U.S. Immigration Courts have Over 2,000,000 Case Backlog

The Border Patrol was more than 2.2 million encounters Illegal crossers between Southwest border ports in fiscal 2022.   

A recent report from the DHS Inspector General indicates that most of the illegal crossers They are not sent to detention or expelled under Title 42. Instead, they are processed for results that allow them to be released to the United States to await immigration hearings. This has caused chaos in the immigration courts.  

The backlog of immigration court cases was 1,262,765 at the end fiscal 2020. This was the last full fiscal years of the previous administration. It has now reached 2,023,441 cases under the current administration as of November 2022.  

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Almost 800,000 of them have submitted Asylum applications are being processed and they are awaiting a hearing. The average wait from when an application is filed to when an applicant’s case will be heard is 1,572 days, or 4.3 years.  

Alejandro Mayorkas, DHS Secretary, has been criticised for not enforcing border enforcement.
(AP Photo/Jose Luis Magana).

Furthermore, there are many others who have been permitted to enter the United States in order to wait for an asylum hearing. However, they have not yet filed an application for asylum. When Title 42 is repealed, the number of asylum-seekers will increase dramatically. 

This administration seems to be determined to solve the problem by finding quicker ways to adjudicate applications, rather than admitting fewer asylum applicants to allow the immigration court to catch up. 

The administration announced, for instance, a new dedicated docket on May 28, 2021. This is to speedily and fairly resolve immigration cases of newly arrived family members who are arrested at Southwest Border ports. INA §1325(a) provides that such entries are crimes subject to imprisonment for up to two years. 

Alejandro Mayorkas, Secretary of DHS, stated in the announcement that “Families who have recently arrived should not languish in a multi-year backlog; today’s announcement is an important step for both justice and border security.”  

At the end fiscal 2020, the backlog of immigration court cases was 1,262,765 which was the final full fiscal year under the previous administration. It has now reached 2,023,441 cases under the current administration as of November 2022.  

He refers to the newly arrived families, and not the families already stuck in the multiyear backlog. 

The announcement concluded that while “the goal of this process is to decide cases expeditiously, fairness will not be compromised.” 

Dedicated dockets are neither new nor fair. 

Trump and Obama had designated Dockets to accommodate newly arrived migrants, so they didn’t have to wait long to be heard. 

The Vera Institute of Justice claims that as prior efforts to use expedited dockets have demonstrated, Dedicated Dockets do not provide due process. Court records over two years during the Obama administration indicate that it was uncommon for an unrepresented relative to file papers in Dedicated Docket proceedings for asylum or other forms relief from deportation. This was only one in fifteen (6.5%) who managed it without representation. 

According to a recent TRAC report, more than 110,000 cases have been assigned to the current administration’s Dedicated Docket, and nearly 40,000 of them have been completed. The majority (83%) of cases that were completed were closed within 300-days of receiving a Notice of Appearance in removal proceedings.  

This is not without cost. Georgetown Law School Professor Paul Schmidt points out that when Dedicated Docket judges are not available to hear cases on the general docket, it places extra burdens on their judicial colleagues who are handling the general docket cases. 

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The Dedicated Docket allows judges to be removed from the general docket and serve as a specialized docket judge. This reduces the number judges available for cases that would reduce the backlog.  

TRAC found that only 34% had representation and very few families were able complete the paperwork needed to file an asylum application.  

Overall, only 2,894 out of 39,187 families who had hearings in fiscal 2022 were granted asylum. Only 7.4% of cases were granted asylum. 

This problem would be addressed by the Vera Institute of Justice, which provides representation for all migrants in Dedicated Docket proceedings.  According to the Institute “No immigrant should be forced to go through immigration court proceedings without legal defense.”  

Is it even possible?  If it is possible, who will pay?  INA §1229a(b)(4), which provides that migrants have the “privilege of being represented” In removal proceedings, it is specified that it must be “at no expense to the Government.” 

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To be honest, I believe the biggest problem is that the administration has been flooding our already overwhelmed immigration court by a tsunami illegal crossers who claim they are asylum seekers. 

The attempt to relieve the immigration court’s backlog crisis with a Dedicated Docket didn’t work for the Obama administration and it isn’t working for the current administration either.

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