While debate over immigration enforcement focuses most often on the border with Mexico and the actions of Immigration and Customs Enforcement in the interior of the country, the immigration courts, the part of our immigration system where most of those apprehended ICE end up, shows a pattern of budget neglect and increasing stagnation over several administrations. An ever-growing case backlog reached a peak in 2018, accompanied by increases in judge hiring and budgets to attempt to combat it.1 However, this followed years of flat or negative budgets and declines in the number of immigration judges. As a result, these issues have ossified the immigration system’s ability to adjudicate asylum cases and removals in the wake of the major extraordinary migration event at the southern border.
This paper examines how immigration courts impacted the state of interior enforcement in 2018 and discusses broader enforcement trends. Although the immigration court system has received recent funding to hire more immigration judges, the combination of an inadequate cadre of judges, a backlog inherited from the previous administration, and an influx of new cases from President Donald Trump’s expansion of interior enforcement actions and asylum applications at the border has generated a mountain of pending cases that have undermined the system’s ability to effectively fulfill its enforcement and humanitarian role.
Data shows that the immigration court system has received an increasing number of cases since 2015, even while the Department of Justice was hiring more immigration judges. As Figure 1 shows, the number of cases grew from 202,312 in 2015 to 317,756 in 2018, a trend that reflects the increase in interior enforcement activity during the initial year of the Trump administration and the increase in asylum cases at the border. At the same time, the number of judges increased from 254 to 338 in 2017 following a precipitous decline between 2013 and 2014. DOJ hired more immigration judges in fiscal year 2018, bringing the current number to 395. By the first quarter of 2020, DOJ had hired a total of 466 immigration judges.
In terms of case types, removals of non-citizens have formed the majority of cases that immigration courts have received since 2008. As Figure 2 shows, this category was the dominant group, driving the growth of total cases received during this period. Although removals were high during President Barack Obama’s first term in office, these numbers decreased between 2011 and 2015 as the Obama administration began targeting higher priority criminals for removal. However, this number increased significantly in 2017 as the Trump administration began expanding arrests against more undocumented immigrants.
Removals have also become the largest group of completed immigration court decisions, reflecting their greater proportion of the overall caseload. As Figure 3 shows, removals were the largest group of initial case completions where judges made their first dispositive decision on a case even while the total number of removals decreased between 2012 and 2013. Credible fear and reasonable fear have also emerged as a small but significant category, which likely reflects the large number of unaccompanied children and families seeking humanitarian protection in their removal cases during this period.
Removals were also the largest category for subsequent case completions where judges issued a decision after an initial case completion. As Figure 4 shows, removals were the dominant category for these types of decisions between FY2012 and FY2018. In contrast to initial case completions, which rebounded in 2015 after dropping between 2012 and 2014, subsequent case completions dropped steadily between from 2012 to 2017. This trend reflects the efforts of the Department of Homeland Security and the Executive Office for Immigration Review (EOIR) within DOJ to prioritize the large number of asylum cases stemming from the influx of Central American children and families arriving at the U.S.-Mexico border to seek humanitarian protection during this period.
Data from the Transactional Records Access Clearinghouse shows that courts have removed individuals primarily for violations of immigration law and not criminality. As Figure 5 shows, most immigrant deportation charges were for “entry without inspection” and “other immigration charge,” which are typically cases of violating procedural requirements, overstaying visas, or breaching conditions of entry. The number of removal proceedings for these two categories significantly increased from 2016 to 2018 by over 20,000 in each category.
The number of new removal cases has vastly outpaced the combined number of initial and subsequent case completions in recent years. As Figure 6 shows, the number of received removal cases was considerably larger than the total number of completed cases, especially between 2014 and 2017. In 2017, for instance, the court received 291,430 removal cases while only completing 172,112 cases.
The imbalance between received cases and completed cases has contributed to the expansion of the immigration court backlog. As Figure 7 shows, the backlog grew from 408,037 cases in 2015 to over 1 million cases by FY2020, which largely stems from the lack of immigration judges to process the influx of new asylum cases from migrants arriving at the U.S.-Mexico border. Former Attorney General Jeff Sessions’ decision to add 330,000 administratively closed cases to the immigration court system’s “pending” docket compounded these problems further. As the backlog has grown, the average processing time increased from 567 days in 2014 to 702 days in 2020.2
Against this backdrop of activity, Congress has increased funding for EOIR within DOJ which oversees the immigration court system. As Figure 8 shows, the budget increased from $312 million in 2014 to $504 million in 2018, reflecting efforts to hire more immigration judges and boost its capacity through measures like updating the system’s paper filing system. While EOIR’s budget has increased, this amount is low compared to ICE’s Enforcement and Removal Operations (ERO) budget: ERO’s budget increased by almost $1 billion between 2016 and 2019 while the EOIR’s budget increased by only approximately $84 million during this period. For FY2019, EOIR requested a budget of $563.4 million, which is a 28.9% increase over the FY2018 Continuing Resolution. Given that interior enforcement arrests and border asylum cases have increased in recent years, the immigration court system has not received the same levels of funding as ERO to adjudicate these cases, which contributes to the growth of the system’s backlog.
As Figure 9 shows, under the Obama and Trump administrations DOJ requested more judges as part of several EOIR budget requests between 2014 and 2018 after asking for none in 2013 and 2017 due to hiring freezes and sequester. However, DOJ has only hired 395 new judges even though Congress set goals to hire 484 by 2019. Hiring immigration judges has been a challenge for agency, even with sufficient funding. A 2017 Government Accountability Office report found that EOIR lacked formal hiring strategies to hire judges despite these increases in funding, which contributed to an average wait time of 647 days to complete the hiring process for immigration judges. The retirements and resignation of immigration judges has also contributed to the system’s shrinking pool of personnel to oversee these cases.
Broadly, the data suggests that in recent years the sheer size of the immigration court case backlog has reduced the immigration court system’s effectiveness as part of the immigration enforcement system. As the immigration courts have received more interior enforcement removal and border cases, the data shows that institutional limitations, like the number of immigration judges and attorney general decisions limiting judicial discretion, have undermined the court’s ability to complete the increased number of cases. While Congress has allocated more funding for DOJ to hire more judges, these actions have not been enough to reduce the growing immigration court backlog, meaning that the administration must expand these hiring efforts.
The Central American migrant crisis at the U.S.-Mexico border has also compounded the problems related to the immigration court backlog. Although the number of apprehensions at the U.S.-Mexico border remained low by historical standards, the surge in the number of family unit apprehensions in 2018 and 2019 contributed to the backlog because most of these families sought asylum, deteriorating the court’s effectiveness. Although Congress did appropriate funds to address the backlog in the FY2019 Department of Justice budget, President Trump’s calls to eliminate immigration judges in response to the border crisis makes it unclear if DOJ will continue to hire more judges or whether the Administration’s interior enforcement strategy stalls in the immigration courts. Given the stressors pushing the immigration court system to a breaking point, the system needs additional judges and staff and a massive overhaul of its infrastructure to address the immediate case backlog and prevent its growth in the future.
1 The analysis in this blog post is based primarily off of the Executive Office of Immigration Review’s fiscal year 2018 Statistics Yearbook. As of publishing this blog post, the FY2019 Statistics Yearbook has yet to be released.
2 This figure is according to TRAC as of April 15, 2020.