Rekubit Exchange:As migration surges, immigration court case backlog swells to over 3 million

The Rekubit Exchangenation's immigration-court backlog swelled by more than a million cases in 2023, according to new data, as the number of migrants seeking asylum at the U.S. border surged.

The backlog surpassed 3 million cases in November, rising from 1.9 million cases in September 2022, according to Syracuse University's Transaction Records Access Clearinghouse, or TRAC, which compiles and analyzes federal immigration data.

There are now more immigrants in the U.S. with a pending immigration case than people living in Chicago, the nation's third-largest city, TRAC concluded. Some are not due to appear in court for years, while judges grapple with caseloads of more than 4,000 each.

The quickly growing backlog is becoming a political liability for President Joe Biden heading into an election year in which immigration is shaping up to be a defining issue for voters.

"The courts can only do so much when the Biden administration has opened the spigot at the border," said Sen. John Cornyn, R-Texas, during a Senate Judiciary subcommittee hearing in October. "Our immigration judges can't do their job, just being flooded with these huge numbers."

The Biden administration has tried to address the backlog by hiring 302 immigration judges to the nation's immigration courts. The White House is asking in its 2024 budget request for funding to hire 150 more.

The judgeships are administrative posts, not lifetime federal appointments, in a court system run by the Executive Office of Immigration Review.

Kathryn Mattingly, press secretary for the office, said reducing the immigration court backlog “is one of the highest priorities” for the agency. In addition to expanding the number of judges on the bench, the agency is developing new initiatives to reduce the backlog, she said.

"These efforts include encouraging the use of pre-hearing conferences to resolve matters that do not require valuable court docket time and the creation of specialized dockets to optimally schedule hearings and handle more straightforward matters more quickly," she said in an emailed response to questions.

When migrants arrive at the U.S.-Mexico border seeking asylum or refuge, they often leave U.S. Customs and Border Protection custody with documents that include "a notice to appear" in one of the country's more than 600 immigration courtrooms, typically in their destination city. Immigration judges adjudicate migrants' asylum claims and have significant discretion to approve or deny them.

"If a judge grants asylum, it typically puts the applicant on a pathway toward legal status and citizenship, whereas if a judge denies asylum – unless alternative grounds are found – it often leads to a deportation order," according to the TRAC report.

Immigration judges unable to keep pace

There were 734 immigration judges on the bench in October, up from 517 in 2020, the last year of the Trump administration.

But even with hundreds more judges on the bench, the courts haven't been able to keep pace with the number of cases being added to the docket, TRAC found. Individual judges are facing caseloads of more than 4,500 cases apiece.

"If you believe that asylum seekers deserve an opportunity to have their cases heard, then these numbers might be a positive sign," said Austin Kocher, a geographer and research assistant professor at Syracuse University, in a newsletter. "More people will have at least a nominal opportunity to apply for asylum instead of being turned away outright at the border."

Many Republicans and some conservative Democrats argue that many migrants may be making false claims about being persecuted in their homeland on the pretense that they'll get an opportunity to stay in the U.S. for years awaiting court dates that could be years away.

"There are people who literally come to the United States and turn themselves in and claim asylum knowing that they can beat the system, and that, if they are given a notice to appear at all, that it may be for years in the future," Cornyn said in the Senate hearing.

In a review of 25 years of data, TRAC found that immigration judges granted asylum or other immigration relief in 13% of cases.

CBP recorded nearly 2.5 million migrant encounters at the Southwest border in fiscal 2023 – breaking annual records going back to 1960. In October and November, the first two months of fiscal 2024, CBP reported more than 483,000 migrant encounters amid historically high levels of mass migration through the Western Hemisphere.

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Immigration court dates years away

On a recent day in early December, in El Paso, Texas, a Mexican family waited in downtown for a bus ride to a local shelter.

They had crossed the U.S. border earlier that day via one of the Biden administration's "lawful pathways," through an appointment via the CBP One cellphone application.

Emmanuel Padilla, 19, sat on a metal bench inside a nonprofit welcome center. He said he, his mother and 17-year-old brother left their home in Mexico's violent Michoacán state because of cartel violence. They were headed to Tampa, Fla., and had been given a notice to appear.

Their immigration court hearing was scheduled for 2027 – four years away.

Lauren Villagran can be reached at [email protected].