Our immigration courts are in crisis — and it’s making it impossible to secure our borders 

The Biden administration claims its ability to secure the border has been impaired by Congress’s failure to pass comprehensive immigration reform, but that it has done what it could to build a safe, orderly and humane immigration system.  

In reality, the administration caused a border crisis by releasing unprecedented numbers of undocumented migrants into the country — and Congress can’t fix that.  

This has resulted in an immigration court backlog that is so large it severely limits the court’s ability to adjudicate asylum applications, with some migrants waiting as long as 10 years for a hearing. The right to apply for asylum is meaningless if the immigration court can’t adjudicate their applications.  

The backlog also severely limits the court’s ability to conduct removal proceedings. Illegal border crossers are essentially safe from deportation once they have reached the interior of the country, and they can keep trying until they succeed.  

It will not be possible to secure the border until this backlog crisis is ended, and that can’t be done by simply reducing the number of new asylum seekers.  

Catch and release and lawful pathways 

The Border Patrol has apprehended 5,815,600 illegal crossers since the beginning of Biden’s presidency, and it released more than 2 million of them.  

The administration also has created legal pathways to offer migrants an alternative to making an illegal crossing.  

The main path is an expanded version of the previous administration’s CBP One mobile application program, which permits undocumented migrants to schedule an appointment to present themselves for inspection at a designated port of entry. From January 2023 through September, 225,000 undocumented immigrants were interviewed and 99.7 percent of them were admitted.  

Currently, around 1,600 migrants a day are being processed and released under this program. 

The administration also offers humanitarian parole to nationals of Venezuela, Cuba, Nicaragua and Haiti who have a financial supporter in the United States. This program paroles up to 30,000 migrants per month into the United States.  

Most of these migrants file affirmative asylum applications at the USCIS Asylum Office. The applications are called “affirmative” because the applicants are not in removal proceedings. Asylum applications in removal proceedings are “defensive” because an asylum grant will prevent the applicant from being deported.  

Backlogs 

As of Sept. 19, 2023, the asylum office had a backlog of 1 million affirmative asylum cases, and it only has 760 working officers — 72 fewer than in December 2022. In his 2023 Annual Report to Congress, the CIS ombudsman states that affirmative asylum processing times are likely to reach a decade. 

According to TRAC Immigration, the growth of the backlog has been accelerating at a breakneck pace since the start of the Biden administration, which has buried the immigration court in an avalanche of cases. As of the end of October 2023, it was at 2,930,934 cases. This is more than double the number when Biden began his presidency. 

The immigration court has more than 700 judges and the administration has requested funding for 375 more. But the Congressional Research Service estimated in a July 28 report that it would take 1,349 judges 10 years to clear the backlog, which was only 1,979,313 cases when CRS made that calculation. It is almost 3 million now.  

The backlog has gotten so large that the average wait for an initial master calendar hearing for pleadings and to schedule an individual hearing on the merits of the case is four years. A final decision frequently takes years after that. Moreover, a report from the DHS inspector general indicates that DHS isn’t able to maintain reliable addresses for the illegal border crossers it releases.  

Possible solutions  

Immigration expert Andrew Arthur says migrants aren’t necessarily coming to apply for asylum as much as to access the asylum adjudication process that makes it possible for them to enter the country without entry documents. He thinks they should have to establish a credible fear of persecution to get into the United States to apply for asylum and that the standard for passing that test should be raised. 

This would reduce the number of frivolous asylum applications, but it wouldn’t end the backlog crisis. The court only closed 671,966 cases in fiscal 2023; at that rate, it would take more than 4 years to clear its 2,930,934 case backlog even if it did not receive any more new cases.  

Paul Schmidt, another immigration expert, says that migrants are so desperate they will come no matter what the government does in its attempts to deter them.   

They aren’t all that desperate.  

They are coming from 160 countries, not just from neighboring countries. For many of them, transportation costs and paying for assistance from smugglers are major expenses.  

Whether it is worth it depends largely on the likelihood that they will be able to stay if they succeed in getting into the country. The backlog has made this very likely. They can’t be deported without a final order of removal from an immigration judge, and the backlog has severely limited the court’s ability to conduct removal proceedings.  

Bottom line   

The backlog has turned the right to apply for asylum into little more than a vehicle for getting into the United States and staying here without fear of being deported, and it has created a haven for illegal crossers who succeed in reaching the interior of the country. The border can’t be secured under these circumstances. 

I am afraid that if a solution isn’t found soon, the only way to end the backlog will be to suspend consideration of asylum applications. Refugee admissions could be increased temporarily to provide refuge to migrants with a well-founded fear of persecution until a viable asylum system could be established.  

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 at: https://nolanrappaport.blogspot.com