McALLEN, Texas (Border Report) — A historic backlog of over 2 million immigration cases, plus years of delays in scheduling hearings, is drawing migrants to illegally cross the border, according to a new report.
“At the Breaking Point: Rethinking the U.S. Immigration Court System,” by the Migration Policy Institute, blames “long-standing operational challenges in administering the courts,” as well as “new crises” in other countries that are leading to historic numbers of asylum-seekers that are piling on to an overly burdened court system for the backlog.
Asylum cases now comprise 40% of immigration court caseloads, and noncitizens wait an average of four years for a hearing on their asylum claims to be scheduled. Final outcomes take longer, according to the report released Thursday.
The result is thousands of migrants become intertwined into the U.S. economic system with family and community ties during the years they wait for their asylum outcomes.
The report also finds that most migrants denied asylum are not returned to their home countries, which “lies at the heart of our broken asylum system. That brokenness contributes to the pull factors driving today’s migration to the U.S.-Mexico border, thereby undermining the integrity of the asylum and immigration adjudicative systems, and immigration enforcement overall.”
That brokenness contributes to the pull factors driving today’s migration to the U.S.-Mexico border.”
Migration Policy Institute
Nationwide, there are about 650 immigration judges, and overall, they complete fewer than 500 immigration cases per year, according to the report.
The coronavirus pandemic caused court delays — leading to a decline in annual result rates. In Fiscal Year 2009, each immigration judge completed about 1,000 cases per year; this dropped to 200 in FY 2021, the report found.
In FY 2022, there were 230,389 defensive asylum applications filed — the most ever since records began in FY 1996, according to the Congressional Research Service.
There are currently 2.4 million backlogged immigration cases, according to the Transactional Records Access Clearinghouse (TRAC) of Syracuse University, which tracks all cases.
The most pending immigration cases, 376,000, are in Florida. Texas follows with 331,000 cases and California is third with 273,00 backlogged cases, according to TRAC.
Title 8 new pathways
The lifting of Title 42 in May coupled with the Biden administration’s resumption of Title 8 enforcement policies — which require asylum-seekers to apply for interviews via the CBP One app and forbids them from illegally crossing the border in order to be considered for parole — have added to court challenges, the MPI report found.
And this makes reforming the immigration court system “more urgent than ever,” the report says.
EOIR
Immigration courts are under the Executive Office for Immigration Review, an agency within the Department of Justice.
Criticism of decisions by immigration judges has existed for decades, and in Fiscal Year 2020, more than one in five immigration court decisions were appealed.
Noncitizens do not receive federal funds for immigration legal representation, but there are state and local funding and many nonprofits provide pro bono services.
The report suggests that EOIR should work with non-governmental organizations and nonprofits to ensure access to legal representation for all asylum seekers.
Credible fear interviews
In 2022, the Biden administration began allowing U.S. Citizenship and Immigration Services officers from DHS to make final decisions in asylum cases, instead of immigration judges. However, this rule was suspended when Title 42 was lifted in order to free up asylum officer resources.
The report suggests that returning to allowing USCIS officers to conduct these interviews “will be important for managing the flow of cases into the immigration courts and the courts’ ability to keep pace with them.”
Other MPI report suggestions include:
- Schedule new cases on a “last-in first-decided” bases as an emergency measure, but also focus resources on older cases to shrink the backlog.
- Terminate cases that do not meet prosecutorial guidelines, such as security threats, recent entrants and felons.
- Establish two tiers of immigration judges — magistrate and merits judges — which is done in federal and state court systems to more efficiently move cases through.
- Expand the use of specialized dockets or courts that handle cases involving specific groups of noncitizens or require certain expertise like juveniles, families, reviews of credible fear determinations, cancellation of removal, adjustment of status, and voluntary departures.
- Utilize technology, like video conferencing, to enable more court cases to be heard per day.