Unrepresented Families Seeking Asylum on "Dedicated Docket" Ordered Deported by Immigration Courts

According to the latest case-by-case records through December 2021 from the Immigration Courts, over 72,000 cases involving asylum seeking families have been assigned to the Court’s “Dedicated Docket” (DD) initiative. The monthly pace of new cases on the Court’s Dedicated Docket ranged from 12,000 – 16,000 a month since August, although it dipped to 10,000 during December[1]. See Figure 1. Dedicated Docket cases made up nearly one in five (18%) of all new Notices to Appear (NTAs[2]) filed at the Court during this period.

Figure 1. Asylum Seekers Assigned by Month to the Immigration Court's Dedicated Docket and Number Currently Represented
(Click for larger image)

When the Dedicated Docket program was created in May 2021, the Biden administration set a goal of issuing decisions in these cases within 300 days from their initial master calendar hearing. This is an ambitious goal given that TRAC’s research has shown that about 667,000 asylum seekers are still waiting for Immigration Court hearings to resolve their cases, with an average wait time of 1,621 days—nearly four and a half years.

Critics have been quick to point out the failures of past administrations in implementing so-called “rocket dockets”, which similarly attempted to expedite a subset of immigration cases. Prolonged delays in deciding cases can have negative consequences for the Immigration Court system and for migrants themselves. But when cases are rushed, asylum seekers may not have the time to obtain an attorney and prepare documents that would allow the court to make a fully-informed decision, and judges may be forced into making rushed decisions.

This report presents findings providing an early reading on how the Dedicated Docket initiative is working thus far. The Dedicated Docket program has been operating for roughly seven (7) months. This is certainly less than the 300 day target that was set as the goal for completing cases, but there is enough data to draw initial conclusions about how the program is working. Already 12 percent of the cases (11,225) have been completed according to Court records. Less than 5 percent of asylum seekers (4,980 cases) have filed their asylum application as yet with the Court.

Findings are based upon case-by-case Court files obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. These data were obtained through a series of Freedom of Information requests to the Executive Office for Immigration Review (EOIR), an administrative unit within the Justice Department where the Immigration Courts are currently based.

Majority of Families on the Dedicated Docket Do Not Have an Attorney

In light of the widespread acknowledgement of the important role that immigration attorneys play, the Biden administration claimed that “fairness will not be compromised” in Dedicated Docket cases and said it selected Dedicated Docket court locations “with established communities of legal services providers.[3]”

How successful have asylum seekers been in securing legal representation? So far 15.5 percent of asylum seekers on the Dedicated Docket are now represented by attorneys according to Court records. Securing an attorney takes time, so the proportion of represented cases is higher for people admitted into the program at an earlier date and lower for people who were only recently added. But even for data from June 2021, the first full month of the program’s operation, less than half—just 45 percent—of cases have an attorney on record, and the proportion of representation falls off quickly in later months.

The Biden administration claimed that the timebound completion goals of the Dedicated Docket would nonetheless allow “time for families to seek representation where needed.” In addition to allowing adequate time to find an attorney, there further needs to be an adequate supply of immigration attorneys. A sudden influx of asylum seekers to a specific court can exceed the capacity of available immigration attorneys to handle this caseload, especially on an expedited time schedule.

Representation rates on asylum cases which were decided during this same period – almost all on a regular, rather than expedited, docket—show 91.1 percent had attorneys[4]. Thus, there is still a significant gap between the current representation rates for asylum seekers on the Dedicated Docket—even those whose cases began at least six months ago—and the overall representation rates for asylum seekers whose cases were decided during this period. See Table 1.

One in Ten Cases Closed Because of DHS’s Failure to Prosecute

A total of 1,557 asylum seekers on the Dedicated Docket have received deportation orders so far. Of these, only 75 – just 4.7 percent – had representation. By contrast, since the start of the Dedicated Docket program just 13 people—all represented—have been granted asylum or another form of lawful relief from deportation.

Most outcomes to date involve neither deportation orders nor grants of relief. The largest volume of completions occurred when Immigration Judges promptly closed the government’s case. TRAC found that 7,053 cases (10 percent of all filings) have been dismissed because of DHS’s “failure to prosecute.” This is the official reason recorded if the actual filing of the Notice to Appear has not reached the Court by the time the first hearing is scheduled. In this situation, the Court doesn’t have jurisdiction to hear the case. Thus, one unanticipated consequence of the Dedicated Docket has been the failure of the government to keep up with the necessary paperwork 10 percent of the time.

Of the completed cases where the Court had jurisdiction (i.e. an NTA was properly filed with the Court), 94 percent have resulted in ordering deportation, either because the Judge issued a removal order (in 1,557 cases) or a voluntary departure order (in 30 cases) which requires the person to leave the country on their own. Only 6 percent of completed cases have resulted in the asylum seeker being permitted to remain in the country lawfully on either a temporary or permanent basis. The largest category of these were 38 terminated cases (2.3%), followed by 23 (1.4%) administrative closures. The full array of dispositions is shown below in Table 2.

Caseloads in Individual Dedicated Docket Hearing Locations

Initially, as TRAC reported, most asylum-seeking families assigned to the Dedicated Docket were sent to the New York City DD hearing location. Later the flow shifted to the Boston’s DD Court.

As of the end of December 2021, the Court with the largest number of Dedicated Docket cases has shifted to Miami, which was assigned the majority of new cases in November. It now has 15,786 DD cases, followed by Boston with 14,939, and New York City with 12,996 DD cases. Newark is close behind with 11,487 cases. While there may be administrative reasons to funnel cases in concentrated bunches to a particular hearing location, it certainly puts pressure on judges assigned at those locations to suddenly handle this large influx of cases with expedited hearing schedules.

After Miami, Boston, New York City, and Newark, the remaining seven of the special Dedicated Docket Courts have many fewer cases. San Diego, Detroit, and El Paso have the least cases. Each of these Courts have less than a thousand cases thus far. See Table 3 for how the funneling of DD cases changed from month-to-month.

Screening by Nationality

The Court’s most recent data continue to suggest that there is selectivity exercised in admitting families into the Dedicated Docket program based upon nationality of the family. As we previously reported, based on data through July of 2021, the DD nationality composition does not resemble the general make up of individuals seeking entry to this country along our border with Mexico. Comparisons are challenging to make because of the limited availability of data, especially for parallel time periods. Some commentators have suggested that if a country will accept Title 42 expulsions, Customs and Border Protection (CBP) will choose expulsion rather than permitting the person to enter the country through the Dedicated Docket initiative. If this is true, it suggests that the composition of nationalities on the Dedicated Docket are shaped by the politics of Title 42 expulsions rather than the demographics of people seeking asylum in the United States.

During this past year fully half of those admitted into the Dedicated Docket program are from only three countries. These three countries along with the proportion they comprise of the 72,289 individuals assigned thus far to the program are: Brazil (25%), Ecuador (16%) and Honduras (10%). They are followed by Nicaragua (8%) and Venezuela (8%). Table 4 provides a complete listing of the nationalities with at least 5 individuals who have been assigned to the program.

A second relevant finding about nationality concerns the concentration of some nationalities in specific Courts. More than three out of four (77%) Brazilian nationals on the Dedicated Docket have been assigned to the Court in Boston, while more than half (59%) of those from Ecuador ended up assigned to the Court in New York City. This concentration may reflect the timing of when the major surge of these nationality groups were assigned into the program, and the administration’s practice of sending waves to specific cities rather than distributing them evenly among the 11 cities with Dedicated Dockets. See Table 5, and compare with Tables 3 and 4 showing the timing of assignments to the program by nationality and Court.

Dedicated Docket Case Tracking Still Not Fully Implemented

As TRAC previously reported, the Immigration Courts are still failing to implement consistent tracking of Dedicated Docket cases within their own records. To properly manage this initiative and provide accurate, timely reporting to the public and the current administration, all families assigned to this program should be reliably tracked.

To its credit, the Court did set up a special "DD" (Dedicated Docket) flag to be recorded on each case assigned to this program. Unfortunately, no procedures appear to have been put in place to ensure that cases assigned to the Dedicated Docket actually have this flag recorded in the Court's database system which is relied on to manage the Court's workload[5]. As of the end of December, one quarter (24%) of cases that have been assigned to the special hearing locations set up to exclusively handle Dedicated Dockets were not flagged as “DD” cases. While this is an improvement from August when fully 38 percent of cases had not been flagged, it is still woefully inadequate to fail to identify a quarter of all Dedicated Docket cases[6].

Reliable tracking is even more important now, because as time passes and cases accumulate more complex procedural histories, it becomes more difficult to reliably identify these cases. For example, a few families are being allowed to transfer their cases to hearing locations outside the Dedicated Docket network. Without having a consistent flag assigned them, these cases suddenly lose their status in the Court’s database management system of ever being part of the Dedicated Docket initiative.

This means that the administration, lawmakers, and the public should be concerned about the quality of Dedicated Docket data released by the EOIR if based on its current inadequate flagging system.

Footnotes

^[1] TRAC found the flag EOIR had assigned to tag cases assigned to the DD process unreliable and therefore used a composite measure that included individuals so flagged along with any other individuals who at any point were assigned to a "DD" special hearing location EOIR has established to process these cases.

^[2] The Notice to Appear (NTA) is a charging document typically issued by the Department of Homeland Security to persons that the agency believes are in the country unlawfully and should be deported. An NTA represents the beginning of the deportation process through the Immigration Courts, and may end in temporary or permanent lawful status, a deportation order, or other legal outcomes.

^[3] See https://www.justice.gov/opa/pr/dhs-and-doj-announce-dedicated-docket-process-more-efficient-immigration-hearings.

^[4] See TRAC’s asylum decision tool at: https://trac.syr.edu/phptools/immigration/asylum/.

^[5] In a formal Freedom of Information request submitted by TRAC to the Executive Office for Immigration Review (EOIR) noting the unreliability of the recording of the DD flag, TRAC requested any additional data "the EOIR is using to identify such individuals and families." EOIR responded that apart from the DD flag, no other records were located.

^[6] In addition, 1,481 cases flagged as “DD” cases were not ever shown assigned to a Dedicated Docket hearing location. An additional 17,220 lacked the “DD” flag but were assigned to a DD hearing location. Of these, 574 cases were subsequently shown as transferring to a non-DD hearing location. The 2,055 cases currently shown as at non-DD hearing locations in Tables 3 and 5 are made up of these 1,481+574 cases.