Backlog of deportation cases more than doubled under Trump, tops 1.2 million

After four years of the Trump administration, the number of pending deportation cases in the nation's immigration courts has more than doubled, to more than 1.2 million, and the average wait time for a hearing is now 4.5 years.

Trump attempted to dramatically limit the independence of immigration judges, pushing them to make quick decisions, and creating a quota system in 2018 that required each judge to close at least 700 cases annually — tracked by a dashboard display on their computers that reminded the judges daily of their numbers.

The administration also moved to undermine the small measures of independence that existed for immigration judges — who are actually employees of the Justice Department, rather than part of the judiciary — from political appointees in the executive branch, leading to a long-term fight over the judges' union and its ability to criticize officials. 

Despite these moves, the backlog of pending immigration cases continued to rise, according to data from the Transactional Records Access Clearinghouse, a nonpartisan project based at Syracuse University. When Trump took office there were 542,411 pending cases in the nation's immigration courts, and by the start of 2021 that number has risen to 1,290,766. 

And, administration officials have said they would add an additional 300,000 cases, which are currently considered "inactive pending cases," and are not currently part of the overall national backlog. 

This backlog does include thousands of people who have been sent back to Mexico to await their immigration hearings under a program known as the Migrant Protection Protocols, or "Remain in Mexico." In December 2020, officials with DHS added 1,169 new people to MPP. The program had remained moribund during the COVID-19 pandemic, as officials moved to expel people under Title 42—based on a CDC public health order—but at its height, MPP added more than 12,000 people to the docket in August 2019.

"During the four years since Trump assumed power, none of his many policy changes made even a small dent in the pile-up of cases awaiting resolution," TRAC reported. "While the Trump administration hired many new immigration judges and implemented a range of different strategies aimed in part at reducing the Immigration Court backlog, the backlog grew each month." 

"Some of Trump's changes in court operations arguably slowed case processing," TRAC said. "However, the primary driver of the exploding backlog was not only the lack of immigration judges but the tsunami of new cases filed in court by the Department of Homeland Security." 

Among the courts, at least 35 had at least 10,000 cases still pending, and wait times now exceed four years on average. However, this varies across the nation, as some courts, especially those in what's known as the "detained docket," had significant lower delays than courts that handle non-detained cases. In the worst example, the Denver Immigration Court had a wait time of 2,324 days, or nearly six years. 

Among courts in Arizona, the court based at the Eloy Detention Center had just 164 cases backlogged, though it's average wait time was still signiifcant as immigrants could wait an average of 752 days. In the court in Tucson, immigrants waited on 1,488 days on average, and the court had 2,243 cases pending. And, in Phoenix, there were 12,209 pending cases, with an average wait time of nearly four years. 

The largest share of those waiting are people from Guatemala, followed by Honduras and Mexico. However, about 33,000 people from India are also waiting for their pending cases. 

Cubans have the lowest average wait time, among the top 10 nationalities, but still may wait around 958 days, TRAC said. 

"While the Trump administration has kept up a steady drum beat portraying most immigrants as criminals posing a risk to public safety, almost everyone in the court's current backlog—98.2 percent—have only been charged by the government with purely immigration violations," TRAC reported. More than half of those people faced entry without inspection, a common charge for people who did not come to the U.S. through a legal port of entry. Additionally, other immigrants faced charges and deportations for failing to have a valid visa, or were present in the country without authorization. This latter group would include people who entered the U.S. legally, but overstayed their visa. 

About 1.3 percent of all cases were based around criminal activity, and a vanishingly small percentage, about 0.3 percent, or around 3,700 cases included an aggravated felony. "Crimes involving 'moral turpitude,' various controlled substance violations, and conviction for an aggravated felony are the criminal charges most commonly cited as deportable criminal ground, TRAC wrote. 

"Even more important than simply the total number of pending cases, however, is the fact that each pending case represents a person facing what the Supreme Court has called 'the severe penalty' of deportation," TRAC noted.  "Each deportation case can be complex given the various types of deportation relief—including asylum and many other categories of relief—explicitly created by Congress to enable specific classes of immigrants facing deportation to remain in the U.S." 

"The Biden administration, therefore, faces the quantitative and qualitative challenge of how to address the enormous backlog in a way that is consistent with the spirit and the letter of the law," TRAC said. 

The data shows 95 percent of people must wait more than 447 days for their next scheduled hearing, and often "more than one hearing may be required." 

James McHenry, the director for the Executive Office for Immigration Review, told the Senate in November 2019 that during an influx of Central American families seeking asylum in the United States, DHS filed more than 443,000 new cases with the immigration courts, "which is the highest number in a single year in EOIR’s history." McHenry said that during the Trump administration EOIR had "made considerable progress in the past 29 months in restoring its reputation as a fully-functioning, efficient, and impartial administrative court system fully capable of rendering timely decisions consistent with due process." However, the increase of new asylum claims on EOIR's "already-crowded dockets diverts resources from more effectively addressing those claims that are meritorious." 

However, as TRAC noted, the active backlog grew 16 percent from January 2017 to September, and then climbed again an additional 22.1 percent during the fiscal year of 2018. During 2019, the backlogged jumped another 33.3 percent, due in large part to the shutdown of the federal government, which was predicated on the president's insistence that Congress budget nearly $7 billion for the border wall. At least 43,000 hearings were canceled during the shutdown. 

Even with the onset on the COVID-19 pandemic, which shutdown immigration courts nationwide, the backlog increased by an additional 19,917 cases each month, only slightly fewer than the average of 21,293 per month during FY 2019, TRAC said. 

McHenry told the Senate that after 2019, nearly half of EOIR's caseload at the time, or around 482,000 cases, involved applications for asylum, and said that even while judges faced more asylum claims, they granted fewer applications. He noted that cases for unaccompanied minors, or children traveling without parents or guardians, had increased 1,200 percent from 2013 to 2019, and included more than 9,000 cases. Of those about 30 percent were pending for more than three years, but he said that in 2019, only 431 kids received asylum and fewer than 20 percent of cases ended with an order of relief, or a termination of the case. 

"Our immigration system faces numerous challenges, and the current level of illegal immigration is foremost among them. EOIR shoulders significant downstream effects of surges of illegal immigration at the border, and those effects in recent years have placed a significant strain on its resources," McHenry said. 

"After eight consecutive years of declining or stagnant productivity between FY 2009 and FY 2016, EOIR recently concluded its third consecutive year of increased immigration court case completions," McHenry proudly told the Senate, and said that 150 judges had completed at least 700 cases in 2019. "Perhaps most importantly, the increases in productivity did not lead to increased allegations of judicial misconduct. To the contrary, despite notable increases in the number of immigration judges, the number of hearings, and the number of completed cases, the number of complaints against immigration judges fell for the second consecutive fiscal year." 

McHenry also noted EOIR had gone on a hiring spree, hiring more new judges under the Trump administration than were hired in the seven years previous. By September 30, 2019 the agency had added 442 immigration judges, speeding up the time it takes to hire someone for the practice from 742 days to just 195 days, McHenry said. 

"These results are a testament to the professionalism and dedication of our immigration judge corps," McHenry said. "These results unequivocally prove that immigration judges have the integrity and competence required to resolve cases in the timely and impartial manner that is required by law." 

However, a "roundtable" of immigration judges argued in materials submitted as part of a January 2020 hearing with the House judiciary committee that "extremely disturbed by this administration’s systemic and unprecedented efforts to undermine Immigration Judges’ independence and neutrality." While the union, the National Association of Immigration Judges, had managed to "maintain decision making independence even when faced with increased caseloads and political pressures," nonetheless the group criticized the Trump administration's maneuvers. 

"Such efforts have proceeded seamlessly through three different Attorneys General," the group wrote, noting that during the Trump era, the DOJ was led by former Senator Jeff Sessions, Matthew Whitaker, and William Barr.  "Even Matthew Whitaker, acting as a caretaker and with no prior immigration law background, managed in his brief time in charge to certify two cases to himself, one of which was a decision of the BIA which had denied asylum and created a difficult standard for those seeking asylum based on their family ties, in order to make such standard even more daunting," the group wrote. 

"The three Attorneys Generals have together abused their certification power to circumvent the intent of Congress by rewriting our nation’s immigration laws," the group wrote. 

The group said that the AGs had eliminated "precedent decisions" forcing longer cases, while also the same time had "greatly expedited the hearings of those who are often most vulnerable, while requiring a growing number of asylum-seekers to either wait in Mexico in a state of homelessness, with little access to counsel or ability to be able to gather evidence; or to alternatively be detained in horrific conditions in remote detention facilities, all with little to no access to counsel." 

All together, the group argued that the Trump administration had reshuffled dockets to "assure that cases are heard based on the political priority of the day as opposed to due process concerns, has resulted in unprecedented, sky- rocketing backlogs." 

"The backlog has increased exponentially despite the dramatic increase in Immigration Judge appointments, most of which have favored individuals with enforcement backgrounds. Some have wondered if this is an attempt to implode the Immigration Court system, but whether it is intentional or not, this could be the ultimate effect," the group said. 

To solve this, the judges pushed for Congress to pull immigration judges out from under EOIR and make them an independent judiciary under Article 1 of the U.S. Constitution. 

"Currently, immigration judges are responsible for carrying out formal adjudications; yet, due to bureaucratic resistance within DOJ and DHS, they are deprived of the judicial authority – expressly conferred by Congress – to impose contempt sanctions upon noncompliant parties when necessary," wrote members of the Federal Bar Association in their own letter submitted to the panel. "They also lack independence to freely decide the matters before them and are measured negatively in their performance when the Attorney General disagrees with their decisions and remands the respective cases." 

The bar association asked Congress to make immigration judges subject to presidential nominations, and follow the same practice that currently guides judges, including federal judges known as magistrate judges, and those who oversee bankruptcy courts. 

"Even if the administration halted immigration enforcement entirely, it would still take more than President-elect Biden's entire first term in office—assuming pre-pandemic case completion rates—for the cases now in the active backlog to be completed," TRAC wrote. 

"When grappling with decisions shaping immigration policies going forward, this gigantic pile-up of cases awaiting resolution is an important part of President Trump's departing legacy," TRAC wrote. "President-elect Biden now must consider how his administration can successfully tackle this backlog, something that previous administrations have found to be a perennial and seemingly intractable problem."