Immigration Court Filings Take Nose Dive, While Court Backlog Increases

Preliminary figures based upon case-by-case court records as of the end of September 2017 indicate that the pace of DHS issued NTAs (notices to appear) initiating proceedings in Immigration Court are substantially down since President Trump assumed office. This is surprising since ICE states that its apprehensions were reportedly up during this same period[1].

There were also increasing delays at DHS before NTAs, once issued, were actually filed in Immigration Court. This backlog of un-filed NTAs helped obscure the fall in Trump-initiated cases. Over 75,000 DHS filings in court after January 20, 2017 actually were of deportation cases begun under the Obama administration.

These and other findings are based upon very current case-by-case court records that were obtained under the Freedom of Information Act and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

Despite the drop in court filings, and the hiring of 74 additional immigration judges over the past year, the court backlog also increased by 113,020 cases during FY 2017 - most of it since President Trump assumed office. At the end of September 2016, the Immigration Court backlog was 516,031. One year later, the backlog has grown to 629,051. This was up from 542,411 at the end of January 2017[2].

Details on Immigration Court Filings

Figure 1 shows the monthly number of DHS filings reaching the Immigration Court and how many of these were of NTAs dated on or after January 20. While there was an initial jump in total DHS court filings, these were entirely the results of enforcement actions begun during the previous administration. Although data are now available through mid-October, there is as yet little indication that monthly filings of NTAs issued since President Trump assumed office have rebounded[3].

Figure 1. Number of Cases DHS Filed in Immigration Court by When NTA Issued

Figure 2 examines DHS enforcement actions plotted month-by-month based on when the NTA was issued as compared with when the NTA was recorded as filed in Immigration Court. For the period up through December 2016, the number of NTAs filed in court (blue line) consistently lagged behind the number of new NTAs that were being issued (purple line). Since January, however, filings have exceeded the number of new NTAs issued.

Figure 2. Number of NTAs by Date Issued vs. Date Filed in Immigration Court

While typically there had only been a two-week delay between when an NTA was issued[4], and its filing by DHS in Immigration Court, during the early months of the Trump administration the median delay reached 67 days. For a quarter of all NTAs, the delays rose to over 160 days. Even during the month of September 2017, ten percent of NTAs filed in court that month involved a delay of at least 295 days and five percent had been delayed by at least 377 days. See Appendix Table 1.

Conclusion

While ICE actively publicizes its success at apprehending individuals the agency seeks to deport, there are perplexing unanswered questions surrounding the actual effectiveness of the agency in meeting its stated goals. ICE has not released basic information, for example, that would allow the public to understand why if the agency's apprehensions are up, not only are fewer cases turning up in the Immigration Courts but actual deportations—many of which bypass the Immigration Courts—are also down.

Despite persistent FOIA efforts by TRAC and many others, ICE has continued to refuse to release the information that would help clear up these and other puzzles. Indeed, since January 2017 the agency has begun withholding a wide variety of data it had routinely released to TRAC during the Bush and Obama administrations[5].

Regrettably, while President Trump has called for increased transparency, the agency has moved in the opposite direction. More and more basic information about the agency's actual performance remains hidden behind locked doors.

Footnotes

^[2] Immigration Court case completions are also slightly below FY 2016 levels. This is despite the fact that, as TRAC reported earlier, the Immigration Court had steadily increased the number of cases it had completed during the first four months of FY 2017 before President Trump assumed office. The main reason for the fall-off in closures since then has been the abrupt drop in prosecutorial discretion (PD) court closures due to a change in this administration's policies. PD closures reduce the backlog but don't count as judge "decisions." With the additional hiring of judges, the number of judge decisions ordering deportation has been rising. See July 17, 2017 TRAC report. Court decisions granting relief are also up. But these trends were insufficient to overcome the abrupt drop in PD closures.

^[3] This report relies upon court data to measure NTAs issued by Homeland Security officials because DHS has refused to provide this information, contending that it cannot retrieve comprehensive data on NTAs it has issued. TRAC reliance on court data means that there are undoubtedly NTAs that have been issued that are yet to be filed and hence are not reflected in the counts in this report.

^[4] The median days between issuance and filing of an NTA has varied by fiscal year. During the period of FY 1998 through FY 2013 it ranged between 9 and 14 days, except after the sudden surge in new NTAs in 2005. Since then the median delay has been climbing (22 days in FY 2015, 33 days in FY 2016, and 44 days in FY 2017).

^[5] See, for example, lawsuits challenging this withholding that TRAC co-directors filed in May and June of this year.