Last week, the Justice Department released statistics about the workload of the nation’s immigration court system in fiscal year 2014. U.S. Dep’t of Justice, Executive Office for Immigration Review, FY 2014 Statistical Yearbook (March 2015). There’s a wealth of interesting data to mine in this report, released annually, but I’m going to highlight a few strands of particular relevance to crimmigrationistas: the role of detention and representation in immigration court proceedings.

Reflecting its role in immigration law enforcement generally, detention played a significant role in the immigration courts’ workload in FY 2014. Of the cases completed that year, 37% involved detained migrants. Id. at G1 fig.11. Many detained migrants are subsequently released, of course, pending removal proceedings. The report doesn’t indicate how many were released. It does state, however, that among those who were released from detention, 10,630 were later ordered removed in absentia. This is an increase from the previous year’s 9,355 in absentia removal orders and FY 2012’s 7,700. Id. at P3 fig.25. I can’t speculate on what might explain this growth. It’s worth noting, though, that in absentia orders are issued on notoriously flimsy grounds. Immigration judges regularly issue in absentia orders when DHS has mailed Notices to Appear to old addresses or when migrants have failed to show up for perfectly sound reasons—emergencies or illnesses—but have been unable to obtain a continuance.

The report also provided some important information about the rate of representation in removal proceedings. The Immigration and Nationality Act provides that migrants in removal proceedings “shall have the privilege of being represented, at no expense to the Government.” INA § 240(b)(4). This translates into a right to hire counsel, but not to appointed counsel even if unable to pay for one. As a result, historically many migrants facing removal have navigated immigration court without attorneys. In FY 2014, 45% (75,570) did so. Only 55% (92,204 individuals) were represented. That rate of represented migrants dropped from the previous year’s 59% (101,740 individuals). EOIR, FY 2014 Statistical Yearbook at F1 fig.10.

As with in absentia orders, it’s unclear to me why the representation rate dropped in FY 2014, but this is a worrying trend that deserves being watched in coming years. Importantly, these data don’t disclose the representation rate for detained migrants. That’s usually well below the rate for non-detained migrants—detention, not surprisingly, makes finding and keeping representation much tougher. The Justice Department, sadly, has failed to provide us with any insight about how those migrants are faring.

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