Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Co-Director
TRAC
Co-Director
TRAC
EOIR Director McHenry Replies To TRAC’s Letters But Ignores Agency’s Data Troubles
Despite TRAC’s appeals to the EOIR, Immigration Court records continue to disappear each month. This is unfortunately still the case with EOIR’s latest data release. Yesterday, June 15, we finally received a letter from EOIR Director James McHenry in response. But instead of addressing the obvious serious data management problems at EOIR, Director McHenry denied there were any problems and attacked TRAC’s motives for spreading what he claims are falsehoods about the agency.
Background
TRAC initially reported 1,507 missing applications for relief in our October 2019 report, which grew to 3,799 missing applications the following month. We wrote EOIR Director James McHenry providing a copy of the 1,507 missing applications asking for answers on why these records were missing from their files. We wrote again when the number of missing applications more than doubled the following month. Not only did we provide substantive evidence of the issues, we also repeatedly reassured the administration that we stood ready to work with them to fully resolve the underlying issues. These letters were met with silence. Not only have these particular cases disappeared entirely, they have not been restored in any subsequent data releases including the latest data TRAC received last week.
Alarmingly, the data from EOIR for April 2020 on asylum and other applications for relief to the Immigration Courts was missing an even larger
https://trac.syr.edu/immigration/reports/614/ Page 1 of 4
EOIR Director McHenry Replies To TRAC’s Letters But Ignores Agency Data Troubles 6/16/20, 4:29 PM
number of records—so large, in fact, that TRAC ceased publishing this information on our website and recommended the public be cautious in relying on EOIR asylum statistics until these problems were corrected. TRAC published those findings on June 3, 2020.
The Good and The Bad: EOIR’s Latest Data Release
Late on Friday, June 5, after normal business hours, EOIR sent a brief email acknowledging that data the agency had provided TRAC was, as TRAC had reported two days earlier, not usable. The problem was attributed to a “scripting error”—that is, problems made in the computer code that the EOIR’s Office of Information Technology had developed. A “corrected” version of the data was posted, shortly followed by EOIR’s regular monthly release with updated data through May 2020.
The good news is that TRAC has confirmed that the large number of asylum and other applications that had disappeared from the April shipment were now included in the May release. The bad news is that EOIR did not fix the underlying problem. Yet again, thousands of records that had been present in the April shipment were now missing. And the disappearing records from prior months, including the 1,507 missing asylum and other application for relief that TRAC first wrote about back last fall, continued to be missing from this latest release.
Even setting aside the issue of missing records, the persisting problem of computer processing malfunctions remains very troubling. Fixing one computer processing glitch after another does not address this larger systemic problem. Why do basic programming errors that lead to countless additional data errors keep reoccurring month after month in data and reports the agency publishes? Why aren’t these caught earlier and corrected before any data and statistics are released? The agency has yet
https://trac.syr.edu/immigration/reports/614/ Page 2 of 4
EOIR Director McHenry Replies To TRAC’s Letters But Ignores Agency Data Troubles 6/16/20, 4:29 PM
to address these questions.
EOIR Director McHenry Responds
At the same time we published our June 3 report, we wrote a third letter to EOIR Director McHenry expressing our concern and seeking a commitment from him to take the steps needed to address these problems. We assured Director McHenry again that we would be more than happy to work cooperatively with the agency to help them better ensure that going forward the public is provided with more accurate and reliable data about the Immigration Court’s operations.
This Monday we received a response from Director McHenry. His response is available here. Rather than addressing the real issues concerning the agency’s continuing data management problems, Director McHenry attacked our motives for alleging that the agency had any problems and further claimed that TRAC knew our statements to be untrue but had made them anyway.
Director McHenry also falsely alleged that TRAC wanted “to obtain all sensitive, identifying information” in EOIR data about particular immigrants in court proceedings. Nothing could be farther from the truth. Our requests have been limited to anonymized data. Indeed, EOIR publicly posts the monthly data TRAC receives on its own website.
In fact, due to the agency’s computer management problems, in March 2020 the agency posted data online which the agency itself intended to withhold. It was TRAC—not the EOIR—who uncovered this mistake and alerted agency officials.
Why did the EOIR post data online that it intended to withhold? Again it was the same underlying problem: deficiencies in EOIR data management
https://trac.syr.edu/immigration/reports/614/ Page 3 of 4
EOIR Director McHenry Replies To TRAC’s Letters But Ignores Agency Data Troubles 6/16/20, 4:29 PM
processes mistakenly allowed the public posting of information on tens of thousands of immigrants the agency had sought to redact. Once again basic checks were not in place to verify that their programs had functioned properly so no one at the agency had caught these mistakes before the data was distributed.
What Comes Next?
TRAC has been asked to refer any future issues to EOIR Chief Management Officer Kate Sheehey. TRAC’s co-director had an initial phone conversation with her last Friday, June 12. TRAC asked Director Sheehey to find out why month after month more records keep permanently disappearing from EOIR’s data. She has promised to look into this and provide answers. TRAC will continue to keep the public informed on any future developments.
*********
Director
Susan B. Long
Co-Director, TRAC and
Associate Professor
Martin J. Whitman School of Management Syracuse University
721 University Avenue
Syracuse, New York 13244
David Burnham
Co-Director, TRAC and
Associate Research Professor
S.I. Newhouse School of Public Communications Syracuse University
215 University Place
Syracuse, New York 13244
Dear Professors Long and Burnham:
U.S. Department of Justice
Executive Office for Immigration Review
Office of Director
5107 Leesburg Pike, Suite 2600 Falls Church, Virginia 22041
June 12, 2020
This letter responds to your letter dated June 3, 2020, and to your previous letters dated November 4, 2019, and December 18, 2019, respectively.
As you are aware, EOIR has committed to an unprecedented data transparency initiative over the past two years, including the monthly posting of data from its Case Access System for EOIR (CASE) database pursuant to the Freedom of Information Act (FOIA). As you are also aware, EOIR does not delete data from CASE in the sense that you have repeatedly alleged. As EOIR has explained to you previously, data that you allege has been “deleted” actually reflects either real-time updates to information in CASE, technological errors in the extraction and posting of the data which have been corrected, or data that was appropriately withheld from disclosure pursuant to FOIA.
Because you know that EOIR does not delete data, I can only speculate as to your motives for continuing to publicly accuse EOIR’s hardworking and conscientious career personnel in the Office of the Chief Immigration Judge (OCIJ), the Office of Information Technology (OIT), and the FOIA Unit of malfeasance. Moreover, your apparent desire to obtain all sensitive, identifying information in CASE related to specific cases of aliens in immigration proceedings—including aliens with particular types of
Letter to Professors Susan B. Long and David Burnham Page 2
claims subject to protection from disclosure under FOIA—is perplexing. Nevertheless, regardless of your motivation, your inflammatory and inaccurate accusations do nothing to advance our mutual goals of improving the availability of reliable data to inform decision-making in the immigration sphere.
In light of your continued disparagement of the employees within OCIJ, OIT, and the FOIA Unit, I have asked Chief Management Officer Kate Sheehey to address any future issues that you raise with the monthly data release under FOIA. Please direct any future comments or inquiries to her.
cc: Kate Sheehey, Chief Management Officer
Sincerely,
JAMES MCHENRY
Digitally signed by JAMES MCHENRY
Date: 2020.06.12 16:43:24 -04’00’
James R. McHenry III Director
****************
While nobody is infallible, TRAC is a well-respected independent source of statistics and nonpartisan analysis.
EOIR, on the other hand, is a highly partisan mismanaged charade of a court system dedicated to carrying out the DOJ’s anti-asylum, anti-immigrant agenda.
Recently, the DOJ’s own independent watchdog exposed the incompetent handling of the funding for court interpreters that directly diminished due process for those appearing before EOIR. https://immigrationcourtside.com/2020/06/10/%e2%98%a0%ef%b8%8f%f0%9f%a4%a1%f0%9f%a5%b5kakistocracy-korner-w-eyore-tal-kopan-sf-chron-tanvi-misra-roll-call-report-on-our-anti-heros-latest-adventures-in-fraud-waste-abuse-a/
Additionally, the Congressional Hispanic Caucus has written to McHenry expressing grave concerns about EOIR’s data management practices (or lack thereof). https://chc.house.gov/media-center/press-releases/congressional-hispanic-caucus-demands-trump-administration-explain
Who ya gonna believe? No contest!
This also provides insights into why, after two decades of failed efforts and squandered taxpayer funds, EOIR failed to deliver on a functional nationwide e-filing system. It also helps explain how the already overwhelming docket backlog has more than doubled even with nearly twice as many judges under the “malicious incompetence” of the Trump DOJ.
But, this “gang that can’t shoot straight” had time to develop ridiculously unneeded and counterproductive “Immigration Judge Dashboards” that nobody except politicos wanted, to keep the pressure on judges to deny due process and deny asylum. They also had time to set up a totally unneeded “Office of Policy” under the Director and to disembowel the Office of Legal Assistance Programs, one of the few functional parts of EOIR “management” whose projects once long ago actually helped to reduce backlogs while promoting due process. The Office of Policy duplicates functions that formerly were adequately performed by the Office of General Counsel.
EOIR has always had a problem of too many positions and too much funding devoted to Headquarters in Falls Church rather than to the courts in the field. But, under the Trump kakistocracy the problem has become an epidemic. EOIR management has been used to exert improper political control over the quasi-judicial process and to interfere in independent decision making and due process. But, it’s been totally “MIA” in providing the basic apolitical professional administrative services needed by the judges and the public they are supposed to be serving (but aren’t right now under an Administration that has open contempt for due process, service to the public, and the immigrant community).
An independent Article I Court is the only solution! Competent administrative services dedicated to promoting full due process with efficiency and top notch public service is a prerequisite for any type of meaningful backlog reduction. As long as “Aimless Docket Reshuffling” and mismanagement rule, the backlog will continue to grow by leaps and bounds. But, because of chronically unreliable EOIR statistics and record keeping, we might never know the true extent of the court backlog. You can bet, however, that’s it’s now considerably more than the previously reported 1.4 million “on docket plus waiting to be recalendared” mess.
Maybe, rather than “shooting the messengers,” EOIR should enlist the assistance of true experts and statisticians to help fix the current broken system!
Due Process Forever!
PWS
06-17-20