Immigration Court Backlog Now Growing Faster Than Ever, Burying Judges in an Avalanche of Cases

The U.S. Immigration Court system is currently staring up a mountain of pending cases that at the end of December 2021 reached 1,596,193 — the largest in history. If every person with a pending immigration case were gathered together it would be larger than the population of Philadelphia, the sixth largest city in the United States. Previous administrations — all the way back through at least the George W. Bush administration — have failed when they tried to tackle the seemingly intractable problem of the Immigration Court "backlog."

Yet a disturbing new trend has emerged during the Biden administration that demands attention: since the start of the Biden administration, the growth of the backlog has been accelerating at a breakneck pace.

At the start of the Bush administration the backlog stood at just 149,338. By 2008, the backlog had grown substantially and continued to grow under President Obama. And it only accelerated under President Trump. But in recent months, the rate of growth has exploded. See Figure 1.

Figure 1. Quarterly Increase in Immigration Court Pending Backlog of Cases Tracked Month-by-Month
(Click for larger image)

Quarterly growth in the number of pending Immigration Court cases between October and December 2021 is the largest on record. In just this short period, the backlog increased by almost 140,000 cases. Even during the most dramatic growth in pending cases during the Trump administration, the largest 3-month increase in the backlog only once approached 100,000 in the June-August 2019 period.

If comparisons are restricted to more typical quarterly periods with each fiscal year broken into four fixed quarters, then the peak under Trump reached only 78,000 during the last quarter of FY 2019 (July-September 2019). See Table 1. However, because TRAC receives case-by-case Court records each month, it is possible to measure the backlog's growth for any 3-month period to gain a more finely calibrated assessment of precisely when growth spurts have occurred. Figure 1 above shows the recent dramatic acceleration in the growth of the backlog. These findings suggest that the Immigration Courts are entering a worrying new era of even more crushing caseloads — all the more concerning since no attempt at a solution has yet been able to reverse the avalanche of cases that Immigration Judges now face.

The partial Court shutdown during the COVID-19 pandemic has, of course, contributed to the backlog's growth. As TRAC previously reported,[1] monthly case completions were averaging around 40,000 in the months before the shutdown, and then dropped to around 6,000. However, despite Court closures with the continuing pandemic, case completions have been growing and averaged 22,000 per month during the first quarter of FY 2022.

The main contributor to the backlog's increase, however, is not the pace of case completions, it is the recent deluge of new cases filed by the Department of Homeland Security (DHS). TRAC noted the beginning of this upward trajectory back in June. If the current pace during the first quarter of FY 2022 of newly arriving Notices to Appear (NTAs) continues, the Court will receive 800,000 new cases - at least 300,000 more [2] than the annual total the Court has ever received during its existence.

What Does the Future Hold?

Although the recent surge in the Immigration Court backlog is alarming, it is not as if Congress or the federal government has been in kept in the dark about this problem. Since at least 2008, TRAC has published regular reports and alerts about the growing backlog, provided the public with detailed data on its website, and TRAC has testified before Congress to share its findings with lawmakers. The end of the report below provides a list of 50 TRAC reports published since 2008 that raised concerns about the growing Immigration Court backlog and provided detailed research findings to substantiate those concerns as well as aid the Department of Justice, EOIR, Immigration Judges, lawmakers and the public in their attempts to address these issues.

Nonetheless, it is worth revisiting a pair of two reports, one from 2009 and one from 2019, that illustrate the growth of the backlog and its effects over that decade.

Back in 2009, TRAC published a report entitled "Case Backlogs in Immigration Courts Expand, Resulting Wait Times Grow." At that point, the backlog stood at 200,000 cases, and the average length of time cases had been pending was 14.5 months. (For context, recall that 140,000 cases — nearly 75 percent of the total backlog in 2009 — was added in just the first quarter of FY 2022.) TRAC calculated the eroding minutes that judges had to deal with each matter then received by the Immigration Courts. And to provide context, it described the typical week of work in the life of an Immigration Judge.

Back then, in a single week the typical Immigration Judge was scheduled to preside over 69 hearings, a number which was then also rising. Each judge was scheduled to hold hearings virtually nonstop, with only a half a day each week when not scheduled to be sitting in hearings. On average, during a single week a judge disposed of 27 cases, 22 of which were decisions on the merits. Sixteen out of these 22 decisions were oral rulings made by the judge at the end of a hearing, while six were issued as written rulings after the completion of the hearings.

In addition to presiding over actual court proceedings and making a determination on outcome, court records documented that on average an Immigration Judge in a typical week ruled on six additional miscellaneous matters, including bonds and other motions. Some of these were determined on the basis of papers filed rather than through an actual hearing.

TRAC found that there was, in 2009, a general absence of clerical staff and limited assistance of law clerks to assist a judge. In addition, in many cases similar to today the immigrant appearing in the case did not have a lawyer. This meant that judges in a typical week could spend considerable time orienting individuals to their rights in removal proceedings, spelling out the Court's procedures, explaining pieces of evidence, describing possible appeal rights, and answering other questions. In many worst case scenarios, judges did not provide this orientation and immigrants were deported without understanding the legal process. In about three quarters of the cases the typical judge dealt with each week (78%), the immigrants did not speak English and thus required a translator.

Each week, a judge typically had to sort out the government's claims on 32 separate charges, as well as 17 applications for relief among 38 different types of relief that an immigrant can pursue under the immigration statutes. One of these claims - the request for permanent asylum in the United States - was then at the heart of 4 cases per week for the typical judge.

This was more than a decade ago. The unremitting pressures on judges have not gone away.

The situation in many respects has grown immeasurably more burdensome on the Immigration Courts. The backlog now is eight times larger at 1.6 million pending cases, and wait times for a hearing on an immigrant's asylum claims, for example, now average 58 months or just under 5 years.

Ten years after this 2009 study of Immigration Judges' typical workloads, TRAC did a follow up study. In May 2019 this TRAC study entitled "Burgeoning Immigration Judge Workloads," found "the typical (median) judge caseload had grown to just under three thousand cases. Twenty percent of these judges have caseloads of four thousand or more cases. One judge in the Houston Immigration Court is currently assigned 9,048 cases."

Today, more than two and a half years later, typical judge caseloads are skyrocketing ever higher. It does not seem likely that more of the same policies that for years have failed the Immigration Court, its judges and immigrants appearing before them will suddenly provide a solution to the alarming growth of the Court's backlog.

Relevant TRAC Prior Reports

Footnotes

^[1] See TRAC's June and August 2020 reports..

^[2] During FY 2019, just under 500,000 new cases were added to the Court's caseload from new NTA filings, some of which were issued in prior years. The Department of Homeland Security (DHS) actually issued almost 700,000 Notices to Appear (NTA) that fiscal year. But these need to be actually filed with the Court to initiate a new case and be added to the Court's workload. That year, about 250,000 NTAs dated during FY 2019 weren't actually filed with the Court. Although they bore a date from back in FY 2019, they arrived during FY 2020, with over 20,000 not filed with the Court until FY 2021. Relevant counts in the context of the Court's case backlog need to be based on when the NTA is actually filed with the Court, not the date on the NTA. See "Why Notices to Appear (NTAs) Matter as a Valuable Datapoint" discussed in TRAC's report covering June 2021 data.