http://trac.syr.edu/immigration/reports/536/
Immigration Court Backlog Surpasses One Million Cases
Figure 1. Immigration Court Workload, FY 2018The Immigration Court backlog has jumped by 225,846 cases since the end of January 2017 when President Trump took office. This represents an overall growth rate of 49 percent since the beginning of FY 2017. Results compiled from the case-by-case records obtained by TRAC under the Freedom of Information Act (FOIA) from the court reveal that pending cases in the court’s active backlog have now reached 768,257—a new historic high.
In addition, recent decisions by the Attorney General just implemented by the Executive Office for Immigration Review (EOIR) have ballooned the backlog further. With a stroke of a pen, the court removed 330,211 previously completed cases and put them back on the “pending” rolls. These cases were previously administratively closed and had been considered part of the court’s completed caseload[1].
When the pending backlog of cases now on the active docket is added to these newly created pending cases, the total climbs to a whopping 1,098,468 cases! This is more than double the number of cases pending at the beginning of FY 2017.
Pending Cases Represent More Than Five Years of Backlogged Work
What does the pending case backlog mean as a practical matter? Even before the redefinition of cases counted as closed and cases considered pending, the backlog had reached 768,257 cases. With the rise in the number of immigration judges, case closures during FY 2018 rose 3.9 percent over FY 2016 levels, to 215,569. In FY 2017, however, closure rates had fallen below FY 2016 levels, but last year the court recovered this lost ground[2].
At these completion rates, the court would take 3.6 years to clear its backlog under the old definition if it did nothing but work on pending cases. This assumes that all new cases are placed on the back burner until the backlog is finished.
Now, assuming the court aims to schedule hearings eventually on all the newly defined “pending” cases, the backlog of over a million cases would take 5.1 years to work through at the current pace. This figure again assumes that the court sets aside newly arriving cases and concentrates exclusively on the backlog.
Table 1. Overview of Immigration Court Case Workload and Judges
as of end of FY 2018
Number of
Cases/JudgesPercent Change
Since Beginning
of FY 2017New Cases for FY 2018 287,741 7.5% Completed Cases for FY 2018 215,569 3.9% Number of Immigration Judges 338/395* 17.0% Pending Cases as of September 30, 2018: On Active Docket 768,257 48.9% Not Presently on Active Docket 330,211 na Total 1,098,468 112.9% Why Does the Backlog Continue To Rise?
No single reason accounts for this ballooning backlog. It took years to build and new cases continue to outpace the number of cases completed. This is true even though the ranks of immigration judges since FY 2016 have grown by over 17 percent[3] while court filings during the same period have risen by a more modest 7.5 percent[4].
Clearly the changes the Attorney General has mandated have added to the court’s challenges. For one, the transfer of administratively closed cases to the pending workload makes digging out all the more daunting. At the same time, according to the judges, the new policy that does away with their ability to administratively close cases has reduced their tools for managing their dockets.
There have been other changes. Shifting scheduling priorities produces churning on cases to be heard next. Temporary reassignment and transfer of judges to border courts resulted in additional docket churn. Changing the legal standards to be applied under the Attorney General’s new rulings may also require judicial time to review and implement.
In the end, all these challenges remain and the court’s dockets remain jam-packed. Perhaps when dockets become overcrowded, the very volume of pending cases slows the court’s ability to handle this workload – as when congested highways slow to a crawl.
Footnotes
[1] The court also recomputed its case completions for the past ten years and removed these from its newly computed completed case counts. Current case closures thus appear to have risen because counts in prior years are suppressed. Further, the extensive judicial resources used in hearing those earlier cases are also disregarded.
[2] For consistency over time, this comparison is based upon the court’s longstanding definition, which TRAC continues to use, that includes administratively closed cases in each year’s count. Under this standard, numbers are: 207,546 (FY 2016), 204,749 (FY 2017), 215,569 (FY 2018).
[3] The court reports that the numbers of immigration judges on its rolls at the end of the fiscal year were: 289 (FY 2016), 338 (FY 2017), and 395 (FY 2018). The 17 percent increase only considers judges who were on the payroll for the full FY 2018 year. See Table 1. For more on judge hires see: https://www.justice.gov/eoir/page/file/1104846/download
[4] New court cases based upon court records as of the end of FY 2018 were: 267,625 (FY 2016), 274,133 (FY 2017), and 287,741 (FY 2018). Due to delays in adding new cases to EOIR’s database, the latest counts may continue to rise when data input is complete. TRAC’s counts use the date of the notice to appear (NTA), rather than the court’s “input date” into its database. While the total number of cases across the FY 2016 – FY 2018 period reported by TRAC and recently published by EOIR are virtually the same, the year-by-year breakdown differs because of the court’s practice of postponing counting a case until it chooses to add them to its docket.
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