Crushing Immigration Judge Caseloads and Lengthening Hearing Wait Times

The current policies of the Trump Administration have been unsuccessful in stemming the rise in the Immigration Court's backlog. Overcrowded dockets create lengthening wait times for hearings. At some locations, immigrants with pending cases now wait on average 1,450 days or more - over four years! - before their hearing is scheduled[1]. See Figure 1.

Figure 1. Average Days Immigrant Now Waiting for Court Hearing by Location
(Click for larger image)

Despite promises to reduce the backlog, the latest case-by-case records[2] show that the growth in the backlog has actually accelerated each year since President Trump assumed office. At the start of this administration, 542,411 cases were pending before immigration judges. By September 30, 2019, the backlog had grown to 1,023,767 "active" cases. Year-by-year the pace of increase has quickened. The active backlog grew 16.0 percent from January 2017 to the end of that fiscal year, climbed an additional 22.1 percent during FY 2018, and this past year jumped by a further 33.3 percent.

Administrative Policy Changes Have Added to Crushing Caseloads

While many sources for this rise are outside the court's control, policy decisions and practices by the Department of Justice which oversees the Immigration Court have significantly contributed to growing caseloads[3]. For example, additional cases were added to the pending backlog when the Trump Administration decided to "open" many hundreds of thousands previously "closed" cases[4]. Many of these cases have not yet been calendared so they don't show up on court backlog records. When the 322,535 cases[5] that remain to be calendared are added, the current backlog climbs from 542,411 at the start of the Trump Administration to 1,346,302 cases today - a whopping 148 percent increase.

The decision to reopen previously closed cases has single-handedly exacerbated the immigration court crisis, yet it has not received sufficient attention. This single policy decision has caused a much greater increase in the court's backlog than have all currently pending cases from families and individuals arrested along the southwest border seeking asylum.

There are a reported 214,855 of these cases that originated through credible fear claims now pending before the court[6]. Those who arrived during the recent months of the Trump Administration represent only part of this total[7]. Despite the intense public focus on asylum cases originating at the U.S.-Mexico border in recent months, their contribution to the immigration court backlog is clearly substantially fewer than the untold number of cases put back into the judges' workload when the current administration decided to unilaterally reopen long- closed cases[8].

Crushing Caseloads Assigned to Each Judge

The average caseload Immigration Court judges face has also continued to grow. This is despite the hiring of 92 judges over the past year - a net increase of 47 additional judges after accounting for judge resignations and retirements. The total number of immigration judges - including the last investiture of 27 judges on October 11, 2019 - brings the reported total to 442. (This total includes an unspecified number serving in administrative roles.)

When this relatively small pool of judges are compared to the over one million cases in the backlog, on average each judge currently has an active pending caseload of over two thousand cases (1,023,767/442=2,316) and over three thousand cases when the additional un-calendared cases are added (1,346,302/442=3,046).

These caseload figures have kept rising despite imposed production quotas implemented for the first time in FY 2019. Even with accelerated hiring of new judges, the average caseload for each judge has climbed by several hundred cases just since last April. See TRAC earlier report.

Even if caseloads were frozen and the Immigration Court stopped accepting any new cases, it would still take the existing pool of immigration judges an estimated 4.4 years to work through this accumulated backlog - even assuming judges met this administration's imposed quota of each judge closing 700 cases a year.

Clogged Dockets Lengthen Wait Times for Hearings

It is inevitable that as more and more cases are placed on a single judge's docket, immigrants assigned to that judge must wait longer and longer before an available time slot opens up for their hearing. Prioritizing some cases to jump the que and be heard first lengthens wait times for others. For example, reassigning judges to new and existing courts along the U.S.-Mexico border to handle recent arrivals inevitably exacerbates wait times for the million other immigrants still waiting elsewhere in the country to have their cases heard.

How quickly a case can be heard varies by court location according to the size of that court's pending caseload and how many judges are assigned to hear these cases. Individuals detained by ICE are generally given priority and their cases are heard more quickly. Thus, there is tremendous variation in currently scheduled wait times from an average of 37 days in the Immigration Court hearing detained cases in Cleveland, Ohio, to an average of 1,607 days for individuals assigned to the Immigration Court in Arlington, Virginia.

The Arlington court exemplifies the rising backlog and wait times. At the end of April 2017 there were 28,272 pending active cases. This grew to 32,012 at the end of May 2018, and grew further still to 39,131 as of the end of September 2019. Projected average wait times have increased from 1,165 days in April 2017 to 1,400 days in May 2018, and finally to 1,607 days - or 4.4 years - in September 2019. Hearings are being scheduled as far out as December 18, 2023.

In the New York City Immigration Court which has the largest backlog in the country, hearings are currently being scheduled five years out - all the way into December of 2024. Four other courts are scheduling hearings as far out as December 2023. These include courts in Chicago, Illinois; Houston, Texas; Philadelphia, Pennsylvania; and previously-mentioned Arlington, Virginia.

Table 1 provides similar detailed statistics for each hearing location with at least 25 pending cases. Included are each court's pending caseload, the average wait time, and how far into the future new hearings are being scheduled.

These statistics are merely projected figures for the average wait time based on the court's hearing schedule as of the end of September. Over half of these cases are waiting for their master calendar hearing - somewhat like an arraignment were this a criminal court. Thus, these projected wait times do not include further delays required to schedule any individual merit hearings after these initial master calendar hearings are held.

Footnotes

^[1] Wait times are calculated based upon the number of days immigrants have already been waiting since their Notice to Appear was issued plus the further wait required until their hearing is scheduled. Over half (56%) of the hearings scheduled are the first-step master calendar hearings, while the remainder (44%) are individual merit hearings which follow these.

^[2] These court records were obtained through a series of Freedom of Information Act requests by the Transactional Records Access Clearinghouse at Syracuse University from the Executive Office for Immigration Review.

^[3] For an early example, see "Immigration Court Dispositions Drop 9.3 Percent Under Trump.". Also see "Immigration Court Filings Take Nose Dive, While Court Backlog Increases" and section entitled, "Why Does the Backlog Continue to Rise?" in TRAC's November 6, 2018 report.

^[4] https://www.justice.gov/eoir/page/file/1064136/download.

^[5] This EOIR number as of the end of June 2019 does not appear to include those cases that have already been re-calendared and put back on the active docket.

^[6] EOIR's published figure is current as of March 31, 2019.

^[7] The Executive Office for Immigration Review has thus far withheld court records that identify which court proceedings originated with a credible fear claim so that it is not possible to determine how many of these currently pending cases originated during the Obama versus Trump presidencies.

^[8] There has been no accurate accounting of the number of cases affected by this change as publicly available court records were not necessarily updated to reflect this change. Only the component that has not yet been re-calendared of 322,535 is currently available from the court's published statistics.

^[9] As EOIR explains, an individual's first appearance before an immigration judge in a removal proceeding is at a master calendar hearing. The purpose of the master calendar hearing is to advise the individuals of their rights, explain the removal charges the government has filed against them, take pleadings, identify and attempt to narrow the factual and legal issues, and set deadlines for filing any papers needed for subsequent hearings.