Published Jan 5, 2023
Findings are based upon a detailed analysis of the millions of Immigration Court records covering cases where officials within agencies including Customs and Border Protection (CBP), Immigration and Customs Enforcement ICE), and the U.S. Citizenship and Immigration Services (USCIS) have filed an action seeking a ruling by an Immigration Judge. Most of these are deportation actions[1] seeking to have a judge issue a removal order allowing the Department of Homeland Security (DHS) to deport the noncitizen. These actions are generally begun by filing a Notice to Appear (NTA) requiring noncitizens to appear in court and defend themselves against the civil immigration charge(s) contained in the NTA.
These individual case records were obtained through requests made by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University under the Freedom of Information Act (FOIA) to the Executive Office for Immigration Review (EOIR), a unit within the Department of Justice (DOJ) in which these administrative courts are housed.
The Immigration Courts were established by Congress to conduct deportation proceedings and decide "whether foreign-born individuals, who are charged by the Department of Homeland Security (DHS) with violating immigration law, should be ordered removed from the United States." Immigration Courts are an administrative body and Immigration Judges are employees of the Department of Justice, the country’s lead law enforcement agency and therefore subject to direction by the Attorney General.[2]
The Immigration and Naturalization Act (INA) specifies the grounds that subject a noncitizen to deportation. For a table listing immigration charges that are grounds for deportation and their frequency of use see here and Appendix Table 2 here. DHS has the responsibility of establishing to the satisfaction of an Immigration Judge that one or more of these grounds apply to a noncitizen. If a noncitizen is unable to successfully challenge these grounds, they can under provisions of the same INA seek relief from removal such as claiming asylum or a large number of other specified relief grounds. Depending on the charge, some forms of relief are not available.
It is important to emphasize that immigration charges that subject a noncitizen to deportation are fundamentally different from criminal charges that might lead to prosecution in the U.S. District Courts. Although some criminal convictions can also become grounds for deportation, this is not true for every type of criminal offense. It is also notable that the use of criminal grounds has been markedly decreasing over time.[3]
The immigration provisions breakdown charges into a number of broad categories, within which there are usually a variety of specific provisions each of which can subject a noncitizen to deportation:
Terrorism. Extremely rarely used. This does not require specific acts. To be deported for terrorism, for example, it is sufficient if "a consular officer or the Attorney General knows, or has reasonable ground to believe" that the individual "is likely to engage after entry [in the United States] in any terrorist activity."
National Security. Again, rarely used. This can be based upon specific acts or simply unlawful activity which “endangers public safety or national security.”
Criminal:
Aggravated felon: convicted of an offense considered an aggravated felony, or to attempt or conspire to commit an aggravated felony. What is such an offense is subject to interpretation and has resulted in much litigation. While these are often serious felony convictions, even misdemeanors such as stealing Tylenol and cigarettes have at times been upheld to categorize an individual as an aggravated felon.
All other deportation charges alleging criminal activity, such as substance abuse, moral turpitude, domestic violence, child abuse or neglect. See table for other common provisions used. Note that there are convictions for a number of criminal offenses that aren’t considered deportable offenses under the immigration statute.
Immigration:
Entry without inspection (EWI). This is by far the most common charge used.
All other immigration offenses including being present without admission or parole, no valid immigration visa, failure to maintain legal status, fraud or willful misrepresentation of visa or documentation to gain admission to U.S. and many others. See table for other immigration charges used.
Other: miscellaneous charges including a noncitizen likely to become a public charge, communicable disease, failure to meet labor certification requirements, practicing polygamist, unlawful voter, physical or mental disorder, vaccinations, illness, mental or physical disability. See table for other common miscellaneous charges used.
Based upon the records of the Immigration Courts, TRAC classified each of these removal proceedings on the basis of the particular charge(s) that the government brought. Classification here is based upon charges filed and does not require that the charges ultimately be sustained.
Since each individual could face multiple charges, individuals were classified into categories according to their most serious deportable charge. In accordance with the DHS's announced priorities, in descending order of seriousness, these categories are as follows, from most to least serious: (1) terrorism, (2) national security, (3) criminal-aggravated felon, (4) other criminal, (5) other (miscellaneous), (6) other immigration charge, and (7) entry without inspection. Note that entry without inspection is the classification only when no other immigration charge was present.
TRAC's Immigration Court tools all start with the same data. The tools differ in their focus and the stage cases have reached:
Court Filings [f] : Here the timeline and case selection focus on cases based on the date the NTA was issued. Results do allow tracking the current status of the case, including the outcome, if that has occurred. But the timeline even for outcome is based on the NTA date—not on when the outcome occurred. Case counts are tracked.
Mapping Court Filings : this tool maps pending cases and representation by state, county, and county subdivisions. It has unique features not described here. See separate About the Data for this tool.
Court Decisions [d] : Here the timeline focuses on the date the case was completed. Only cases the immigration judge has closed are included. In addition to case counts, the tool includes the average days between the filing of the case and the date the case was closed.
Court Backlog [b] : Here the focus is on all pending Court cases. Here the timeline shows the backlog at the end of each fiscal year. For the current fiscal year, the backlog is at the end of the latest month data are available. The latest date data were available is shown on the app.
The Court Backlog tool provides not only (1) pending case counts, but also (2) the average days wait from the filing of the case until the latest available data.
There are additional TRAC tools on specialized Immigration Court proceedings. These include a series of tools on Asylum Cases, and a separate tool examines Immigration Court Bond Decisions. Bond decisions are rendered by Immigration Judges when a motion is filed by a noncitizen detained by ICE seeking to be released on bond. The individual need not have a case currently pending before the Court although many do.
TRAC's new web-query tools—court filings (f), court decisions (d), and court backlog (b)—work in a similar fashion and display data in three interconnected tables and a time series graph.
Graph: The time series graph displays the timeline on which the selected cases for each tool was based. The graph updates to reflect the subset of cases chosen in the table row category last selected. Mousing over a bar in this graph reveals the data value and date it represents. Either the number of cases or the percent of cases can be displayed by selecting the appropriate radio button. For filings, other radio buttons allow the user to switch between displaying fiscal years or displaying data month-by-month, or focusing in on particular deportation charges via a pie chart. For decisions, radio buttons allow the user to filter by outcome type.
Interconnected Tables: Pulldown menus above each of the three tables control which variable or factor is displayed. For the backlog tool, a user must also select which fiscal year's backlog data are displayed. For the filings and decisions tools, by default all relevant cases across the years are included.
By default, table rows are displayed by the frequency of occurrence within that table, from highest to lowest. Clicking above the column volume can switch the display order. Clicking above the category name can switch to displaying to alphabetical order, or reverse alphabetical order.
Selections from the three tables below the graph should be made from left to right and allow the user to "drill" down or filter the data into narrower and narrower sub-categories. If you select a specific row in the left table, only those cases within that selection will display in the table to the immediate right.
The tables and graph are interconnected. Click on a row in the left table to display only cases within that class in the middle table and in the graph. Click on a row in the middle table to display only cases within that class in the right table and in the graph. Click on a row in the right table to display only cases within that class in the graph.
Pulldown Menus Above Each Table control the variable or factor displayed. Most selections are common across all three tools. Where menu selections are specific to particular tools, this is indicated by [f,b] after the selection's name in the section which follows.
Time Period:
Fiscal Year NTA Issued [f]. This selection displays cases for the entire fiscal year, or for the current fiscal year through the latest month that data are available. The federal government's fiscal year runs from October 1 to September 30.
Fiscal Year Case Still Pending [b]. Similar to above, but timeline based on when backlog was measured. This is generally at the end of a FY or the latest month data are available in the current FY.
Month and Year NTA Issued [f]. Similar but selection displays cases for each month of the NTA date.
• Fiscal Year Case Concluded and Decision Reached [d]. This selection displays cases for the entire fiscal year but by date the Immigration Court case closed, or for the current fiscal year through the latest month that data are available.
• Month and Year Case Concluded and Decision Reached [d]. Similar but selection displays cases for each month by the closure date.
Location:
Immigration Court State. The state or territory where the Immigration Court assigned administrative responsibility for the case is located. Note that the actual hearing location may be in a different state, since some courts handle proceedings in more than one state.
Immigration Court. There are Immigration Courts located in different parts of the country assigned the administrative responsibility for handling proceedings in their geographic district. Courts are usually referred to by the city or place where they are located—what EOIR refers to as their "base city." Sometimes Courts which handle, for example, only detained or only juveniles have been become administratively separate, although located in the same city. Street addresses for all Courts are found here.
Hearing Location. Each Immigration Court usually has more than one geographic location in which judges hold hearings. Sometimes videoconferencing is used so that the individual and judge are not in the same location. Normally a hearing location is administered by a single Immigration Court. Street addresses for hearing locations are found here.
Demographic Characteristics of Noncitizen Charged:
Immigrant State. The state where the immigrant currently resides based on their mailing address zip code as reflected in court records.
Immigrant County. The county and state where the immigrant current resides based on their mailing address zip code as reflected in court records.
Nationality. The recorded nationality of the individual.
Language. The language recorded as spoken by the individual.
Age Group. The individual's age at the time the Notice to Appeal (NTA) initiating Immigration Court proceedings was issued. This is calculated by TRAC based on the month and year of birth (where this was recorded by EOIR) and the date on the NTA. Birthdate is not always present in EOIR records and was usually missing until fairly recently.
Gender. Whether the individual was recorded as a "male" or "female." Gender is not always present in EOIR records and was usually missing until fairly recently.
Additional Case Characteristics:
Represented. Whether the individual did ("Represented") or did not ("Not Represented") have an attorney to help present the individual's case.
Custody. Whether the individual remained detained, was detained but released from custody, or was never detained since court proceedings began.
How Long in U.S. [f]: Number of years the person resided in the U.S. before the Notice to Appear (NTA) was issued. This information is not always recorded.
Hearing Attendance [f,d]: This records whether the individual is still waiting for the first hearing, has always been present at hearings, or was not present at the last hearing (absentia decision).
Type of Hearing [b]: Whether the next scheduled hearing is a "Master" calendar (somewhat similar to an arraignment in a criminal case where individuals in multiple cases enter their appearance and next steps are determined), or an "Individual" hearing on the merits of the person's claims to remain in the U.S.
Removal: The most common deportation case type. Here DHS seeks an Immigration Judge's order authorizing the agency to remove ("deport") the individual. Beginning on April 1, 1997, these replaced separate "deportation" and "exclusion" proceedings. All three of these 3 types in TRAC's tools are grouped together under the heading of deportation cases.
Exclusion: Cases begun before April 1997 where a person tried to enter the United States but was stopped at the point of entry and alleged to be inadmissible.
Deportation: Cases begun before April 1997 where the noncitizen was alleged to have entered the country illegally, or had entered legally but violated one or more conditions of their visa.
Credible Fear: An immigration judge is asked to review the decision of a USCIS asylum officer as to whether the noncitizen otherwise subjected to expedited removal has a credible fear of persecution or torture.
Reasonable Fear: An immigration judge is asked to review the decision of a USCIS asylum officer as to whether the noncitizen otherwise subject to expedited removal or reinstatment of a prior removal order has a reasonable fear of persecution or torture.
Asylum Only: Proceedings in which the Immigration Judge only considers applications for asylum, withholding of removal, and protection under the Convention Against Torture.
Witholding Only: Proceedings in which the Immigration Judge only considers applications for withholding of removal (“restriction on removal”) and protection under the Convention Against torture.
NACARA: Special proceedings under the Nicaraguan Adjustment and Central American Relief Act.
Other Case Types: Other special proceedings which are now rarely seen such as continued detention review, claimed status review, and departure control.
Outcome [f,d]: This records the decision or closure reason for the entire case, or whether the case is still pending. Outcomes include:
Pending. Case remains open and has not been closed.
Removal Orders. Immigration Court judge sustains the removal charge(s) against the individual and issues a removal order. The term "removal" is used in a generic sense and includes orders of deportation, exclusion, etc. A removal order bars the individual from returning to the U.S. for a period of years, or in some cases permanently.
Voluntary Departure Orders. Immigration Court judge sustains the removal charge(s) and issues an order of voluntary departure. A so-called "voluntary departure" is when the individual is required to leave the country but is not legally barred from returning.
Terminated (no grounds for removal). Immigration Court judge finds the removal charge(s) against the individual are not sustained and "terminates" or dismisses the case. Situations where the alien has established eligibility for naturalization can be grounds for termination.
Relief Granted: Immigration Court judge sustains the removal charges but finds provisions in the immigration law entitle the individual to "relief" from removal, allowing them to remain in this country.[4]
Other Closure: Immigration Court judge decides not to deport the individual for other unspecified reasons.
No NTA Filed: Immigration Court judge dismisses the case because of the failure of the government to file the NTA with the court by the initial hearing.
Pros. Discretion: Case closed as an exercise of prosecutorial discretion.
Special closure reasons for specific case types: Closure reasons here are specific to the type of proceeding (case type) and the question before the judge such as whether credible or reasonable fear was found, or withholding only or asylum only was granted.
EOIR Data Quality Issues. TRAC has uncovered data quality issues in EOIR's data management practices. TRAC has reported previously on these problems here. Thousands of EOIR database records on applications for relief have disappeared, and the number continues to grow each month. Records on cases and proceedings have also shown similar data quality issues although to a smaller degree. TRAC receives a monthly data dump from EOIR's master database. This is the database which the agency relies on to manage its workload. When compared case-by-case, record-by-record, with the previous month's data dump TRAC received, we find that records just disappear without explanation. Disappearing records include both relief applications that have been decided as well as those still pending before the Court. This problem is continuing. Some 17,706 asylum applications disappeared from EOIR files between FY 2019 - FY 2022. TRAC has repeatedly reached out to the agency but has not received any satisfactory explanation.
More recently, TRAC in compiling data to track the asylum backlog, uncovered a second issue where EOIR lost track in its database that an asylum application had been filed. This problem was uncovered for over 50,000 pending cases. Here the asylum application was initially recorded, but wasn't properly carried forward and recorded when, for example, a change in venue or transfer to another hearing location had occurred. The pending asylum application simply disappeared. Thankfully, the original record of filing—when one searched back in EOIR's historical database record for that case—was still present. Thus, TRAC was able to correct for these situations even where the Court had lost track of the asylum application.
EOIR's published statistics for FY 2021, however, fail to include these cases. This may partially account for why although asylum filings continue to greatly exceed asylum case closures, EOIR reports its asylum backlog has inexplicably gone down. Note that again in FY 2022 while filings greatly exceeded closings, EOIR shows that mysteriously its backlog has again gone down. EOIR's algorithm for computing the asylum backlog also has fundamental additional flaws. The asylum backlog figures for past fiscal years rather than being stable change wildly in its annual updates, rather than maintaining any consistency. Compare EOIR's reported pending asylum cases at the end of FY 2020 with the values given in the previous links for FY 2021 and FY 2022.
In contrast, EOIR’s published statistics on its overall backlog have been fairly consistent since these were published for the first time in its FY 2017 annual statistical report. [Note TRAC had long pioneered publishing these counts for years before EOIR began tracking its Immigration Court backlog.] However, since FY 2021 EOIR’s backlog counts began lagging behind TRAC’s numbers for unexplained reasons. For FY 2017 through FY 2019 its numbers were somewhat higher than TRAC’s counts. This might occur if the “last proceeding” isn’t properly selected by the agency’s algorithm, so a closed case shows up as still pending or vice-versa.
To access additional data using other TRAC immigration enforcement tools, go to this directory of data tools.
Footnotes