Biden border crisis: Our immigration courts have a backlog of 2,023,441 cases and it’s more than we can handle

Border Patrol had more than 2.2 million encounters with illegal smugglers between entry points on the Southwest Border in fiscal year 2022.

A recent report by the DHS Inspector General indicates that most illegal bystanders are not placed in detention centers or deported under Title 42, but are instead processed to achieve results allowing them to be released to the States. United to await immigration hearings. This overwhelmed the immigration courts.

The immigration court backlog stood at 1,262,765 cases at the end of fiscal year 2020, which was the last full fiscal year of the previous administration. Under the current administration, it rose to 2,023,441 cases at the end of November 2022.

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Nearly 800,000 of them have filed asylum applications and are awaiting an asylum hearing. The average wait between filing a claim and hearing a claimant’s case is 1,572 days, or 4.3 years.

Additionally, many more have been allowed to enter the United States to await an asylum hearing but have not yet filed for asylum. And the number of asylum seekers is likely to increase dramatically when Title 42 is terminated.

The administration appears to want to address this issue by finding faster ways to adjudicate claims instead of admitting fewer asylum seekers to give the immigration court a chance to catch up.

For example, on May 28, 2021, the administration announced a new dedicated case that is supposed to make quick and fair decisions on the immigration cases of newly arrived families who are apprehended between ports of entry on the southern border. west. INA §1325(a) provides that such entries are crimes punishable by imprisonment for up to two years.

DHS Secretary Alejandro Mayorkas said in the announcement that “newly arrived families should not languish in a years-long backlog; today’s announcement is an important step for justice and the safety of borders”.

The immigration court backlog stood at 1,262,765 cases at the end of fiscal year 2020, which was the last full fiscal year of the previous administration. Under the current administration, it rose to 2,023,441 cases at the end of November 2022.

It refers to newly arrived families, not families already languishing in the backlog of years.

The announcement concludes that while “the objective of this process is to dispose of cases expeditiously, fairness will not be compromised.”

Dedicated folders are neither new nor fair.

The Obama and Trump administrations also had dedicated registries for newly arrived migrants to spare them the long wait for a hearing.

The Vera Institute of Justice says that, as previous efforts to use expedited cases have demonstrated, dedicated cases do not provide due process. Court records for a two-year period under the Obama administration show that it was rare for an unrepresented family in dedicated registry proceedings to file the necessary paperwork to seek asylum or other forms of exemption from eviction. Only 1 in 15 (6.5%) managed to do so without representation.

According to a recent TRAC report, more than 110,000 cases have been assigned to the current administration’s dedicated file, and nearly 40,000 of them have been settled. The vast majority (83%) of completed cases were closed within 300 days from the date of receipt of a notice to appear in removal proceedings.

But a price must be paid for this. Professor Paul Schmidt of Georgetown Law School points out that when Dedicated List judges are unavailable to hear General List cases, it places additional burdens on their judicial colleagues who hear General List cases.

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And removing judges from the general list to sit on the dedicated list also reduces the number of judges available to hear cases which would reduce the backlog.

TRAC found that only 34% of families whose cases were settled had representation, and few families without representation were able to complete the paperwork required to file an asylum claim.

Overall, only 2,894 of the 39,187 families who had hearings in fiscal year 2022 were granted asylum. The files for which asylum has been granted represent only 7.4% of the closed files.

The Vera Institute of Justice would solve this problem by ensuring the representation of each migrant in the dedicated register procedures. According to the Institute, “No immigrant should be forced to go through immigration court proceedings without a legal defense.”

Is it possible? And if it is possible, who will pay? INA §1229a(b)(4), which provides that migrants have the “privilege of representation” in removal proceedings, specifies that this must be “at no cost to the government”.

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Frankly, I think the main problem is that the administration is flooding our already overwhelmed immigration court with a tsunami of illegal passers-by claiming they are asylum seekers.

The attempt to alleviate the immigration court backlog crisis with a dedicated role has not worked for the Obama administration and it is not working for the current administration either.