Cubans, Venezuelans, and Nicaraguans Increase in Immigration Court Backlog

The fastest growing segments of the Immigration Court backlog are now Cubans, Venezuelans, and Nicaraguans. Between September 2018, when fiscal year 2018 drew to a close, and December 2019, Cubans in the backlog increased by 374 percent, Venezuela increased by 277 percent, and Nicaraguans increased by 190 percent. These rates of increase stand out when compared to the overall growth of 42 percent across all nationalities during this same period.

The majority (52%) of the court's active backlog continues to come from the three northern triangle countries of Central America (Honduras, Guatemala, and El Salvador) and Mexico. Among these nations, the largest number are from Guatemala with 237,061 waiting for their court hearings, followed by Hondurans with 195,198, and Mexicans with 183,263 cases in the backlog. See Table 1.

Table 1. Immigration Court Backlog by Nationality

Nationality*	September 2018	December 2019	Percent Change
All	768,257	1,089,696	41.8%
Guatemala	148,610	237,061	59.5%
Honduras	114,446	195,198	70.6%
Mexico	155,450	183,263	17.9%
El Salvador	150,701	172,662	14.6%
India	23,995	31,147	29.8%
Cuba	6,242	29,581	373.9%
China	25,470	28,126	10.4%
Ecuador	16,840	24,853	47.6%
Venezuela	6,492	24,451	276.6%
Brazil	10,530	16,952	61.0%
Nicaragua	4,145	12,006	189.7%
Haiti	9,616	10,364	7.8%
All other	95,720	124,032	29.6%

* Nationalities listed had 10,000 or more in current backlog.

Still Not Enough Judges

Despite the many actions by the Trump Administration designed to stem the growth in the Immigration Court backlog, the court's backlog continues to climb. In just the three-month period from October through December 2019 the backlog has grown by 65,929 new cases. The court ended December 2019 with 1,089,696[1] in its active backlog[2]. Three months earlier at the end of FY 2019 (September 2019) the active backlog stood at 1,023,767.

During the first three months of FY 2020 (October 2019 - December 2019), the pace of court case completions is up compared to the same period from the previous year (October 2018 - December 2018). This should not be surprising. The court hired 92 new judges during FY 2019 and, unlike last year at this time, the court isn't stymied by the partial government shutdown. But the flow of new cases continues to outpace completions.

To put this recent 65,929-case growth in the backlog in perspective, assuming the pace of new filings continues at the existing rate and each judge met their administration-imposed quota of closing 700 cases a year, it would still require the court to hire almost 400 new judges - while stemming resignations and retirements among current judges - to stop the backlog from growing further[3]. And a much larger round of judge hirings than this would be required in order to begin to reduce the backlog.

Latest on Missing EOIR Records in Public Releases

First the good news. EOIR has restored close to a million applications for relief to its latest public data release. EOIR informed TRAC that during the past year it had started withholding all information in its database on whether individuals had applied for relief under the Convention Against Torture (CAT), as well as the court's decisions on these applications. In response to TRAC's reporting, EOIR recently reconsidered whether these records were exempt from disclosure and determined it could stop withholding them. However, it failed to restore 2,797 of these CAT applications that TRAC had previously received because these had apparently "disappeared" from the master file and couldn't be located.

Now the bad news. The number of disappearing records of other kinds from EOIR's master database that were in previous monthly shipments continues to grow. For example, compared to court cases in the files at the end of FY 2018, as of the end of December 2019 a total of 1,133 court proceedings have disappeared and 9,703 other applications for relief - in additional to the 2,797 missing CAT applications previously mentioned - are no longer in the data EOIR provided.

EOIR Director James McHenry has not responded to either the November 4, 2019 letter or follow-up letter of December 18, 2019 TRAC sent asking that he correct public statements that EOIR data releases are accurate, and take steps to ensure that going forward the public is provided with accurate and reliable data about the Immigration Court's operations. TRAC has now filed formal FOIA requests seeking agency records that might help identify why and when records continue to go missing. We will monitor EOIR's future data releases to identify if additional records disappear and their volume and potential significance.

^[1] Figures in this report were compiled from court records 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.

^[2] The active court backlog is limited to "calendared" cases. There are a large number of additional pending cases that have not yet been calendared. See discussion in October 2019 and Nov 2018 reports.

^[3] With a 3-month growth of 65,929, a net additional 377 judges would have been required. [With each judge meeting the administration-imposed quota of closing 700 cases per year, this is the equivalent of 700/4 = 175 per 3-month period and 65,929/175=377.} Hiring would need to be greater than this to take into account judge resignations and retirements. For example, during FY 2019 ninety-two (92) new judges were hired, but this resulted in a net increase of only 47 additional judges given the number of judges who left the bench during this same period. Thus, total judge ranks increased from 395 to just 442.