Is the Executive Office for Immigration Review incompetent — or is Trump hiding something?

The Transactional Records Access Clearinghouse (TRAC) is a Syracuse University research center that collects and analyzes data on immigration court activities. It gets the data with Freedom of Information Act (FOIA) requests that it submits regularly to the Department of Justice’s Executive Office for Immigration Review (EOIR). The TRAC research center is a reliable source of objective, factual information that is supported by numerous foundations, such as the Rockefeller Family Fund, the New York Times Company Foundation, the Carnegie Foundation and the Ford Foundation.

EOIR is a Justice Department office that includes a 466-judge immigration court, a Board of Immigration Appeals (BIA), an Office of Information Technology, an Office of Policy, and a General Counsel’s office.

EOIR records data on the activities of the immigration court and makes the data available to the public pursuant to the requirements in section 552(a) of FOIA. This includes a large batch of anonymized data about immigration court cases that EOIR prepares for TRAC’s monthly FOIA request.

TRAC revealed in a report it issued on Oct. 31, 2019, that EOIR was removing court records from its data. TRAC’s efforts to persuade EOIR to stop doing this and to replace the missing data have been unsuccessful.

First letter to EOIR

In a letter dated, Nov. 4, 2019, TRAC asked EOIR’s director, James McHenry, for a public acknowledgement that recent EOIR data releases were not complete and that thousands of records were missing.

A spokesperson for EOIR has claimed that EOIR does not delete records. According to the spokesperson, the missing records were withheld on the basis of a FOIA exemption.

But the missing records were included in previous releases. Moreover, when records are withheld because they are exempt from FOIA requests, EOIR is supposed to identify the information being removed and explain why it was exempt from disclosure, which EOIR did not do.

A comparison of the data in EOIR’s September 2019 release to its August 2019 release revealed that more than 1,500 relief applications that were in the August release were missing from the September release.

The missing data includes 17 different types of relief applications, including applications for adjustment of status, suspension of deportation, and asylum.

According to a report TRAC issued on Dec. 18, 2019, McHenry did not respond to the letter, but an EOIR representative assured TRAC that in the future, EOIR’s technology office would review immigration court data before it is released.

This was not the first time there has been a problem with EOIR immigration court data.

In 2002, the Supreme Court upheld the constitutionality of mandatory detention for criminal aliens on the basis of a record which included incorrect EOIR data that the Justice Department had submitted on how long criminal aliens were being detained. The fact that the Justice Department had submitted incorrect EOIR data to support its position wasn’t discovered until 14 years later — when the public obtained the underlying data through a FOIA request and identified the discrepancies.

On Aug. 26, 2016, the Solicitor General issued a formal letter to the Supreme Court apologizing for the submission of inaccurate data in the mandatory detention case.

Second letter to EOIR

In a letter dated Dec. 18, 2019, TRAC informed McHenry that the number of missing records was getting larger. Initially there were 1,507 missing relief applications in the September release; by December, there were 3,799.

TRAC asked McHenry to release the technology office’s findings from its review of missing records and to describe the steps EOIR was taking to ensure that the public will be provided with accurate and reliable data in the future.

McHenry did not respond.

In a June 3, 2020 report, TRAC concludes that the data it has received on asylum and other applications for relief through April 2020 are too unreliable to be meaningful — and it has stopped updating its public data on asylum. It also notes that data it has received and posted in recent months may not be accurate.

The number of relief applications that were included in the March 2020 data release but were missing in the April release rose to 68,282, and this is just the number of records that disappeared in a single month. It does not count the applications that disappeared previously.

EOIR’s escalating data problems should raise grave concerns in Congress, among policymakers and in the public at large who put their faith in federal agencies to provide complete and accurate information about their work.

In the words of the TRAC report: “The EOIR’s apparent reckless deletion of potentially irretrievable court records raises urgent concerns that without immediate intervention the agency’s sloppy data management practices could undermine its ability to manage itself, thwart external efforts at oversight, and leave the public in the dark about essential government activities.”

Third letter to EOIR

In a letter dated June 3, 2020, TRAC told McHenry that the problem of disappearing records is approaching a crisis point. Month after month, more records are disappearing from EOIR’s data releases.

The latest release, which covers records in EOIR’s database as of the end of April 2020, is missing 68,282 relief applications that were in the March 2020 release. More relief application records disappeared in that single month than all of the asylum applications the agency reported receiving in fiscal 2015, or in any prior year.

Why is this happening?

EOIR’s FOIA explanation is not persuasive.

The nine FOIA exemptions are listed in section 552(b), and it is apparent that they don’t apply to the anonymized immigration court records that EOIR has been submitting to TRAC.

Moreover, if EOIR really thought the data they were withdrawing was exempt, why did they include it in previous releases?

In any case, I agree with TRAC’s conclusion in its June report that EOIR’s apparently “reckless deletion of potentially irretrievable court records raises urgent concerns.”

The agency’s failure to produce coherent data in response to regular (and expected) FOIA requests is inexplicable. What’s more, it makes it more difficult to identify and correct problems the immigration court is having, it prevents congress from conducting meaningful oversight, and it makes it impossible for the public to know how well the immigration court system is actually functioning.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.