Courts drowning in backlog pose lingering immigration challenge

An immigration court system that swelled with fresh cases under former President Trump is threatening to stall a Biden administration determined to reform U.S. immigration.

The number of migrants awaiting court hearings more than doubled under the Trump administration as it sought to accelerate deportations while moving quickly to install its own judicial picks across the system.

It’s a difficult scenario for a president who campaigned on making it easier to apply for asylum and providing a pathway to citizenship for some 11 million undocumented people already living in the U.S.

“We’re looking at four years for people to get to their next hearing. A significant portion of those people are entitled to legal status and are in legal limbo with family hanging in the balance because of this lack of an effective system,” said Peter Markowitz, an immigration law professor at the Cardozo School of Law at Yeshiva University.

“There’s no way to do justice with a caseload like that,” he added.

The immigration court system, run by the Department of Justice (DOJ), has 1.3 million cases already on the docket, including people facing deportation, those hoping to gain asylum after fleeing persecution abroad and those who, even if they overstayed a visa, may be entitled to a green card.

The White House has been eyeing administrative fixes, including a memo to Immigration and Customs Enforcement (ICE) prosecutors released Friday giving them greater discretion to drop cases and outlining a number of criteria to help steer the agency’s lawyers away from the deportation cases that surged under Trump.

The memo also teases future moves to unburden the system “at a later date and in a comprehensive fashion.”

“The size of the court backlog and the extraordinary delays in completing cases impede the interests of justice for both the government and respondents alike and undermine confidence in this important pillar of the administration of the nation’s immigration laws,” the Biden administration wrote in the memo. 

The efforts come as cases are working their way through a system showing the lasting impact of Trump, whose administration filled roughly two-thirds of the 520 lifetime seats on the bench.

Trump’s picks, often tapped from the ranks of ICE prosecutors, were more likely to reject asylum applications, with denial rates jumping close to 70 percent after hovering around 50 percent under prior administrations.

“Last year we had all this talk about Supreme Court packing and Amy Coney Barrett, but in immigration court, Trump had already done it, and no one said a word about it,” said Greg Chen with the American Immigration Lawyers Association.

And those new judges faced a surge of cases.

“Every case was a high-priority case” under Trump, said Dana Leigh Marks, vice president for the National Association of Immigration Judges, with the last administration “exercising no prosecutorial discretion.”

The union is currently challenging another Trump-era move: the workloads imposed on immigration court judges, forcing them to resolve 700 cases a year, up from what Marks said is typically 400 to 500.

“They didn’t want to create the backlog. They thought if they rushed all these things through with no time for continuances that they’ll have removal orders to show. The problem is that’s very short-sighted because people have the right to appeal their case,” she said.

Advocates are hopeful Biden will dismantle a series of Trump-era actions that succeeded in piling on cases while making his own mark on the system.

The newfound discretion given to ICE lawyers on Friday could be key in removing cases, encouraging prosecutors to consider dropping cases against longtime residents, those with “compelling humanitarian factors” and those with strong ties to their community. 

But other Biden moves have baffled some observers.

The administration has yet to scrap Title 42, a Trump-era holdover that has allowed border agents to quickly expel migrants without letting them apply for asylum, as it grapples with a swelling number of migrants at the southwest border.

And DOJ’s first new hires for the court under Biden were 17 immigration judges initially selected by the Trump administration, carrying forward a cohort largely filled with immigration prosecutors. None on the list had made their career representing migrants in court.

But the White House seems to recognize the backlog represents a challenge, particularly as Congress shows little appetite for taking up any major immigration reform.

DOJ and the Department of Homeland Security kicked off a “dedicated docket” for families that are excepted from Title 42 and seeking asylum, suggesting that judges work to resolve the cases in 300 days.

Some immigration advocates, however, worry the plan would move the families’ cases too quickly to ensure they could retain pro bono legal help while fast-tracking their hearings at the expense of others already languishing in the backlog.

“Legal processing doesn’t happen in a vacuum,” César Cuauhtémoc García Hernández, a law professor at Ohio State University, said at the time.

Biden’s budget also calls for hiring 100 new immigration court judges. It’s a move that could mitigate the effects of Trump’s hirings, but it may not be a sufficient addition of manpower to the overburdened system.

“One hundred judges is just a drop in the bucket compared to this backlog,” said Markowitz, who wants Biden to do more to combat what he sees as a Trump administration that indiscriminately referred cases to the court.

In some ways, Biden has. The interim enforcement priorities handed down to ICE officers instructs them to focus on deporting only those with serious criminal records, requiring officers to seek permission from a higher-up before going after anyone else. The move should stem the flow of people facing removal proceedings in court.

But some argue the White House needs to enable judges to essentially nix from their calendar those who might be able to gain some kind of status through U.S. Citizenship and Immigration Services (USCIS) — another federal agency with a daunting backlog.

“The idea that we’re entirely ignoring this affirmative pathway in favor of tying up our court system and tying up people’s lives and the time of immigration judges and prosecutors on cases that could be affirmed through simple paper application makes no sense whatsoever,” Markowitz said.

Regulation gives the director of the Executive Office for Immigration Review (EOIR), which manages the court system, the power to defer cases and otherwise manage the docket, including essentially pausing cases.

Chen estimates that some 460,000 people on the docket have applications for status pending with USCIS but are still being asked to make immigration court appearances roughly every three to six months.

“By looking categorically at those cases that could eliminate a lot of time and effort of judges and court staff from having to review cases individually to determine if they’re priorities,” he said.

Another 200,000 cases could be removed if the EOIR director deferred cases that are more than five years old, something Chen said shows they are low priority enough to have been consistently kicked down the calendar “and should be shifted off the docket to make sure priority matters are not delayed.”

Friday’s memo suggests that Biden could be open to such a move. It suggested bumping the cases of “individuals likely to be granted temporary or permanent relief.”

Judges also want more power to manage their own docket — something that was limited under Trump.

“The Trump administration continues to impact judges’ discretion by limiting some of the judicial tools available to us, like the ability to administratively close a case, put it on the suspense docket,” Marks said, adding that it was something the Trump team thought “would result in removal versus granting relief because people weren’t allowed to complete the process to gain other kinds of relief in the meantime.”

But the sheer number of pending cases is part of why Markowitz believes the Biden administration needs to take sweeping action to “off-ramp the low-priority people.”

“There is no way these 1.3 million people are ever going to get through the removal process. It’s like the national debt. We just keep piling on new cases and kicking more and more old cases down the road,” he said.

“We will never get to those cases — it is a myth,” he added.