25 Years of Immigration Court Decisions

Published Mar 9, 2023

As TRAC recently reported, Immigration Court case closures are headed to a new high this year. But are we also headed to record numbers of removal orders or grants of relief?

This report attempts to answer this question by examining the outcomes of Immigration Court decisions on deportation cases [1] through the wider lens of history. Results presented compare the last two years under the current president, Joe Biden, with four previous presidential administrations stretching back 25 years to when Bill Clinton was president.

This report is made possible by the data TRAC developed to support a brand new free web query tool which allows any member of the public to examine and drill into the outcomes of 25 years of Immigration Court proceedings.

Immigration Court Removal Orders

As shown in Figure 1, the number of removal orders issued by Immigration Judges during President Biden while high are not necessarily setting a new record. Even projections of the pace of removal orders for the first four months of FY 2023 may only tie the actual records set back in FY 2005 and FY 2006. In each of those two years during President George W. Bush’s administration, a record 200,000 removal orders were issued.

If we look at this not in terms of raw numbers, but as a percentage of case closures, the Biden administration has actually the lowest rate of removal orders. During both FY 2021 and FY 2022, just a third (32%) of closures were removal orders. [2]

So far this year, 44 percent of case closures have resulted in removal orders. This is tied with the fourth lowest annual rate during the past 25 years. The earlier lows occurred during the Obama presidency.

As shown in Figure 2, removal orders made up the highest percentage of court closures back in FY 2005 when 74 percent of all cases ended in removal orders. This occurred when the number of removal orders also peaked during President George W. Bush’s years. The next highest rates occurred the following year in FY 2006, when 71 percent of cases ended in removal orders. This high percentage wasn’t again matched until FY 2020, the last year of the Trump presidency.

Grants of All Types of Relief

Most proceedings in Immigration Court begin when the Department of Homeland Security seeks a removal order authorizing them to deport a noncitizen from this country. Even if an individual is found to be legally subject to removal, the noncitizen can claim that they should receive relief from removal under long existing provisions of the immigration laws.

To have these claims heard immigrants must file formal applications for relief, citing the specific grounds and the evidence supporting their claims. However, it would be a rare individual who has sufficient knowledge to do this by themselves. In a recent report, TRAC found that in almost two-thirds (63%) of all deportation cases, no application for any forms of relief were filed.

The process of screening for relief—i.e. reviewing a case to determine if an individual is even eligible for any type of relief—can be demanding and requires specialized knowledge of the various types of relief available. Thus, individuals without representation are at a distinct disadvantage. The deportation consequences of having a path to legal status and not applying for it (or not even being aware that one could apply for it) would strike many people as tragic.

Thus, deportation cases typically involve two key steps: the first involves determining if an individual is removable under U.S. immigration law. If a judge determines an individual is not removable, they will terminate the case at this junction. However, even if the noncitizen is found removable, the case can move to a second step to determine whether the individual is eligible for any form of relief that enables (or requires) the government to allow that person to remain in the United States. There are dozens of these “relief” provisions, each explicitly created by Congress to enable specific classes of immigrants facing deportation to legally remain in this country.

Grants of Relief Reach New Highs

Of the cases not ordered removed over the past 25 years, the most common reason is that an Immigration Judge granted relief from removal under one of these numerous provisions Congress has enacted. Over the last quarter century, relief has been granted by an Immigration Judge in slightly over 700,000 decisions, or 13 percent of all deportation cases.

In annual terms, this works out to an average of around 28,000 a year. Prior to the Biden administration, the largest number of immigrants granted relief was around 35,000. This occurred in FY 2006 (when removal orders approached 200,000), and in FY 2019 (when removal orders of 187,000 were also unusually high). See Figure 3. This reflects the fact that year-to-year, the proportion of persons who receive a grant of relief is surprisingly similar. As decisions rise, generally so do grants of relief. Indeed, roughly half of the time the annual percentage has been within +/- one percent of this quarter century average.

During the Biden administration, relief grants reached a new high of 39,738 cases, and FY 2023 is on pace to break even that record. However, a below average proportion of cases resulted in grants of relief so far under Biden. During FY 2022 relief grants occurred in just 11 percent of all decisions. And so far during the first four months of FY 2023 only 10 percent of individuals have been granted relief.

Asylum Versus Other Types of Relief

While grants of asylum receive the most public attention, immigration statutes, as we have noted in the past, contain many other types of relief from removal. If fact, over the past two decades, asylum grants are slightly less than half (46%) of all grants of relief the court awarded. See Figure 4. However, the relative proportion of other forms of relief has varied across time. Generally during the period from FY 2001 through FY 2010, the percent of all grants of relief accounted for by asylum awards fell. The low reached in 2010 was 32 percent when just a third of relief grants were for asylum. Since then, except for FY 2021 (where many courts were shuttered during the pandemic), grants of asylum have outpaced grants of other forms of relief. FY 2023 is on pace thus far for asylum to reach 72 percent of all grants of relief. These rising percentages no doubt reflect, in large part, the growing numbers of asylum seekers that have sought sanctuary in the United States, even though in recent years only a proportionately few [3] have been given the opportunity to present their case before the Immigration Court.

Case Outcomes Impacted by Attempts to Reduce the Court Backlog

Twenty-five years ago, the Immigration Court’s backlog was just 129,505. A decade later it had reached 186,108. The pace of hiring new judges did not keep up with the growth in workload even during this ten-year period, so that over time the Court’s backlog inched upward. But during this first decade unlike today, the backlog might rise one year, but then fall the next year. It hadn’t yet entered the recent period of significant growth.

During this initial decade about one quarter of case closures allowed the immigrant to remain in the U.S. The noncitizen was allowed to stay not only because relief was ordered, but because some cases were terminated when the government didn’t demonstrate that the immigrant was in fact deportable. In addition, a relatively small proportion of noncitizens were allowed to remain in the country for other miscellaneous reasons. See Figure 5.

After FY 2008, the pattern shifted. The court backlog kept increasing year-after-year. This generated growing pressures to get the backlog under control and to reduce lengthening delays that individuals had to wait before their cases was heard. Reducing the backlog became a higher and higher priority. In response, administrations adopted different strategies to increase case closures.

The Obama administration increased the use of administrative closures. A formal policy was adopted which required prosecutors to screen pending court cases and determine when some should be administratively closed based on prosecutorial discretion to allow the court to focus on cases deemed of greater importance.[4] The end result was that by the final year of the Obama administration, over twice the proportion of immigrants were allowed to remain in the U.S. – some permanently, others at least temporarily – than in previous years. Indeed, during FY 2016, immigrants were allowed to remain in 54 percent of all Court closures. This is graphically shown in Figure 5 by the sharp increase in the blue area depicting these increasing “other closures.”

Then when President Trump assumed office, the court’s policies sharply shifted. In August 2020, the Executive Office of Immigration Review (EOIR) proposed a new rule that effectively eliminated administrative closure as a docket management tool for Immigration Judges. While this change in fact contributed to the growth in the backlog, it also dramatically changed how cases were closed. As can be also seen in Figure 5, these administrative closures were sharply curtailed. The proportion of immigrants allowed to remain in the U.S. by Immigration Judges plummeted to just 22 percent in FY 2019 and FY 2020.

Then policies shifted once again when President Biden assumed office. The proportion of immigrants allowed to remain in the U.S. jumped to 64 percent in FY 2021 and 66 percent in FY 2022. This result was three times the proportion under the Trump administration.

This increase was driven largely by the sharp jump in judge-ordered terminations rather than a resurrection of administrative closures. Some of these terminations, as TRAC reported earlier, targeted really old cases where the circumstances may have changed with time, and the grounds for a removal might no longer be present.

However, part of the increase in terminations occurred as a result of a new EOIR directive.[5] This June 2021 directive encouraged case dismissals (without prejudice) based on prosecutorial discretion. Unlike earlier closures during the Obama administration based on prosecutorial discretion (PD), these were not administrative closures which could easily be put back on the Court’s calendar. Instead, these were official case closures (“decisions”) that would require a motion to reopen a case or the issuance of a new NTA.

Conclusion: What Lies Ahead

Thus far during the first four months of FY 2023, the proportion of immigrants in removal proceedings who are allowed to stay in this country has fallen from 66 percent down to 54 percent. As part of this drop, there has also been a decrease in the proportion of noncitizens who have been granted relief. Compared with 17 percent granted relief during FY 2021, the rate fell to 11 percent during FY 2022 and just 10 percent so far this year. As TRAC earlier reported, expediting the speed at which asylum cases have been heard has resulted in a significant drop in the proportion of asylum seekers who have been granted asylum.[6]

A larger component of this drop has occurred for closures which were terminations. These fell from 43 percent of all case closures during FY 2021 and 44 percent during FY 2022, to just 36 percent so far this year. This drop was not because the actual number of terminations fell. These have stayed at about the same level. See Table 1. However, as the volume of closures has increased their proportion of the total has fallen. As also shown in Table 1, both the number and proportion of removal orders have increased.

What lies ahead remains uncertain. With so many changes in policies at the border as to who will be allowed into the U.S. to claim asylum, and the announced shift to having increasing numbers of these cases first heard by asylum officers within USCIS rather than by Immigration Judges, the workload and composition of cases heard by Immigration Judges will no doubt change. And these shifts in the Court’s workload will naturally also influence the decisions rendered by Immigration Judges in the months ahead.