 individuals from Northern Triangle nations who passed credible fear
interviews and were placed in removal proceedings, see IFR at 52, yet only 7,919
were ordered removed in absentia that year, only 16.7% of total cases, see IFR
footnote 10.

22. By relying on EOIR’s “initial case completion” methodology, the

from court proceedings. As shown above, these statistics simply do not reflect

what the government claims that they do.

EXECUTED this/6 day of November, 20

Rena Cutlip-Mason


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