A Mounting Asylum Backlog and Growing Wait Times
Over four out of every ten Immigration Court cases in which asylum applications have been filed since October 2000 are still pending. That means that of the 1.6 million Court cases in which asylum applications were filed, two-thirds of a million asylum seekers (667,229) are still waiting for hearings to resolve their cases. See Figure 1.
These wait times have ballooned. Current wait times for cases in the asylum backlog now average 1,621 days. This translates into 54 months or nearly four and a half years. See Table 1.
Figure 1. Pending vs. Completed Immigration Court Asylum Cases, FY 2001 - FY 2021
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For many asylum cases, multiple hearings are required before an Immigration Judge reaches a final decision. The initial hearing is called a Master Calendar hearing. Master Calendar hearings are similar in some respects to an arraignment in a criminal case: multiple cases are heard at the same session and the purpose is to sort out what is needed for the case to move forward and ultimately be resolved. Even the wait for a Master Calendar hearing is an average of 1,136 days in cases in which an asylum application has already been filed. Just under a third of pending asylum cases, some 205,178 immigrants, are currently waiting for a Master Calendar hearing.
For those waiting for their asylum application to be heard in an individual hearing, the wait is now 1,751 days, some 58 months or close to five years.
Further, one in six immigrants in pending asylum cases are waiting for their next hearing even to be scheduled. These don't tend to be new cases since the average time they have already waited as of the end of September 30, 2021, is already 1,089 days. If, because of clogged court schedules, their hearings put them at the end of the line, their next hearing may well be over 2,000 days out, the equivalent of nearly a six-year wait from when the DHS initiated their case by issuing their Notice to Appear (NTA).
Asylum seekers arrive at the Immigration Court through two main paths: as referrals from Asylum Officers in the United States Citizenship and Immigration Services (USCIS) ("affirmative" cases), or directly in response to deportation filings by the Department of Homeland Security (DHS) where asylum claims are raised as a defense ("defensive" cases).
In general, as shown in Table 2, affirmative asylum cases have somewhat lower average wait time than defensive cases. This reflects both the relative growth rates over time of affirmative and defensive asylum cases, as well as their geographic distribution. As discussed later in this report, wait times vary by Immigration Court so these differences reflect to some extent the distribution of affirmative versus defensive cases among Courts.
Growth in the Asylum Backlog
Year after year asylum applications filed in Immigration Court have far exceeded decisions rendered on these applications. This has been true for decades. See Figure 2. Thus, the existence of an asylum backlog is not new. What is new is the current monumental size of the backlog and the failure over the last two decades to successfully halt the backlog's explosive growth.
Figure 2. Immigration Court Asylum Applications Compared With Decisions
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Asylum cases are among the more complex and time-consuming cases that Immigration Judges handle. In FY 2012 asylum filings made up around two in every ten deportation cases filed with the Immigration Court. Asylum filings, however, have risen faster than all deportation cases. During each of the last three years, asylum filings comprised about three out of every ten Court filings.
At the end of FY 2012 the asylum backlog stood at 105,919. Ten years later the backlog had climbed to 667,229, or 6.3 times the size. The affirmative asylum backlog had grown from 73,676 to 196,994 or 2.7 times the size, while the defensive asylum backlog had grown during the same period from just 32,243 to 470,235 or 14.6 times as large. See Figure 3 and Table 3.
Figure 3. Growth in the Immigration Court Asylum Backlog
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Given this explosive growth, asylum cases make up an ever larger proportion of the Court's backlog. At the end of FY 2012 asylum cases made up about one out of three cases in the overall Court backlog. By the end of FY 2021, the proportion of the asylum cases (33%) in the total Court's backlog had climbed to just under half (46%). And this may be an underestimate. Asylum applications are typically filed after a case is well underway, and until an asylum application is filed with the Court, the case is not to be counted in the asylum backlog. Thus, some asylum applications are undoubtedly yet to be filed in a number of existing cases.
Table 4 breaks down the asylum backlog increase by presidential administration. By the end of the Obama administration at the end of FY 2016, the asylum backlog had grown to 163,451. This was an increase of 57,532 cases or a 54 percent jump since four years earlier. This increase occurred despite many efforts by that administration to reduce the overall backlog of which asylum cases formed an important part.
Policies adopted to curtail the backlog's growth during the Trump administration were also unsuccessful in stopping the asylum backlog's growth. From FY 2017 to FY 2020, the backlog shot up to 614,751. This was an increase of 451,300 cases, nearly 8 times the increase during the last four years of the Obama administration. See Figure 4.
While there was a sharp drop in asylum applications with the partial Court shutdown as a result of COVID, asylum case completions also dropped. Thus, the asylum backlog continued to build and now has reached 667,229. Indeed, the increase in the asylum backlog in just the first year of the Biden administration (52,478) was almost as large as the increase during the last four years of the Obama administration (57,532). See Table 4.
Figure 4. Increase in Immigration Court Asylum Backlog by Presidential Administration
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Completed Asylum Cases and Outcomes
Asylum grant rates have often been the focus of public attention and discussion. An implicit assumption is often made that if the immigrants' asylum applications are denied that they have been unsuccessful in their quest to legally remain in the U.S. However, this may not always be the case. In addition to asylum, there are often other avenues for relief, and other types of decisions where the Immigration Court can determine that an individual should be allowed to legally remain in the U.S. This report breaks new ground in empirically documenting just how often asylum seekers' quests to legally remain in the U.S. have been successful.
According to case-by-case records of the Immigration Courts, Immigration Judges completed close to one million cases (967,552) on which asylum applications had been filed during the last 21 years (October 2000 - September 2021). Of these, judges granted asylum to 249,413 or one-quarter (26%) of these cases.
However, only about half of asylum seekers were ordered deported. More specifically, just 42 percent received removal orders or their equivalent, and an additional 8 percent received so-called voluntary departure orders. These orders require the asylum seekers to leave the country, but unlike removal orders voluntary departure orders do not penalize individuals further by legally barring them for a period of years from reentry should their circumstances change.
The remaining one-quarter (24%) of asylum seekers were granted other forms or relief or Immigration Judges closed their cases using other grounds which allowed asylum seekers to legally remain in the country. When this proportion is added to asylum grant rates, half of asylum seekers in Immigration Court cases — about twice the individuals granted asylum — have been successful in their quest to legally remain in the United States at least for a period of time. See Figure 5.
Figure 5. Outcome of U.S. Asylum Applications, October 2000 - September 2021
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Focusing on just Immigration Court asylum cases, however, does not take into consideration asylum seekers who have asylum granted by Asylum Officers from the United States Citizenship and Immigration Services (USCIS). Those cases end there with the asylum grant. Only unsuccessful cases are forwarded to the Immigration Court for review afresh, and thus included in the Immigration Court's records. These referrals of asylum denials by USCIS Asylum Officers are classified in the Court's records as affirmative asylum cases, to distinguish them from those that start with DHS seeking a removal order from the Immigration Court and the asylum claim being raised as a defense against removal.
Thus, a more complete picture of asylum seekers to the U.S. would add in the asylum grants by USCIS on these affirmative cases. Over the period since October 2000, the total number of asylum grants totals just under 600,000 cases - more than double the asylum grants by Immigration Judges alone. Asylum Officers granted asylum in just over 350,000 cases, while Immigration Judges granted asylum in an additional close to 250,000 cases. See Tables 5a and 5b.
Asylum grants thus make up almost half (46%) of the outcomes on the total number of 1.3 million cases closed in which asylum applications were filed. An additional one in five (18%) were granted some other form of relief or otherwise allowed to legally remain in the U.S. Thus, almost two-thirds (64%) of asylum seekers in the 1.3 million cases which were resolved have been successful over the past two decades.
Figure 5 above presents a side-by-side comparison of asylum case outcomes when examining Immigration Court completions alone, and how outcome percentages shift once Asylum Officers' asylum grants are combined with decisions made by Immigration Judges.
Where Asylum Cases Have Been Filed
Asylum applicants have been quite unevenly distributed across the United States. Over the last two decades, just four Immigration Courts have accounted for almost half of asylum applications and decisions. These four Courts are based in New York City, Los Angeles, Miami, and San Francisco. The remaining more than 60 Courts roughly account for the other half.
The New York City Immigration Court has handled the largest number of asylum applicants, over one quarter million from FY 2001 through FY 2021. Judges there have completed two thirds of these cases so far. The second busiest Court when it comes to asylum applicants is on the opposite side of the country in Los Angeles. It has had slightly over 180,000 asylum applicants during this same period, and has completed almost three-fourths of these cases.
The Miami and San Francisco Immigration Courts have had the third and fourth largest concentrations of asylum applicants. Each of these two Courts have received over 125,000 cases involving asylum seekers. In Miami, judges there have managed to complete two-thirds of their cases, comparable to the completion percentage in New York City. San Francisco has a higher proportion of cases (44%) still pending.
After these top four Courts, cases involving asylum seekers, while still numerous in other major urban areas, drop off significantly. A complete listing of Court locations, sorted by the number of closed asylum cases during the last two decades, is found in Table 6.
Asylum Seekers Success Rates by Immigration Court
The success of asylum seekers in completed cases varied widely by Immigration Court. This is also shown in Table 6. The highest proportion of asylum seekers who won a favorable outcome allowing them to remain in this country was in the New York Immigration Court where 73 percent out of the 169,496 cases they closed, in which asylum applications were filed were successful. This was followed by the Honolulu Immigration Court (69%), the San Francisco and Phoenix Immigration Courts (each 65%) and the Boston Court (61%).
While these Courts made up the top five with respect to asylum success rates, they were followed closely by other Courts including Portland (60%), Arlington (60%), Sacramento (59%), Los Angeles (56%), and Newark (55%). All of these were significantly above the national average of a 50 percent success rate.
The lowest proportion of asylum seekers who won a favorable outcome occurred for the Immigration Court handling detained cases in Fishkill, New York. There only 4 percent were not ordered deported. Four other Immigration Courts - including three handling detained cases - had success rates of less than 10 percent. These were Saipan, Northern Mariana Islands (6%), Jena, Louisiana (9%), Lumpkin, Georgia (9%), and Napanoch, New York (9%). See Table 6 for a complete court-by-court listing.
Asylum Backlog and Wait Times by Immigration Court
The asylum backlog obviously reflects in significant part where asylum seekers claims have been filed. However, some Courts have greater resource constraints in handling their caseloads. The more substantial the relative shortage of available judges in those Court locations, the more the asylum backlog grows along with wait times for hearings.
The Denver Immigration Court currently has the longest wait times. On average, asylum seekers there wait 1,943 days from the date DHS initiates their case by issuing a Notice to Appear (NTA) to the next scheduled hearing. Average wait times are only slightly lower in the Arlington Immigration Court (1,934 days) and the New Orleans Immigration Court (1,930 days). The Courts in Portland, Omaha, Newark and Seattle all have average wait times above 1,800 days.
In contrast, a total of fifteen Immigration Courts - all hearing detained cases - had average wait times of less than 200 days. And at most just a handful of case were waiting. Each of their backlogs ranged from just 2 cases to 39 cases. Wait times for these Courts included those at Batavia, New York (74 days), Otay Mesa, California (83 days), Chaparral, New Mexico (87 days), Oakdale, Louisiana (102 days), Eloy, Arizona (103 days), Aurora, Colorado (106 days), Pearsall, Texas (108 days), Los Fresnos, Texas (119 days), Adelanto, California (121 days), Conroe, Texas (145 days), Napanoch, New York (148 days), Lumpkin, Georgia (159 days), Miami-Krome, Florida (164 days), Jena, Louisiana (174 days), and Elizabeth, New Jersey (184 days).
Average wait times tend to be higher for defensive asylum cases than for affirmative asylum cases. This may reflect when the asylum case started and how backlogged that Court was at this particular point in time. There is little solid empirical information on how scheduling practices may vary by Court, hearing location, or the judge. Relative wait times may also reflect other intangible factors, such as how aggressively the asylum seeker wants to expedite their case or the skills of the asylum seeker's attorney in navigating the Court's scheduling system.
In the New York City Immigration Court, for example, the average wait for affirmative cases is 1,695 days while for defensive cases it is 1,877 days. However, in a few Courts, wait times are higher for affirmative asylum cases. This is true, for example, in the Las Vegas Court. Here the average wait is slightly higher for affirmative cases (1,428 days) than for defensive cases (1,352 days). This is also true for the Phoenix Immigration Court where the average wait for affirmative asylum cases (1,476 days) is longer than for defensive cases (1,286 days), and at the San Antonio Court where there is an average wait of 2,121 days for affirmative cases and 1,399 days for defensive cases.
For a complete listing of the asylum backlog at each Immigration Court and average wait times see Table 7.
Find Out More on Asylum Filings, Decisions, and the Asylum Backlog
This report was based upon the information found in two new TRAC web-query tools. These free user tools allow the public to drill into these findings in greater detail by state, hearing location, representation and custody status, and much more. Gender, age, language, as well as nationality are now also available.
The first new tool tracks the receipt of asylum applications in Immigration Courts since October 2000. This tool monitors these cases over time by the date the asylum application was filed, and reports on outcome for those asylum seekers whose cases have subsequently been completed. Since not all asylum decisions are closed on their merits with an up or down definitive decision on the asylum claim, the tool includes other types of outcomes where the asylum seeker was judged to be legally permitted to remain in the U.S versus ordered deported.
The second new user tool monitors in greater detail the growing asylum case backlog which comprises a substantial and growing proportion of the Court's overall case backlog. It also provides details on how long these cases have already been waiting, as well as how much longer the average wait will be before the next scheduled hearing.
TRAC's asylum decision tool, has also been recently expanded to add demographic data on age and gender. Language in addition to nationality have been added to the menu choices for users.
There may be more than one Master Calendar hearing needed for a case. Hearings can be continued to a later date for a variety of reasons, including: to allow time to find an attorney or to prepare the case, because the Court itself cancelled and rescheduled a hearing, or many other reasons.
For those waiting for a Master Calendar hearing just over half of affirmative asylum cases were unrepresented (52%), that is, no attorney had entered their appearance with the Court to represent them. For defensive asylum cases, about a quarter (22%) were similarly unrepresented at this point.