A Sober Assessment of the Growing U.S. Asylum Backlog

Published Dec 22, 2022

The latest available data reveal that the number of asylum seekers waiting for asylum hearings in the U.S. has now reached at least 1,565,966 individuals. About half of this total, or 787,882, are waiting for hearings before judges in the Immigration Courts housed in the Department of Justice. The other half, or 778,084 asylum seekers, are waiting for hearings before United States Citizenship and Immigration Services (USCIS) asylum officers who are housed in the Department of Homeland Security.[1] Many other asylum seekers have been allowed to enter the United States to go through the asylum process but have not yet submitted an asylum application.

These asylum applications—nearly 1.6 million—represent the largest total number of pending asylum applications on record. Asylum backlogs are not new (as TRAC has shown many times), since the number of people requesting the type of protection that asylum provides has typically exceeded the capacity of government agencies to process applications quickly and fairly.

Yet in recent years, with political, economic, and environmental instability in places like Mexico, Venezuela, Haiti, Central America, Ukraine, and elsewhere, the United States has seen a growth in migrants’ needs that outpace even the growing number of Immigration Judges and asylum officers added by both Democratic and Republican administrations. Even so, 1.6 million applications are a lot of applications, and a lot of human lives represented by those applications, many of them children. This growth has contributed to bureaucratic pressures on government agencies and no doubt contributed to vigorous (but not always research-informed) public debate about asylum policies.

In this report, TRAC aims to contribute to the public’s understanding of the current state of the asylum system by providing a detailed portrait of the nearly 800,000 cases in the asylum backlog before the Immigration Courts. The report is based on detailed case-by-case Court records obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. TRAC has been making monthly requests under the Freedom of Information Act for data dumps of these court records for many years and has compiled an extensive and detailed time series on the Court’s growing backlog. Unfortunately, comparable records are not yet available from USCIS on its asylum backlog. TRAC looks forward to when similar detailed case-by-case records become available from that agency so that a more comprehensive portrait of the total set of asylum seekers before both agencies can be compiled.[2]

Asylum Seekers Before the Immigration Court

At the end of FY 2012, over 100,000 asylum cases were pending in the Immigration Court’s backlog. A decade later, the backlog had grown over 7-fold to over 750,000 cases in September at the end of FY 2022. Since then, in just the first two months of FY 2023 (October-November 2022), the asylum backlog jumped by over 30,000 new cases and now totals 787,882. See Figure 1.

As TRAC previously reported, the Biden administration has substantially increased the number of asylum cases completed by Immigration Judges. As a result, even though the backlog continues to increase, its rate of increase has been slower than the previous administration. See Figure 2 and Table 1.

But the situation may be changing. During October and November 2022 (the first two months of FY 2023), the Immigration Court’s asylum case backlog grew by more than the growth during the entire last year of the Obama administration in FY 2016. The termination of Title 42, a public health policy that allows asylum seekers to be expelled without a hearing, is likely to lead to an increase in the arrival of asylum seekers at the US-Mexico border. While projections from just two months to an entire fiscal year is highly speculative, if the current pace continues, the asylum backlog as shown in Figure 2 would jump by a record-breaking number during FY 2023.

These rising case numbers, however, still underestimate the actual total backlog of asylum seekers in the United States awaiting their hearings. For asylum seekers who are put into the deportation process, their deportation case begins before their asylum case begins. The formal application for asylum is usually filed months after their NTA is issued and after the case is added to the Immigration Court, typically due to the time needed to get an attorney and assemble what can often be quite complex cases. But from a data tracking perspective, it is only with the filing of an asylum application that a case can be identified as part of the asylum backlog. If the number of asylum seekers are rising, the asylum backlog count lags behind the number of asylum seekers who have entered the Court’s workload.

Affirmative versus Defensive Asylum Cases in Immigration Court

There are two main types of asylum applications each decided (at least at first) by a different federal agency. Most asylum applications today are considered defensive applications and filed in response to the Department of Homeland Security (DHS) initiating removal proceedings in Immigration Court by filing a Notice to Appear (NTA). An individual may then claim that they are entitled to asylum as a defense against removal (i.e. deportation)—although in most cases, the migrants came to the US for the purpose of seeking asylum in the first place. [3]

Affirmative applications, in contrast, are those which are filed with USCIS. However, if USCIS denies the affirmative asylum application, the agency then generally refers the application to the Immigration Court. Within the Immigration Court context, this is still considered an affirmative application.[4] Thus, unsuccessful affirmative asylum applications can make their way to a second hearing and decision by an Immigration Judge and become part of the Court’s asylum backlog.

At one time in the past, these referrals from USCIS made up more than half of the Court’s asylum backlog. However, the proportion of new affirmative asylum cases began steadily declining starting in FY 2007. At that time, affirmative cases referred from USCIS made up 70 percent of the Court’s new asylum cases. By FY 2017 they had fallen to just 15 percent.[5]

The Court’s affirmative asylum backlog reflects these filing trends. It declined slowly from FY 2012, when TRAC’s available data begins, until 2017 when affirmative cases then began an upward rise. The number of affirmative asylum cases in the Court’s backlog grew steadily from FY 2017 through FY 2021. See Figure 3.

Starting in FY 2022, affirmative cases again began to decline. The implementation of the new Asylum Officer Rule, where asylum officers are given new authority to hear asylum cases in place of Immigration Judges, may change these trends once again.

In contrast, the sheer number of defensive asylum cases has seen an unbroken rise. The growth, while slow at first, picked up speed and by the end of FY 2015 the number of defensive asylum cases in the Court’s backlog surpassed these affirmative referrals from USCIS for the first time. Numbers have continued a sharp upward trajectory as shown in Figure 3.

Custody of Asylum Seekers

A major political debate, one which is playing out in part in the U.S. federal courts, [6] continues to rage over whether asylum seekers should be detained while their cases are waiting to be heard. As a practical matter, Immigration and Customs Enforcement (ICE) currently is detaining just 29,000 immigrants. Detaining everyone in just the current Immigration Court asylum backlog would require more than 27 times current detention numbers.[7] If individuals in the USCIS asylum backlog were also required to be detained, the U.S. would need 54 times its current detention level.

In fact, ICE now detains only a small portion – around 2,000 -- of asylum seekers pending before the Immigration Court. Due in part to the priority given to quickly scheduling hearings for detained cases, the component of detained cases has remained generally below 2 percent. Indeed, with the onset of COVID and the need to increase spacing for health reasons among those being held, this proportion has fallen. Today only 0.3 percent of those in the current asylum backlog are detained. See Table 3 and Figure 4.

While most immigrants in the asylum backlog are not detained, a growing segment are being electronically monitored under ICE’s Alternatives to Detention (ATD) program. For example, one of the stated conditions of families being assigned to the Court’s Dedicated Docket was assignment first to the ATD program. Case-by-case internal ICE data obtained and compiled by TRAC reveals that 26,780 families assigned to the Court’s Dedicated Docket have been monitored by ATD. For some of these, monitoring was discontinued after a period of time – that is their cases became “inactive.” But as of June 30, 2022, a total of 16,569 families were being actively monitored while they were awaiting their hearing and decision.

Given that only one member of a family and not all family members likely are being monitored, this implies that virtually all of the 110,000 asylum seekers assigned to the Dedicated Docket are (or were) subject to ATD monitoring.

No solid figures exist as to how many in the current asylum backlog, beyond those in the DD program, are being monitored by ATD. However, for recent asylum applicants it is likely that their numbers have been increasing along with the rapid growth in the ATD program.

Representation

Without representation, many asylum seekers are unable to complete the paperwork needed to file a formal asylum application. Hence, these individuals never end up part of the asylum backlog and they never receive a hearing before an Immigration Judge on their asylum claims. Nonetheless, some unrepresented immigrants do manage to file an application. In cases decided in FY 2022, less than one out of ten asylum seekers were unrepresented.

However, within the current asylum backlog, one in five (21%) are recorded as unrepresented. This ratio appears to greatly overstate the actual percentage who are unrepresented, and this could be because of how and when representation status is recorded in the Immigration Court’s files. A record of attorney representation only occurs when an attorney files an E-28 form with the Court. Some attorneys may register their appearance when the Court actually schedules the case for hearing rather than when filing the asylum application earlier. Thus, it is possible that a large number of asylum seekers are recorded as unrepresented in the Court’s files even when the asylum application was actually prepared and submitted with the assistance of an attorney.

In fact, 42 percent of those who filed their applications during the last two months (October-November 2022) are currently shown as unrepresented in the Court’s records. Many of these asylum applications in all likelihood had actually been prepared by an attorney. Indeed, the longer ago the application was filed, the more show up as being represented. This would be the pattern we would expect if delays frequently occur before the E-28 form is filed. See Figure 5 and Table 4.

Gender and Age

There is a fairly even split between male and female asylum seekers. About 3 out of 10 are children under 18 years of age. The children who make up the Court’s asylum backlog almost all enter as part of a family group. This is because for most unaccompanied children their asylum applications are filed with the USCIS under special provisions of the law and not with the Immigration Court.

While the gender of a significant number (24%) is not recorded, where gender is known 48 percent are females and 52 percent are males. Children between the ages of 0-11 are fairly evenly divided between males and females. However, 61 percent of those between 12 and 17 years of age are male. Adults from 18 years on up are again fairly evenly divided between males and females. Forty-nine percent of all adults are females. A slightly higher percentage of 51% of young adults — those between 18 and 24 years of age — are females. See Table 5.

Asylum Seekers by Nationality

Asylum seekers recorded as speaking 418 different languages from 219 different countries plus those who are stateless or from countries that no longer exist are in the current Immigration Court’s asylum backlog.[8] But some countries dominate the asylum roles. Indeed, nearly six out of every ten (59%) come from just five countries. Guatemala has the largest number of asylum seekers (111,184) in the current Court’s backlog. This is followed by Honduras with 101,195 and El Salvador with 97,260. Together, these three countries from the so-called Northern Triangle comprise 39 percent of the Court’s asylum backlog. Mexico with 82,837 asylum seekers and Venezuela with 71,991 complete the list of the top five.

Beyond these five dominant players, there are an additional nine countries with at least 10,000 asylum seekers in the current backlog. Driving the increasing asylum backlog have been the increasing numbers not just from Venezuela which is in the top five, but from Cuba and Brazil who are part of this longer nationality list. See Figure 6 and Table 6 for figures on the changing composition of asylum seekers from these fourteen countries.

As shown in Figure 6, in the midst of the growing backlog, four nationalities have actually seen net declines. During the last fourteen months since the end of FY 2021, declines have occurred in the number of asylum seekers from El Salvador, followed by Mexicans, Guatemalans, and asylum seekers from China.

The shifting composition of nationalities reflects not just the volume of individuals arriving at our borders seeking asylum, but the country’s policies and practices of which nationalities are being allowed to actually enter the U.S. and seek asylum. Asylum seekers from the Northern Triangle countries and Mexico were usually immediately turned away under Title 42 and not allowed to enter and seek asylum. The Biden administration has created some exceptions to this policy, exceptions that have been structured by nationality. For instance, as TRAC previously found, Ukrainian nationals were allowed to enter the country at ports of entry through a special program designed in response to the war in Ukraine. Later, using that same model, the Biden administration allowed 24,000 Venezuelan nationals to enter the United States for humanitarian reasons. The Biden administration has also allowed particularly vulnerable asylum seekers to enter the country through an exemption process, a process that has also benefitted Haitians, though at much smaller numbers and fewer ports of entry.

Asylum Backlogs Differ by Court Location

Historically, Immigration Courts in California and New York have had the largest asylum caseloads and decided the largest numbers of asylum claims. Over the years, these two states have experienced more asylum cases filed than any other locales. During FY 2022, for example, Immigration Courts in these two states accounted for just under half (48%) of all asylum cases decided on their merits.

But the location of asylum backlogs has been undergoing change as the location of new asylum filings has shifted. Florida has seen explosive growth in asylum filings. So has Massachusetts. These growth patterns have been driven in large part by shifts in the nationality groups seeking asylum in this country. Asylum seekers from Venezuela and from Cuba – two nationalities that have seen the largest rise – have tended to head to Florida. Most Brazilians have sought to start their new life in Massachusetts. And largely as a result, the asylum backlogs in these two states have experienced the largest growth. See Figure 7 and Table 7.

Asylum seekers from Mexico, Guatemala and El Salvador have been declining as we saw in Figure 6. California has been the largest destination for these groups, and we have seen a decline in the asylum backlog in California courts. Chinese asylum seekers have been another nationality with declining numbers. New York has historically been their primary destination, and in part as a result, as shown in Figure 7 courts in New York have experienced little increase in their backlog.

Backlogs, of course, are largely driven by having an inadequate number of judges available relative to the volume of asylum cases needing to be heard. So it is not surprising that as asylum seekers from different countries locate in different regions of the country and their relative numbers change, asylum backlogs will also reflect these changes.

Wait Times and How Quickly Do Cases Get Heard?

There is no simple answer to the question of how long asylum seekers have to wait before they can have their claims heard and decided. Under Biden administration initiatives, including the Dedicated Docket and the Asylum Officer Rule initiatives, some newly arriving asylum seekers are being moved to the head of the line and their hearings expedited. Indeed, criticism is growing that cases are being heard too quickly before the asylum seeker has a chance to locate an attorney, or for the attorney to prepare adequate support for the asylum claims.

For most others who are not detained, especially those who entered the backlog queue a while ago, the wait can be very long. An estimate of the average backlog wait times from when the case was filed in the Immigration Court to when their asylum hearing will be scheduled and their claims heard is currently 1,572 days, or 4.3 years.

Average wait times also vary by the location of the Court. Currently the Immigration Court based in Omaha, Nebraska has the longest wait time averaging 2,168 days. This is followed by the Court based in Newark, New Jersey where the average wait time is also over 2,000 days. See Figure 8. Table 8 contains a complete state-by-state listing of Immigration Court average wait times as of the end of November 2022.

But even these estimates are subject to a number of additional important caveats examined in the next section.

Serious Challenges to Estimating Average Wait Times

Estimating even average wait times poses serious challenges, so that any reported values resemble more “guesstimates” rather than something having a solid basis. The first problem is that even if TRAC had information for when each asylum seeker’s hearing was scheduled (which we do not) hearings schedules often change. Hearings are not infrequently cancelled because of the unavailability of the judge, or for other reasons. When hearings are scheduled further into the future, the odds that circumstances may arise requiring rescheduling also increases. A hearing can, of course, be postponed or advanced depending upon the needs and practices of that Court, or in some circumstances the needs of the parties.

The second challenge is that, in fact, the majority of hearings that will be needed are not yet even scheduled. Only about four out of ten (43%) individuals in the current asylum backlog have an actual individual proceeding scheduled to hear the evidence on the merits of that asylum seeker’s claims.

The remaining majority of cases fall into one of two groups. For 35 percent of those waiting in the asylum backlog, the hearing scheduled is still at the “master calendar” stage. For these initial hearings, a group of individuals are summoned to appear together where they are advised of their rights and procedures, the charges and factual allegations contained in the Notice to Appear (NTA) are explained, and cases are sorted as to what comes next. More than one of these master calendar hearings may occur if an individual needs more time to find an attorney to represent them, or an attorney once found, needs time to secure documents and obtain testimony to support the asylum application. Only after these master calendar hearings come to a conclusion, is an individual hearing scheduled on the asylum seeker’s claims. Only one hearing is set at any point in time. Thus, for those scheduled for master calendar hearings, no information is available on just when the actual merits hearing eventually may occur.

On the remaining 22 percent of asylum seekers waiting in the backlog, no hearing of either kind is currently scheduled. These don’t tend to be newly arriving cases. Those without any scheduled hearing have already been waiting an average of 1,092 days, or 3 years.

The percentage of asylum seekers with no next hearing scheduled has grown. For example, during FY 2020 only 12 percent of cases in the backlog had no hearing scheduled as compared with 22 percent now. However, this percentage varies a great deal. Some courts with thousands in their backlog such as Michigan, Missouri, North Carolina, and Pennsylvania have hearings scheduled on 95 percent or more of their cases. In contrast, courts in New York, Virginia and Washington State had respectively 43%, 46%, and 62% of asylum cases without any currently scheduled hearings. For these, it appears they are avoiding scheduling hearings too far in advance. See Figure 10 and Table 10.

Average wait times are of necessity based upon the recorded times of the next scheduled hearing for each case. Where many cases do not even have their asylum hearing scheduled, clearly the resulting estimate is a mere “guesstimate” at best.

Conclusion

In this report, TRAC examined half of the total (but likely undercounted) 1.6 million pending asylum applications, specifically the nearly 800,000 asylum applications in the Immigration Court backlog. Regardless of the many reasons for the growth in outstanding asylum applications, this large and growing number of applications has real consequences for the U.S. immigration system, for public and political discussion about asylum policy, and certainly for asylum seekers themselves. By taking a closer data-driven look at who is affected, where asylum cases are being heard, and how the Courts are processing these cases, TRAC hopes to provide a sober foundation for public understanding and debate.