Newly Arriving Families Not Main Reason for Immigration Court's Growing Backlog
The Immigration Court backlog continues to rise. As of February 28, 2019, the number of pending cases on the court's active docket topped eight hundred and fifty-five thousand (855,807) cases. This is an increase of over three hundred thousand (313,396) pending cases over the backlog at the end of January 2017 when President Trump took office. This figure does not include the over three hundred thousand previously completed cases that EOIR placed back on the "pending" rolls that have not yet been put onto the active docket.
The Impact of Newly Arriving Families on the Court's Backlog
This report examines how much of the growth in the current backlog is made up of newly arriving families at the southwest border. Since the beginning of last September, the Immigration Court has begun tracking which arriving cases involve these families. Starting back in 2014 under President Obama, family units had been given priority in docketing at the court to speed their disposition. When President Trump assumed office, cases involving parents with children were downgraded and no longer received priority attention. At the same time the court stopped tracking which cases involved family units and which did not.
This all changed in September 2018 when a new tracking system was implemented at the court. This report analyzes the case-by-case court records on these cases, and how their numbers compare with the flow of incoming new cases and the court's growing backlog.
Figure 1. Composition of New Court Filings
in Immigration Court,
September 2018- February 2019
(Click for larger image)
Since September, about one out of every four newly initiated filings recorded by the Immigration Court have been designated by the Department of Homeland Security (DHS) as "family unit" cases. See Figure 1. While there have been a total of 174,628 new court filings recorded over the past six months, only 41,488 of these were designated by DHS as part of family units. The actual number of families involved were less than half this number since each parent and each child are separately counted as "court cases" even though many are likely to be heard together and resolved as one family unit.
So far 16 percent of these new "family unit" cases have already been closed, while the remaining 35,006 cases are still pending. Thus, recent family arrivals represent just 4 percent of the current court's 855,807 case backlog. See Figure 2.
This figure, of course, only reflects recently arriving families. When a similar surge of one or more parents arriving with children started back in 2014, these family cases never rose sufficiently to become a dominant component of the court's caseload. At the end of 2016 right before President Trump assumed office and tracking was discontinued, just 19 percent of the court's backlog were family cases. Again, the actual number of families involved were significantly fewer since each parent and each child are counted separately in the pending workload even though many are likely to be heard together and resolved as a family unit.
Figure 2. Recent Family Arrivals
in Immigration Court's Backlog,
February 28, 2019
(Click for larger image)
There has been no systematic accounting of how cases involving families arriving at the border are being ultimately resolved, or just how many will involve Immigration Court proceedings in their resolution. Families arriving at the border do not automatically have the right to file for asylum in Immigration Court. Under existing laws, such families must pass a number of hurdles. First, those simply coming for better economic opportunity are subject to expedited removal by DHS - a purely administrative process that doesn't require a decision by any judge. Simply expressing a "credible fear" of returning to their home county is also not sufficient. Each family must pass a credible fear or reasonable fear review. Those that do not pass this review do not have an opportunity to proceed and present their asylum claims. Again, such individuals are subject to expedited removal from the country.
At present there is a lack of reliable data on just what happens after each family arrives at the border. Different agencies - including the Border Patrol, the Office of Field Operations, Immigration and Custom Enforcement, the U.S. Citizenship and Immigration Services, the Immigration Court, and the federal criminal courts - can be involved somewhere along the way. Each of these have their own tracking systems. As a result, there is currently no continuous tracking system that follows a family from its arrival at the border onward to the final resolution of that family's case.
What we can compare—at least for the past six months—is the number of families arriving at the border each month versus the number of families that make their way to the Immigration Court. As shown in Table 1, arrivals greatly outnumber the families in court proceedings. Even after tracking began, the data indicates that the number of family units apprehended by the Border Patrol or detained at ports of entry dwarf the actual number of these cases that have thus far made their way to Immigration Court.
Because of the barriers that families must first surmount, even when they successfully pass these tests there will be some weeks before their cases reach the Immigration Court and their asylum claims can be filed. Thus, we cannot directly compare the number of families arriving at the border in any given month with the number of newly filed Immigration Court cases.
However, given the barriers involved, it seems likely that a significant number of these families will not make their way past these hurdles and thus never become part of the Immigration Court's pending caseload. Thus, it would be prudent not to use the figures on families arriving at the border as any reliable guide to the number of families that are or will be allowed to pursue their claims in Immigration Court.
 This apparently reflected plans to again assign priority to processing these cases, and a formal directive acknowledging this change was issued in November of last year. While this directive indicated that tracking had begun in ten of the largest courts, in fact flags are showing up for family unit cases in 46 Immigration Courts.