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One Million Backlogged Immigration Court Cases And Growing

– Posted in: Immigration Court

One hour, 10.5 minutes.

That’s how much time, on the average, an immigration judge had to dedicate to an immigrant’s case at the Los Angeles immigration court per year.

If you’re one of the thousands of Angelinos, who has been summoned to 606 South Olive,  in overcrowded Los Angeles, to an overcrowded court, consider yourself lucky.

Immigration judges nationwide get less time to review similar matters.

The Backlog, The Backlog, THE BACKLOG!

Now I know how Paul McCartney must have felt.

You’d think people would have had enough of silly love songs, so why write another?

In the past, I wrote so much about the immigration crowd backlog that I thought I would never touch the subject again.

And for several years, I stayed away from the topic.

Of course, things didn’t improve during that period.

The situation at immigration court and the reality of deportation defense just continued to grow worse and worse.

Until, well . . .

Recent statistics released by Syracuse University’s Transactional Action Clearinghouse (TRAC) compels me to comment again.

In the TRAC study published in November 2018, when this article was originally published, the estimate was that the court backlog was 768,257 cases and would reach 809,000 by the end of the year.

A subsequent TRAC article said since 330,211 cases that had been previously designed as “completed” were placed back onto the “pending” rolls, a more accurate total for November 2018 reached 1,098,468 backlogged cases.

June 2022 Update

As of June 2022, the number of immigration court cases has grown to 1,755,000.

That’s right. You read the figure correctly.

Nearly two million cases on the immigration court agenda.

Here is what you need to know about the current impact of the court backlog on removal hearings and trials today.

Reliving The Obama Legacy

What are these supposedly completed, but now pending, cases?

They’re cases which did not fit into the law enforcement high priorities under the Obama administration. Instead, they were administratively closed, to the exaggerated applause of many immigrant rights advocates.

The grants of prosecutorial discretion did not mean immigrants won their cases. Rather, it meant these individuals, most of whom had strong family ties, a non-history of criminal convictions, and the possibility of adjustment  of status to permanent residence at some point in the future were granted temporary reprieve from their deportation proceedings.

As long as they remained law-abiding, they could remain in the country without undue fear of deportation and removal from the United States.  Advocates hoped these folks would seize the moment and become lawful permanent residents at the first possible moment. Some did, some did not, and several are still waiting for the right moment to arise.

Unfortunately, for those who did not take advantage of the opportunity given them by the Obama administration, Donald Trump entered the house a few years later.

The type of policy reversal mandated by the Trump Administration was my fear from the outset, an appraisal which limited my ovation during the Obama years.

A temporary reprieve is not tantamount to a legalization path.  It might one day become the first step to a green card, but only after the rules to reach the end zone have been defined.

They were never laid out by the Obama administration.  So, under the Trump presidency, immigrants and immigrant advocates quickly sat at the cusp of a larger-than-ever national immigration disaster.

Over one million cases on the immigration court agenda.


Futile Warnings About Court Overcrowding

The current backlog at immigration court is so staggering that all of my earlier writings on overcrowding, like those of other legal commentators, need to be relegated to the dustbins of history.

My numerical estimations were way off base. I did not foresee a backlog exceeding six figures. (Of course, I did not foresee either a Trump-Sessions or a Trump-Barr immigration agenda.)

Nor did I perceive the massive influx of Central American refugees coming to the U.S.

In actuality, my previous posts on the causes for the immigration court backlog were not inaccurate. They were simply ignored far more than I ever imagined.

A few snippets:

Immigration Courts: The Neglected Children Of Immigration Reform (July 2013)

Merely granting immigration courts greater independence and providing them modernized resources will not ensure justice for immigrants.

Rather, improvements made to the immigration court structure must be accompanied by changes to existing immigration laws, rules, and regulations – as well by adjustments to current detention and deportation policies.

In short, fixing the structure of immigration courts – without fixing the substance of immigration law – will not repair our system of immigration justice.

Immigration Court Overcrowding Circus: Prosecutorial Discretion Panels And Low-Priority Case Review (May 2012)

The overload is one primary reason why low priority cases need to be removed from active immigration court dockets.

Justice cannot prevail in a system plagued with over 100 new cases per month, per judge.

The evidence required to defend yourself against deportation at immigration court is set at an extremely high standard.

Proper case presentation, despite courtroom overcrowding, should not be shortchanged due to time constraints.

The Immigration Court: In Search Of Efficiency, Justice And Due Process (June 2011)

Since the 1986 amnesty, inconsistent enforcement, coupled with an inefficient and restrictive pathway for legal access to the country, have left us with a broken immigration system. The immigration courts are a key part of this system.

Yet, the immigration court system continues to take in more cases than it decides each year, causing an increasing backlog of unresolved cases.

In the current political climate, spending money on improving the immigration court system is not a priority.

Absent such funding, in a system where the caseload of immigration courts is directly tied to DHS enforcement activities, immigration courts cannot keep pace.

Without Congressional support, immigration courts are doomed to inefficiency.

Reforming The Immigration Court System: Problems And Solutions (April 2011)

Many of the problems with the immigration court system are due to case overload.

Although some short-term fixes have been proposed, the politics of immigration reform have prevented enactment of potential solutions.

The net effect of overload is undue stress on immigration judges and our immigration legal system.

Judges are constantly short on time. They have limited time for legal research. They have limited time for immigration hearings and trials.

Much of the inappropriate judicial temperament and professionalism exhibited at times by immigration judges can also be traced to the same issue.

2010 Department of Justice Report On Deportation Released (March 2011)

Former president George W. Bush recognized the solution. If reducing the flow of undocumented immigrants is the goal, the solution is to work closely with our neighbors in the south. It’s too bad he never acted on his insight.

We are, in short, an economic magnet to poor immigrants living in Latin American countries. By helping Mexico, Guatemala, El Salvador, Honduras, and other nations improve their economies, we would likely reduce the migration of their citizens to the United States.

As a San Diego immigration lawyer, I cringe when I see immigrants without attorneys at immigration court hearings.

Even if you have a “good case,” the difficulty of winning at immigration court should not underestimated.

The standard for earning relief against deportation is set abnormally high. When the overload facing judges is added to the mix, the need to revamp the immigration court system becomes critical for immigrants and their families.

ICE Modifies Immigration Removal Policy For Green Card Applicants (August 2010)

Prosecutorial discretion is not a blind dismissal. If an immigrant fails to obtain a green card at their permanent resident interview, they will be sent back to immigration court where their deportation and removal defense hearings will start over again.

The policy does not create a new path to legalization.

“This is not a backdoor amnesty,” said Beth Gibson, assistant deputy director of ICE. “It is really about efficient use of docket space and smart use of everybody’s scarce resources.”

I agree with Ms. Gibson.

It’s time for immigration opponents to be honest with the American public. They oppose  any ideas to improve our immigration system except arresting, locking up, and deporting immigrants back to their home countries. Their approach will not fix our immigration system.

Another article on immigration overcrowding is not really needed.

The causes and consequences remain the same.

The fix remains the same.  However, it’s more urgent than ever.

The Impact Of An Overworked
Immigration Court System

I have several misgivings about immigration judges.

Not all judges. Not all of the time.

Despite professional qualms about certain judicial tendencies, I know some behaviors are part and parcel of a broken court system.

And it causes me to have suspicions whether the failure to address the problems of the  immigration court system, especially the calendaring burdens placed on judges, is due to a hidden mandate of xenophobia.

A Day At Immigration Court

It was closing argument.

The case involved an undocumented immigrant’s request for cancellation of removal. His hardship claim rested on his relationship to his lawful permanent resident wife and three U.S. children.

Government counsel had minimized the myriad connections between a father and his children, between a husband and his wife by addressing my client’s hardship from a narrow elitist perspective.

I began.

“The concept of hardship is not a silver spoon theory.”

Almost as if waiting in ambush, the judge pounced.

“Mr. Batara, I’m admonishing you to refrain from insinuating that I or any government employee was born in a privileged background.”

“Such commentary is rude, insulting, and out of order.”

Before I could respond, the immigration judge descended into a long-winded rampage about immigrants seeking undeserved benefits.

My client put his head down as he sunk lower into his chair.

At such moments, what’s an immigrant to think?

Watching the judge’s fury unravel, I felt a tinge of sorrow for him.

I felt worse, much much worse for my client.

Although surreal, as an immigration trial veteran, the experience was not novel.

The judge had lost sense of time and place, decorum and decency.

The longer he ranted, the stronger my client’s appeal.

Unfortunately, such outbursts at immigration court hearings are not uncommon.

In a post written for the Huffington Post, Law Professor Bennett Gershman described how federal appellate courts have often viewed such actions in an unfavorable light.

Federal courts, he points out, have frequently condemned the conduct of immigration judges as hostile, intimidating, insulting, intemperate, sarcastic, mocking, and contemptuous.

In addition, Gershman notes, their decisions have been criticized as irrational, arbitrary, incoherent, incomprehensible, and indecipherable.

Not exactly the type of words you’d expect to be used to describe judicial conduct.

Fixing the court backlog would likely reduce such incidents of incivility.

How The Trump Administration Has Worsened The Backlog Problem

As noted above, I was not a fan of the dead-end approach of administrative closure and prosecutorial discretion measures enacted during the Obama administration days.

In fact, my fears related to such policies were not exaggerated, as the the number of backlogged cases at immigration court increased under the Trump administration.

And it could grow worse.

  • And there’s the possible impact emanating from the new Notice To Appear policy which was implemented by USCIS on October 1, 2018.  Under this rule, any immigrant whose application is denied for benefits, and who appears to lack any legal status to remain in the U.S., despite the lack of criminal convictions, may be immediately served with a date to show up at immigration court.

Although the breath of this new regulation is not yet known, conservative estimates show this measure could swell the immigration court ranks by yet another 300,000 per year.

A Brief Look At The 2018 TRAC Report

Before closing, let’s take a quick look at the current mess at immigration court.

A few selected categories from the TRAC reports tell the story.

Deportation And Removal Immigration Court Cases By State

Over the past decade, the four states with the heaviest caseload have not varied much.

The top ten state totals in 2018:

  • California – 146,826
  • Texas – 119,401
  • New York – 108,458
  • Florida – 60,793
  • Virginia – 44,154
  • New Jersey – 44,096
  • Maryland – 35,300
  • Illinois – 29,922
  • Massachusetts – 28,490
  • Georgia – 26,447

The top ten state totals in 2020:

  • Texas – 200,518
  • California – 193,667
  • New York – 139,763
  • Florida – 124,422
  • New Jersey – 67,702
  • Virginia – 60,968
  • Massachusetts – 54,768
  • Illinois – 47,462
  • Georgia – 44,534
  • North Carolina – 44,200

As the above figures show, the only change was that North Carolina, which now has the 10th largest amount of deportation and removal cases, replaced Maryland on the top ten list.

Frankly, I’m surprised that two states within my general ambit of operation, Arizona (11,605) and Washington (11,803), are not among the top 10 states.

A new U.S. Census Bureau study showing how many people in each state was born in each state was born outside the United States was shared in a recent Business Insider report.

Although all of the above states were reflected in the Census study, two states which have a high percentage of individuals born outside the country, Nevada (19.9%) and Hawaii (18.6%) have a relatively low number of immigrants with immigration court cases. In part, this is likely due to their much lower population totals.

Deportation And Removal Immigrant Defendants By Country Of Birth

To no surprise, immigrants from just four nations – Mexico, Guatemala, El Salvador, and Honduras – represented 73.7% of all cases at immigration court in 2018. That figure dropped slightly to 72.2% in 2020.

Overall, the top ten countries in 2018 were:

  • 1. Mexico – 161,614
  • 2. Guatemala – 158,935
  • 3. El Salvador – 153,689
  • 4. Honduras – 121,874
  • 5. India – 26,511
  • 6. China – 26,090
  • 7. Ecuador – 17,458
  • 8. Brazil – 11,191
  • 9. Haiti – 9,726
  • 10. Venezuela = 8, 170

The top ten countries in 2020:

  • Guatemala – 279,106
  • Honduras – 238,215
  • Mexico – 207,720
  • El Salvador – 186,105
  • India – 32,434
  • Cuba – 31,896
  • Venezuela – 31,002
  • Brazil – 30,363
  • China – 29,458
  • Ecuador – 27,870

The only newcomer to this list in 2020 was Cuba, which replaced Haiti.

As I’ve noted before, a sensible immigration reform package centered on just the top four countries would likely reduce not only the flow of immigrants entering the United States without advance permission, but also the immigration court backlog.

Deportation And Removal Cases By Court Location

These figures correspond with the states having the largest number of cases.

  • New York, New York – 105,100
  • Los Angeles, California – 76,279
  • San Francisco, California – 60,677
  • Houston, Texas – 53,575
  • Arlington, Virginia – 44,153
  • Newark, New Jersey – 43,341
  • Miami, Florida – 42,785
  • Baltimore, Maryland – 35,300
  • Chicago, Illinois – 29,922
  • Boston, Massachusetts – 28, 490
  • San Antonio, Texas – 27,036
  • Dallas, Texas – 25,750

Here are the specific immigration courts with the most removal cases in 2020:

  • New York, New York – 105,669
  • Miami, Florida – 69,976
  • Los Angeles, California – 69,158
  • San Francisco, California – 68,413
  • Newwark, New Jersey – 67,464
  • Dallas, Texas – 57,177
  • Arlington, Virginia – 54,144
  • Houston, Texas – 53, 728
  • Boston, Massachusetts – 49,833
  • Orlando, Florida – 49,277

In some locations, like Los Angeles and Houston, the numbers above reflect only the cases for the largest court in that geographic vicinity. The building of new court locations have taken place to reduce the overload at the main local immigration courts.

Now it’s time to some quick math.

In 2018, a Los Angeles Times news article pointed out that the local immigration court, which handles the second largest case load, has 40 immigration judges.

At that time, the average case load per judge was 1,907 cases (76,279 cases divided by 40 judges.)

Each judge works 2,000 hours per year (50 weeks times 40 hours per week). That’s roughly 1 hour, 10.5 minutes per case per year.

Actually, Los Angeles is doing better than the national average.

There are 410 judges nationwide. This meant, out of the 1,098,468 cases, each judge on the average had to handle 2,679 cases.

Need I say more?

By Carlos Batara, Immigration Law, Policy, And Politics