According to data from December 2021, approximately 1.6 million Americans are stuck in an increasing backlog at the United States Immigration Court. Those with open immigration cases must now wait for a decision determining their legal status for an average of 58 months—nearly five years.
The wait times for immigration court cases has increased in length over the past decade. However, the deluge with new cases between October 2021 and December 2021 substantially increased the time it took to process.Transactional Records Access Clearinghouse – Syracuse University’s research organization that obtained the figures from Freedom of Information Act requests. TThe backlog grew by almost 140,000 in that time frame, which is the highest growth rate on record. It was the direct result of an increase in arrests at agencies under the Department of Homeland Security.
“This is an enormous problem that’s facing the country,” says Susan Long, co-director of TRAC and a professor of managerial statistics at Syracuse. “The system is not working well.”
In September, DHS announced it would change its priorities for immigration enforcement, focusing on arresting immigrants that pose a “threat to our national security, public safety, and border security.” But that new directive wasn’t implemented until November 29 and the period just prior saw an extraordinary spike in new arrests. Only 1% of the new cases that ICE or CBP brought in October 2021 were related to alleged criminal activities.
COVID-19 is also contributing to this backlog. Since March 2020, court shut downs have decreased the amount of decisions and hearings across the country.
DHS did not comment on TRAC data. A spokesperson for the Department of Justice’s Executive Office of Immigration Review (EOIR), which oversees the immigration court system, said courts have been relying on technology to continue operations, but blamed the on-going pandemic for the worsening backlog.
Problems that have been brewing for more than 10 years
The U.S. Immigration Court Backlog was approximately 200,000 cases in 2009. TRAC data shows that those who had open immigration cases had to await a decision for their legal status for approximately 14.5 month. According to TRAC, back then an immigration judge presided over approximately 69 hearings per week.
The backlog is getting longer over the past years. There is a reason why the backlog has gotten longer. One of the reasons is that there are more immigration cases than ever before. The Trump and Obama Administrations both issued millions of deportation order. Since 2008, the number of people seeking asylum has increased nearly 2000%.
EOIR is not able to hire enough immigration judges in order to meet the increasing number of cases. The 2019 median judge caseload was 3,005. Each year, some judges handled more than 4000 cases. In Houston, one judge’s caseload exceeded 9,000.
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Long believes that the only way to solve the problem is for existing immigration judges not to be more efficient or quicker. EOIR needs to hire more judges and expand IT and administrative support personnel, as well as increase courtroom space. TEOIR is a tool to address the backlog of immigration court cases. will need “gigantically more resources,” she says.
Rethinking the entire system from scratch
Deep systemic reforms are required to address the backlog. While both the Obama and Biden Administrations changed their priorities for immigration enforcement to focus on those with criminal histories, it’s unclear if such reprioritization will impact caseloads overwhelming the courts. The immigration court backlog grew even after the Obama Administration altered its priority for immigration enforcement.
In May 2021, DHS and the Justice Department announced a “dedicated docket” to serve families who crossed into the U.S. between ports of entry on or after May 28, 2021. The new docket promised expedited decision times—a judge in one of 10 cities would decide the case within 300 days of the family’s hearing, according to the announcement.
The dedicated docket was created to reduce the backlog of newly-arrived families. However, the systemic failings in work were not taken into consideration by immigration lawyers, advocates organizations, and elected officials. They criticized the new docket as “premised on the faulty assumption that the ten cities selected for this proposal have excess or spare capacity to provide legal representation.” Both the Obama and Trump Administrations also tried but failed to implement similar fast-tracked dockets.
“There’s a long, long laundry list of things that have been tried in the past,” Long says. “It’s not going to be a quick fix.”