With 1.6 million cases in queue, the immigration court backlog is growing faster than ever

Nearly 140,000 new cases were added to the backlog between October and December 2021, more than any other three-month period.

“It’s not as if the core backlog is growing at a steady rate, it’s actually accelerating,” said Syracuse University researcher Austin Kocher, who said the crush of cases will likely reach 2 million by the end of 2022.

At the start of the Trump administration the backlog was at around half a million cases, which at the time already seemed alarmingly high, he said.

“The immigration courts may actually be entering a new concerning era where it’s not like, we can just hire some more judges and try to keep up with the incoming cases, it’s almost like it’s getting to a tipping point where there may be no simple or easy kind of solution in sight,” Kocher said.

The long backlog has led to years-long delays for people with pending immigration cases.

Mendoza said this has led to justice being delayed for both people who should be removed from the country — and those who have a strong case to stay.

“It cuts both ways,” said Mendoza, “When you have bad actors in the community, their cases should be expeditiously processed in the court system, so that they can be removed from our community,” she said.

On the flip side, she said law-abiding individuals with a good chance of winning their case are then delayed their day in court for many years, while their future in the country is in limbo.

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In Houston, the Department of Justice’s Executive Office for Immigration Review has recently added the Gessner and Greenspoint courts along with several new judges to help deal with the backlog. But Mendoza said even though that’s a help, more can be done, such as giving judges more discretion to move low-priority cases off their dockets.

“A common case that would be ripe for an immigration judge to move off of an active docket would be the case of somebody who has a residency petition pending for them based on a family relationship to a U.S. citizen,” Mendoza said, “That petition is pending. If it’s approved, then that person is going to have the opportunity to apply for permanent residency.”

In testimony to the House Judiciary Committee on Immigration and Citizenship, immigration judge Mimi Tsankov, president of the National Association of Immigration Judges, said, “It seems like no matter how hard we work, that backlog we’re facing keeps growing.”

She attributed the inability to make it through backlogged cases to the influence of the executive branch on immigration courts. Judge Tsankov said because immigration courts are controlled by the Department of Justice, judges must answer to a political leader, the U.S. Attorney General.

“The Department of Justice’s control over the courts has yielded extreme pendulum swings,” Tsankov said, “that ping pong between one administration’s priorities and another’s, (and) reduces judicial effectiveness.”

Judge Tsankov believes creating an independent court system, similar to the U.S. Tax Court, would give judges the authority and independence to deal with the backlog on their own.

Republicans on the Immigration and Citizenship committee pushed back, noting that creating an independent court fails to address the number of asylum seekers and migrants who are arriving at the U.S.-Mexico border — which is driving up the backlog. Though hundreds of thousands of migrants have been expelled by the Biden administration, some have been allowed to seek refuge in the United States in accordance with U.S. asylum law.

“Border crossings is a big part of the recent growth,” said Kocher, but he added that historically, most of the cases now in the queue accumulated under prior presidents, especially Trump, whose immigration policies exacerbated the backlog.