The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts

When President Donald Trump assumed office, 542,411 people had deportation cases pending before the Immigration Courts. At the start of 2021, that number now stands at 1,290,766—nearly two and a half times the level when Trump assumed office just four years ago. Waiting in the wings are another 300,000+ cases that President Trump's policy changes have decided aren't finally resolved, but have not yet been placed back on the active docket[1].

Figure 1. Number of Pending Cases in Immigration Court Grow During Trump Administration
(Click for larger image)

During the four years since Trump assumed power, none of his many policy changes made even a small dent in the pile-up of cases awaiting resolution[2]. While the Trump administration hired many new immigration judges and implemented a range of different strategies aimed in part at reducing the Immigration Court backlog, the backlog grew each month. Some of Trump's changes in court operations arguably slowed case processing. However, the primary driver of the exploding backlog was not only the lack of immigration judges but the tsunami of new cases filed in court by the Department of Homeland Security.

Indeed, the rate of growth in the case backlog only accelerated through his term in office. 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 during FY 2019 jumped by a further 33.3 percent. Even with the onset of the pandemic during FY 2020, on average the backlog increased by an additional 19,917 cases each month, only slightly fewer than the average of 21,293 per month during FY 2019.

Even if the Administration halted immigration enforcement entirely, it would still take more than President-Elect Biden's entire first term in office—assuming pre-pandemic case completion rates—for the cases now in the active backlog to be completed.

When grappling with decisions shaping immigration policies going forward, this gigantic pile-up of cases awaiting resolution is an important part of President Trump's departing legacy. President-Elect Biden now must consider how his Administration can successfully tackle this backlog, something that previous administrations have found to be a perennial and seemingly intractable problem.

Even more important than simply the total number of pending cases, however, is the fact that each pending case represents a person facing what the Supreme Court has called "the severe penalty" of deportation[3]. As TRAC recently examined, each deportation case can be complex given the various types of deportation relief—including i asylum and many other categories of relief—explicitly created by Congress to enable specific classes of immigrants facing deportation to remain in the U.S. The Biden Administration, therefore, faces the quantitative and qualitative challenge of how to address the enormous backlog in a way that is consistent with the spirit and the letter of the law.

This report provides an overview of the magnitude and composition of the current active court case backlog. The portrait provides a baseline against which the impact on the backlog of future changes in the Biden Administration's approach to immigration enforcement can be assessed.

How Long Have Individuals in the Backlog Been Waiting?

Because of the pile-up of cases, many cases in the backlog were initiated by DHS years ago. Some were initiated by the Immigration and Naturalization Service (INS), before the formation after 9/11 of the Department of Homeland Security. The average wait for a hearing date is now 1,642 days or 54 months. This is based on the average number of days between the date of the Notice to Appear (NTA) and its currently scheduled next hearing date[4]. With the continuing pandemic, it is possible that many hearings could be postponed further. This appears likely to occur until regular hearing schedules resume in all courts.

Table 1 provides further details on the distribution of wait times for cases caught in the backlog. The individuals with the shortest current wait times—the quickest 5 percent—still have a wait time of up to 15 months on average. The quarter of cases in the pending caseload with the lowest wait times now have a wait time of up to 876 days (29 months). For half, their wait will be at least 1,425 days or 47 months. The wait for the top one quarter of pending cases is currently 2,080 days or 68 months. And for the top 5 percent the wait time is now at least 3,558 days (117 months)—almost ten years. See Table 1.

These are wait times to the next scheduled hearing. Often more than one hearing may be required. For just over half (54%), the next scheduled hearing is for "master calendar" or initial hearings. The average wait time for these is 1,293 days (43 months[5]). For individuals who don't contest their removal, their cases generally end with this hearing.

For individuals waiting for an individual merits hearing, removal is being contested, and their average time in queue generally has already been longer. Most of these individuals—some 92 percent—have legal representation in order to reach this stage. The average wait time between when their NTA was issued and their merits hearing is scheduled is currently 1,963 days (65 months).

It is true that as time passes since an NTA was issued, an increasing proportion of cases are resolved. So for NTAs initiated 10 years ago, just 3 percent remain in the backlog. For those initiated five years ago, a quarter remain. A portrait of the number of cases initiated over the past decade, and those remaining in the current backlog is displayed in Figure 2. (See Appendix Table 1 for numbers.) This also shows how the large jump in DHS enforcement during the Trump years contributed to the extraordinary growth in the current backlog.

Figure 2. Cases Initiated in Immigration Court by Notice to Appear (NTA) Date and Cases Pending,
December 2009 - December 2020
(Click for larger image)

Grounds Alleged by Government for Seeking a Deportation Order

While the Trump Administration has kept up a steady drum beat portraying most immigrants as criminals posing a risk to public safety, almost everyone in the Court's current backlog—98.2 percent—have only been charged by the government with purely immigration violations[6]. See Table 2. The most common immigration charge is entry without inspection, the typical charge for an individual who did not go through a legal port of entry. Not having a valid immigrant visa, or being present in the country without authorization, are the other two most frequent violations the federal government charge as deportation grounds. Individuals who entered legally but overstayed their visa might face these charges.

Just 1.3 percent of individuals with cases in the court's backlog involve alleged criminal activity that constitute deportable grounds under the Immigration and Naturalization Act. Appendix Table 2 lists the specific government charges in cases in the current backlog. Crimes involving "moral turpitude," various controlled substance violations, and conviction for an aggravated felony are the criminal charges most commonly cited as deportable criminal grounds.

Terrorism or some type of national security charge are extremely rare. Just 17 out of the 1,290,766 individuals in the court's current backlog involve an alleged terrorism violation. Terrorism can involve actual terrorist activity, membership in a foreign terrorist organization, or simply "likely to engage in any terrorist activity." An additional 79 are alleged to have committed a national security violation such as commission of acts of torture or extrajudicial killings abroad, membership in a totalitarian party, or trying to evade laws prohibiting export of U.S. goods, technology, or other sensitive information.

There are also a number of other types of grounds that don't fit any of these previous categories. This miscellaneous group accounted for the remaining 0.5 percent of the grounds the government used to seek deportation. Among these, the most common—indeed eighth on the list of grounds in backlogged cases—is a claim that the individual is "likely to become a public charge." See Appendix Table 2.

Backlogs and Wait Times Across the Country

Wait times varied substantially across the country driven by the number and complexity of pending cases as compared with available judges hearing cases in each court. The New York City Immigration Court had the largest backlog with over 100,000 pending cases. The average wait time there was 1,788 days - nine percent higher than the national average.

Among the 35 courts with at least 10,000 pending cases, the longest average wait i time—2,324 days or 42 percent higher than the national average—was found in the Denver Immigration Court. In second place was the New Orleans Immigration Court where cases in the backlog had been waiting on average 2,120 days. This was followed by the Arlington Immigration Court with 1,899 average wait days until hearings were scheduled. Chicago and Baltimore Immigration Courts had the next two highest wait times.

Courts with detained dockets generally had smaller backlogs and lower wait times given the usual priority assigned to hearing detained cases. But even here average wait times were generally a year or more. A complete listing of the backlog and wait times in each Immigration Court as of the end of December 2020 is given below in Table 3.

Backlogs and Wait Times by Nationality

The nationality of individuals facing deportation is important because various forms of deportation relief may be explicitly or implicitly linked to nationality or to political and social conditions in their country of origin. There are currently individuals from over 200 countries with pending cases before the Immigration Court. However, the top ten nationalities account for fully 86 percent of the backlog. Of these, nearly a quarter are from Guatemala. The second most numerous are from Honduras, and in third place are those from Mexico. See Table 4.

When major arrival waves were more recent, nationalities that tended to be later additions to the Court's docket naturally have generally been waiting less time in the queue. Wait times are also impacted by where in the country particular nationality groups are concentrated, and hence whether those Immigration Courts their cases are assigned to have longer or shorter queues.

The highest average wait times for the top ten nationalities were for individuals from El Salvador with 1,923 days—or 17 percent higher than the national average. Individuals from Mexico had the next highest average wait times at 1,875 days, followed by those from China with an average wait time in the queue of 1,751 days.

Cubans had the lowest average wait times among the top ten nationalities with 958 days. Individuals from Venezuela were next lowest with 1,130 days. Appendix Table 2 provides a complete list by nationality of their numbers in the current backlog and their average wait times.

Where Does the Biden Administration Go From Here?

This report provides a valuable baseline for the public about the state of America's immigration court system at the start of a new administration. Not only do these data paint a picture of an Immigration Court overwhelmed by immigration cases from the Department of Homeland Security, most of which do not appear driven by criminal deportability grounds, but these data also illustrate the diverse cross-section of immigrants in the county, many of whom have been in the United States for years.

TRAC will continue to monitor changes in the Court's backlog as the first 100 days of the Biden Administration unfold, and in the months that follow. A free web query tool, updated monthly, allows the public to monitor these changes by state, Immigration Court, hearing location, and nationality.

Footnotes

^[1] EOIR claims "inactive pending cases" as of the end of December 2020 were 307,986. "Inactive pending cases are those cases not currently on the active docket following an immigration judge's order of administrative closure." Figure current as of January 7, 2021 available at: https://www.justice.gov/eoir/page/file/1061521/download. Because the Biden Administration need not choose to recalendar these cases, this report excludes them from consideration in this report, and focuses on the makeup of cases now in the active backlog.

^[2] For a discussion of the growth in the backlog during Trump's first three years in office, see TRAC's October 2019 report, "Crushing Immigration Judge Caseloads and Lengthening Hearing Wait Times."

^[3] Padilla v. Kentucky, 559 U.S. 356 (2010).

^[4] Some pending cases did not currently have any hearing scheduled. These cases were generally old cases initiated some time ago. In calculating wait times, these cases were assumed to have a hearing eventually scheduled at the end of the court's scheduling queue where each was located.

^[5] 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.

^[6] Of course, immigration violations when proven are an adequate basis for granting a deportation order, so that the government need not raise a claim of criminal activity even if it may be warranted. However, DHS need not limit itself to a single charge. It has an incentive, where applicable, of adding charges of criminality since under many circumstances this can bar an immigrant from being granted relief from deportation later by an immigration judge (see October 2020 TRAC report on the various types of deportation relief available).