Majority of New Family Immigration Court Cases Already in Sanctuary Cities

Despite the concern about the number of families arriving at the border seeking asylum, families continue to remain a minor proportion of new cases arriving at the Immigration Courts each month. For example, during March 2019, 35,507 new cases were recorded as new filings in the court's records. Of these, fewer than 3,300 families were among them. These families involved a total of 6,645 family members, or just 18.7 percent of the new cases that came in.

While family cases are a minor component of the court's workload, the Immigration Court's backlog continues to climb. As of the end of March, there are 869,013 cases on its active docket without counting hundreds of thousands of pending cases that have not been re-calendared. This is an increase of 326,602 pending cases on the active docket in the 26-month period since President Trump assumed office - or an increase of 60 percent.

These results are based upon the latest court records analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. These data were obtained from the Executive Office for Immigration Review (EOIR) under the Freedom of Information Act (FOIA).

Proposed Busing of Families from Border to Sanctuary Cities

On April 12, 2019 President Trump tweeted that "we are indeed, as reported, giving strong considerations to placing Illegal Immigrants in Sanctuary Cities only." Under this proposal, DHS would bus or fly families and possibly others arrested at the border to interior sanctuary cities rather than continue to release them in border communities.

Figure 1. Immigration Courts with Largest Number of New Family Cases Since September 2018
(Click for larger image)

However, families now released in border communities do not usually remain there. According to Immigration Court records, there are 32 courts with at least 100 new family cases. These courts are located in 24 different states. Over half of the cases tagged by DHS as family cases since September 2018 are before courts headquartered in sanctuary cities. Among the top ten courts where family cases are located, six are usually classified as sanctuary jurisdictions. These courts include those in New York City, San Francisco, Los Angeles and Chicago - cities which already have large undocumented populations. For a full list of courts, along with the number and proportion of new family case filings each has, see Table 1.

Data Lacking on Why Immigration Courts Not Overwhelmed with Family Cases

Given reports on the number of families arrested at the border, why aren't there more of these cases before the Immigration Courts? No one seems to know precisely what happens to each family after members are arrested by the Border Patrol and at ports of entry. In general, DHS itself is responsible for providing "notices to appear" to those arrested, and DHS agencies are also responsible for filing copies of these NTAs, where appropriate, with the Immigration Courts. This is supposed to occur whether or not families remain detained.

NTAs are the "notices to appear" that are given individuals providing official notification that the government is seeking to deport them. DHS agencies - including Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and Citizenship and Immigration Services (USCIS) - have the authority to issue NTAs, and to file them as needed with the Immigration Courts. Although CBP initially arrests these families at the border and at ports of entry, ICE becomes involved if longer periods of detention are needed. Asylum officers at USCIS also enter the picture as they are responsible for conducting "credible fear" and "reasonable fear" reviews for those seeking asylum.

It appears that the government itself does not actually know what happens to those it arrests at the border. It admits it lacks the ability to reliably follow cases when they pass from one agency of DHS to another - such as CBP to ICE and to USCIS - or to connect those cases when jurisdiction has been passed to the Department of Justice (DOJ) where the Immigration Courts are located. This appears to parallel the difficulties the government has had in reuniting children separated from their parents because separate record systems didn't pass along relevant information.

In many respects it appears that the Administration continues to be flying blind. Clearly, if agency officials don't have the data they need, they will be unable to effectively manage the situation, or even to accurately identify what additional personnel and other resources are most urgently needed. They also will be unable to effectively assess the impact of alternative policy choices that may be proposed.

In addition, the public is not being providing sufficient access to the data that is being recorded. A new barrier to public access arose just this month when the Department of Justice decided to review what information was released under the Freedom of Information Act. It stopped providing TRAC with particular case-by-case Immigration Court records tracking the processing of asylum and related applications for relief. Information both on historical as well as new asylum applications are now being withheld during this review. Other vital data TRAC had been routinely receiving and making publicly available on its website are also now being withheld.

As a direct result, TRAC is currently unable to update either its asylum web query tool, or its access tool on representation in Immigration Court by state and county. In addition, several of the fields in its tool that allows the public to drill into details on deportation proceedings, are no longer available.