Backlogs in U.S. immigration courts are up 38 percent since Trump took officeBacklogs in U.S. immigration courts are up 38 percent since Trump took office, with the biggest increases in Maryland, Massachusetts and Georgia
- U.S. immigration courts have had a 38 percent increase in case backlog since President Trump took office
- Nationwide, there are 746,049 pending cases before 351 immigration judges, up from 542,411 in January 2017
- The Department of Justice has recently hired 23 new judges and streamlined the process for hiring judges, but many experts say other Trump administration policy changes continue to exacerbate the system
The U.S. immigration court system is straining to accommodate cases, with a 38 percent increase in the backlog since President Trump took office, according to a new analysis of government data.
Nationwide, there were 746,049 pending cases as of July 31 – up from 542,411 at the end of January 2017, according to the Transactional Records Access Clearinghouse at Syracuse University.
‘It’s a fairly remarkable increase – nearly 40 percent in 18 months,’ former immigration Judge Paul Wickham Schmidt told DailyMail.com. ‘It shows that the policies being followed by this administration are making things worse rather than better.’
The increase in caseload has occurred unevenly, with 10 states responsible for the majority of the growth in backlogged cases.
While not every state has immigration court, immigrants living in each state have cases before an immigration judge. This map illustrates where people with pending immigration cases are living
Maryland had the highest increase (96 percent), with 33,384 backlogged cases as of July 31, compared to 17,074 at the end of January 2017.
Massachusetts followed, with a 76 percent increase to 26,782 cases, compared to 15,208 cases 18 months earlier.
No sane person would look at this and think that throwing more cases into this system would be a good idea. -Former immigration Judge Paul Wickham SchmidtGeorgia had the third highest increase at 67 percent (rising to 23,249 cases from 13,955), followed by Florida with a 57 percent increase (up to 50,544 pending cases from 32,233). California had a 48 percent increase and the highest overall backlog of any state with 140,676 unresolved cases, up from 95,252.
Attorney General Jeff Sessions has sought to address the problem through a number of steps, however many experts say changes under the Trump administration are exacerbating the backlog.
‘No sane person would look at this and think that throwing more cases into this system would be a good idea,’ Wickham Schmidt said.
The Executive Office for Immigration Review, which oversees the immigration court system, announced earlier this month that it has hired 23 new immigration judges in an effort to take on the backlog and to offset the retirement of judges.
That change brings the total number of immigration judges to 351, with Department of Justice officials expecting to add another 75 in the fall.
Sessions says he has also introduced a ‘streamlined’ approach for hiring judges – a historically lengthy process – to bring the average hiring time down to 266 days, compared from 742 days in 2017, according to Department of Justice data.
In addition, the DOJ has introduced a new quota that would require immigration judges to close 700 cases a year.
Quotas ‘would threaten the integrity and independence of the court and potentially increase the court’s backlog,’ according to the National Association of Immigration Judges, the union representing the judges.
Ten states were responsible for a majority of the increase in case backlogs within U.S. immigration courts since President Trump took office
Despite those efforts, experts say that a number of policy changes under the Trump administration continue to compound the backlog and more recent actions could worsen the situation in years to come.
‘The problem is basic policy decisions in managing the workload,’ said Susan B. Long, co-director of TRAC, which published the analysis. ‘Historically backlogs have been rising for a very long time, so this is not a new problem, but they have accelerated since President Trump assumed office.’
Throwing a couple hundred thousand cases back into an already overloaded system is obviously going to have an impact. -Former immigration Judge Jeffrey S. ChaseUnder the current administration, the DOJ has ended an Obama-era practice that gave the government prosecutorial discretion in immigration cases, which allowed Immigration and Customs Enforcement attorneys to prioritize certain cases and deprioritize others by taking them off the docket indefinitely.
For example, officials could deprioritize cases in which an immigrant has been living in the country for many years without committing any crimes, who is also paying taxes and has close relatives who are U.S. citizens.
The goal was to allow the DOJ to focus more time and energy prosecuting immigrants who were convicted of other crimes, engaged in gang activity, or who had just crossed the border.
Long told DailyMail.com that ‘tens of thousands’ of cases could be reintroduced to the docket now that prosecutorial discretion has been eliminated.
Sessions also issued a decision earlier this year that takes away the authority of immigration judges to administratively close cases. Similar to prosecutorial discretion, administrative closures allowed a judge to close low-priority cases to make room on the docket for more serious offenses.
The backlog of immigration cases has risen steadily over the past decade
From Oct. 1, 2011 through Sept. 30, 2017, 215,285 cases were administratively closed, according to Sessions’ decision.
Now those cases are being added back to the docket, former Immigration Judge Jeffrey S. Chase told DailyMail.com.
‘Throwing a couple hundred thousand cases back into an already overloaded system is obviously going to have an impact,’ he said.
In addition, the Trump administration is planning to terminate Temporary Protected Status for people from El Salvador in September 2019 and Haiti in July 2019. TPS is a designation for people from certain countries for whom it would be unsafe or not feasible for them to return home. Chase said putting an end to the program will add to the backlog in the future.
Long said that the increase in immigration crackdowns at workplaces and at the Southern U.S. border are primarily being handled by criminal courts, so those aren’t having a huge impact on the backlog.
In many cases simple case ‘churn’ – when cases are postponed because a judge isn’t available or unable to get to all scheduled cases in a day – is the cause of backlog, Long said.
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Susan Long and Jeffrey have hit the nail on the head. Sessions has replaced a nascent but very promising prosecutorial discretion (“PD”) system instituted by DHS toward the end of the Obama Administration with more “Aimless Docket Reshuffling.” “Churning,” as used by Susan is another term for “Aimless Docket Reshuffling,” or “ADR” for short.
The “spiggot” of Immigration Court cases is under the sole control of ICE. No court reform is likely to succeed unless it includes an element of responsible and prioritized use of court time — the process followed by every other law enforcement agency in America that I’m aware of except ICE. Sessions — and let’s be honest, he’s running both immigration enforcement through DHS and the courts at DOJ despite the glaring conflict of interest — is moving in exactly the opposite direction with his bone-headed “zero tolerance” and “deport ’em all” pronouncements.
By 1) eliminating policies favoring the prudent use of court time; 2) removing the authority of Immigration Judges to close cases that could be better handled by USCIS off the courts’ active dockets; 3) disrupting settled asylum law and discouraging ICE from stipulating or otherwise settling cases, making most cases “full three-hour merits hearings;” and 4) overemphasizing detention, thereby shifting judicial resources from non-detained courts where all of the backlog exists to detained courts, Sessions has virtually guaranteed a continued growth in backlog.
The most telling fact: even with dozens more Immigration Judges on the bench than during any time in the Obama Administration, and all sorts of sophomoric “just pedal faster, shame and blame” invectives directed at the Immigration Judges themselves, as well as embattled private attorneys, the Trump Administration has never been able to complete more Immigration Court cases than it has docketed. That’s the definition of an out of control backlog.
Another sobering stat: Assuming that the 350 Immigration Judges now on duty worked on nothing but backlog — no new cases — and that each of them achieved their “quota” of 700 cases annually, it would take until nearly 2022 just to complete all of the cases in the current backlog!
No, the answer isn’t to blame the victims: the migrants exercising the legal rights to which they are entitled, the attorneys (many serving pro bono) trying to help them, and the beleaguered judges themselves and their overwhelmed court staff.
The answer is in the exercise of some prosecutorial discretion by the DHS to get “low priority” individuals and cases off the docket. At some point, that must be combined with a legislative program that allows those undocumented individuals with clean records, equities, and who are effectively part of and important contributors to our society to remain in some type of legal status. In my view, that should involve a path to a green card. But, even a more limited, renewable “TPS-type” status that allowed individuals to reside, work, study, and pay taxes in the US would be a big step in the right direction.
Not going to happen under Trump & Sessions? Yeah, that’s likely true. All the more reason to replace them with non-White Nationalists capable of recognizing the many important contributions of all kinds of migrants and governing wisely in the overall public interest.
PWS
09-03-18
Judge Emmet Sullivan of the U.S. District Court for D.C. May 27, 2009. Photo by Diego M. Radzinschi/NATIONAL LAW JOURNAL. 
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