Immigration courts are overrun with cases, and it’s only getting worse

The immigration court has a backlog of more than 1.7 million cases. This means that the number of people waiting for a hearing is larger than the population of Phoenix, Ariz., or of Philadelphia, Pa., the fifth and sixth largest cities in the United States. 

This isn’t a new problem, but it has gotten much worse recently. According to TRAC, a data distribution organization at Syracuse University, the growth of the backlog has been accelerating at a breakneck pace since the start of the Biden administration when it was “only” close to 1.3 million cases.

What is the administration doing to reduce the backlog?

Hiring more judges: Recent administrations have prioritized hiring more judges to lower the backlog. From fiscal 2014, to fiscal 2021, the number of judges has more than doubled, rising from 249 to 559. At the end of the first quarter in fiscal 2022, there were 578.

According to the Congressional Research Service, the backlog probably would continue to grow even if 100 more judges were hired. An additional 200 could reduce the backlog to just under 1.1 million, but it wouldn’t reach that level until fiscal 2031. It would take an additional 500 judges to eliminate the backlog entirely, and it wouldn’t happen until fiscal 2030.

Accelerated dockets: In May 2021, DHS announced a “dedicated docket” program to “more expeditiously and fairly” render decisions in the cases of certain families who are apprehended after making an illegal entry.

These families are placed in removal proceedings and then released into the interior of the country under the “Alternatives to Detention” program. This program currently is monitoring more than 227,508 families and single individuals.

The Florence Project claims that the Obama and Trump administrations attempted these “dedicated dockets” to reduce the backlog and it not only failed, but led to widespread due process violations and undermined access to legal counsel.

The Vera Institute of Justice opposes the program because it “forces newly arriving, asylum-seeking families through rushed ‘rocket docket’ court proceedings without guaranteeing legal representation for all, depriving families of fairness and due process.”

In any case, it just speeds up the processing of new additions to the immigration court caseload. It does nothing to reduce the size of the backlog, and it is very unfair to migrants who have been waiting for a hearing for up to five years. 

It also may hamper efforts to reduce the backlog. Georgetown law school professor Paul Schmidt points out that when dedicated docket judges are not available for cases on the general docket, it places extra burdens on their judicial colleagues who are handling the general docket cases.

Asylum merits interviews: Migrants in expedited removal proceedings who establish a credible fear of persecution are given an asylum hearing before an immigration judge in removal proceedings. Removal proceedings are adversarial. The migrant’s asylum application is subjected to scrutiny by a government lawyer.

The administration has published an interim final rule, which will go into effect on May 31, that will give the asylum claims of these migrants to USCIS asylum officers who will adjudicate the claims in non-adversarial asylum merits interviews. Although the migrants can be represented by counsel, there won’t be any government attorneys. 

The absence of scrutiny by a government attorney will make it easier for migrants with fraudulent or otherwise meritless persecution claims to get asylum.

Letting asylum officers grant asylum to migrants in expedited removal proceedings may slow down the rate at which new cases are added to the backlog, but it won’t reduce the number of cases that already are in it.

Moreover, 14 states have filed a suit in federal court to prevent the implementation of the interim final rule. The states claim that DHS doesn’t have the authority to let asylum officers adjudicate asylum applications in expedited removal proceedings.

Administrative closures: An administrative closure moves a case from the active docket to an inactive docket. In fiscal 2021, the administration only closed 5,374 cases; but it has closed 6,275 cases in just the first quarter of fiscal 2022. 

This just obscures the true scope of the pending cases backlog. It doesn’t reduce it.

Motions to dismiss without prejudice: In September 2021, DHS issued Guidelines for the Enforcement of Civil Immigration Law that restricted immigration enforcement actions to deportable migrants who pose a threat to national security, public safety, or border security. 

Under the Biden administration, being removable under the provisions of the Immigration and Nationality Act is not a basis for an enforcement action unless the migrant also is in one of the threat categories.

In April 2022, DHS issued a memorandum that took this a step further. The memorandum directed ICE attorneys to file motions to dismiss without prejudice the cases of migrants who are already in removal proceedings if they are not in one of the threat categories. 

The fact that the dismissal is without prejudice means that the migrants can be put in removal proceedings again.

DHS expects to do this with about 700,000 existing immigration cases, but this would still leave a backlog of more than a million cases.

The courts already are considering whether the enforcement guidelines these dismissals are based on violate the Take Care Clause in the U.S. Constitution, which provides that the president “shall take Care that the Laws be faithfully executed.” 

The real problem

There are too many asylum applications. It isn’t possible to adjudicate them with due process in an acceptable amount of time.

The solution is to screen persecution claims outside of the United States — and there already is a program for doing this: the Central American Minors (CAM) Refugee Program. It just has to be expanded to make it available to anyone who has a persecution claim.

This should reduce the number of applicants who are coming here for economic or other reasons that have nothing to do with a fear of persecution. 

And it would ensure that everyone who has a genuine persecution claim has an opportunity to present his case, regardless of whether he can establish a credible fear in an interview with an asylum officer.

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