The Continuing Impact of The Pandemic on Immigration Court Case Completions
As of the end of January 2022, the pace of Immigration Court work continues to lag as a result of the pandemic. There have been not only fewer case completions, but the average time required to dispose of each case has doubled since before the pandemic began.
Immigration Courts recorded 86,297 case completions so far in FY 2022 covering the period October 2021 – January 2022. However, during this same period the court received three times that many new cases—some 260,038 new filings. See Figure 1.
This gap between case receipts and case closures reflects at least two broad forces. The largest contributor to the gap has been the unprecedented surge in new case filings. As TRAC delineated in its January 18, 2022 report, the current pace of filings by the Department of Homeland Security exceeds the pace the Court has ever experienced in its entire lifetime.
Slowed Case Closures
The slowed pace of case closures as a result of the pandemic, although a smaller contributor, has also added to this gap between the count of Court receipts and Court closure numbers. Before the pandemic led to widespread court closures, immigration case completions were running at around 40,000 per month in January and February 2020. This fell dramatically. By April 2020 closures dropped to around 6,000 and bottomed out at just about 5,000 in June of that year. See Figure 2.
Court closures stayed in the basement for many months. Not until a year later, in June of 2021, did case completions rise above 10,000. They then reached 20,000 during August of 2021, and have hovered for the rest of that calendar year slightly above 20,000 cases each month, or roughly half the pre-pandemic level. During January 2022, closures slipped to 18,087.
Figure 2. Immigration Court Case Closures and Average Disposal Times, January 2020 - January 2022
(Click for larger image)
Time Required To Dispose of Cases Doubled
During the pandemic months of the Trump administration, the average time it took to close a case doubled, rising from an average of about 600 days to around 1200 days. This is also shown in Figure 2 above. Disposal times are calculated from the issuance date of the NTA to the Court’s completion of the case. Times jumped up further during the initial transition months of the Biden administration before steadily declining back to a similar 1200 average days to complete cases in the last four months of 2021. In January 2022, the average completion time remained at 1,206 days.
Thus, the Biden administration, as the Trump administration before it, now takes roughly twice the time to close a case from what prevailed just before the pandemic shutdowns of the Immigration Courts began.
The Court Backlog and Current Wait Times
Asylum cases are among the more time-consuming cases in the Court’s workload. By the end December 2021, the asylum backlog had not only steadily increased to 676,131 cases from 667,729 from the end of September, but average wait times for Court hearings had increased by much more than three months as the proportion of older cases in the backlog grew. Exact wait times are difficult to determine. This is because dockets are so clogged already, many waiting cases do not currently have a hearing scheduled. But if one assumes that when hearings are scheduled these go to the back of the line, average wait times appear to have grown by more than six months between September and December of 2021.
The skyrocketing growth of the Court’s overall backlog chronicled in TRAC’s last immigration report has also continued. When the backlog of asylum plus all other types of cases are added up, at the end of January 2022, the Court’s pending caseload increased to a record 1,636,999 cases.
Court Controls Which Cases Move to the Head of the Line
One thing to keep in mind is that while the Court has little control over the flow of incoming cases, it actually has a great deal of control over which of these cases it fast-tracks for hearing and disposition. The Court does not employ a first-in, first-out, case processing schedule. Some cases are designated “priority cases” and are moved to the head of the line. While cases assigned for priority processing have varied by presidential administration, these Court priority scheduling systems have long existed.
For example, priority is assigned to hearing cases in which the immigrant is detained. Indeed, this was the top priority of the Court after the pandemic hit. The announced policy with the Court’s pandemic closures was to continue holding hearings for detained immigrants, while most other Courts were initially shuttered.
Thus, in the early months of the pandemic, detained cases should have made up a much larger proportion of the cases the Court heard and disposed of. Because detained cases generally are disposed of more quickly, one might have expected to see a reduction in case closure times because of the shifting mix prioritizing detained cases. However, we only observe a small dip in closure times for April 2020 before the steady climb in closure times began. Clearly, there were also other impacts of the pandemic at work. See earlier Figure 2.
Both the Trump as well as the Biden administration have pursued other policies to place significant groups of new cases at the head of the line. For example, during the Trump years, Immigration Judges were sometimes transferred down to the southwest border to speed up the disposition of newly arriving cases there. That may have sped up the processing and completion of those new cases; however, hearings for cases these judges had been scheduled to hear in their home Courts were typically canceled as a result.
Thus, it is important to remember that whenever you give priority to more recent cases, this acts—other things being equal—to reduce average processing times for current case closures. However, shortened completion times in the near term come at the cost of lengthening completion times for cases down the road. Cases which were forced to wait longer in the Court’s backlog eventually have their day in Court, and closure times then as a result will have become even longer.
President Biden has established the Dedicated Docket which essentially places some newly arriving families with young children seeking asylum at the head of the line. This, however, forces others, including families with young children, already waiting for their asylum case to be heard to wait longer as a result. Two-thirds of a million asylum seekers were already waiting for Immigration Court hearings to resolve their cases at the end of September 2021.