Immigration

A Key Trump-Era Policy’s End Will Be The ‘Demise’ Of The US’ Immigration Courts, Experts Say

No featured image available

• Title 42, the Trump-era public health order, ending May 11 will break the U.S. immigration court system, according to a senior Immigration and Customs Enforcement (ICE) official, who spoke with the Daily Caller News Foundation, a former U.S. immigration judge and recent data showing the extent of the immigration court backlog. 
• The number of cases the Executive Office of Immigration Review (EOIR) oversees continues to rise, more than tripling to 1,791,304 pending cases in 2022, with 313,849 completed.
• “Title 42 ending will be the demise of the immigration court system,” a senior ICE official close to the matter and not authorized to speak publicly, told the DCNF. 

The looming end of Title 42, a Trump-era public health order used to expel certain illegal migrants, will lead to the implosion of the U.S. immigration court system as more migrants pour over the southern border amid a massive court backlog, according to experts who spoke with the Daily Caller News Foundation and recent data showing the extent of the immigration court backlog.

Title 42, which is set to end May 11, is a public health order that was most recently invoked by the Trump administration during the COVID-19 pandemic that’s resulted in more than 2.7 million expulsions at the southern border. The years-long backlog and staffing shortages of immigration judges, combined with a surge of migrants expected to pour over the southern border when the Trump-era order ends will collapse the system, according to the experts who spoke with the DCNF.

“Title 42 ending will be the demise of the immigration court system,” an anonymous senior ICE official close to the matter and not authorized to speak publicly told the DCNF.

ICE officers will be expected to operate around the clock, including weekends, to handle the expected surge the ending of Title 42 will bring, according to the senior ICE official.

ICE ERO’s [Enforcement and Removal Operations] job is to process undocumented noncitizens through the immigration court system, according to the agency. The Department of Justice operates the immigration court system under its Executive Office for Immigration Review (EOIR) and is under the supervision of the attorney general.

There are approximately 650 immigration judges to handle current cases, future cases and the backlog of 1.8 million pending cases nationwide and EOIR has authorized 734 immigration judge positions, EOIR told the DCNF. Additionally, there are only 588 courtrooms for EOIR to adjudicate its cases, according to the EOIR.

An individual case before an immigration judge can be scheduled ‘”for the entire day or several days, depending on the expected complexity of the case,” according to EOIR.

Meanwhile, the number of cases in EOIR’s hands continue to rise.

In 2016, there were 521,658 pending immigration cases, with only 143,493 cases completed that year, according to the Department of Justice (DOJ). In 2022, these numbers more than tripled to 1,791,304 pending cases, with 313,849 completed.

As of the last report, in 2023, there are over 1,874,336 pending cases, with 100,790 completed, according to EOIR.

The overwhelming situation will have repercussions for years to come as court dates are now stretching as far as 2032 in some cases, the ICE official said.

“Currently, cases being apprehended at the border and released are allowed to schedule themselves with the Field Office Appointment Scheduler (FOAS). This system allows aliens to schedule themselves for an initial appearance at local ERO offices to be written up and placed into removal proceedings,” the senior ICE official told the DCNF.

“In New York itself the system is so bogged down aliens are getting appointments in 2032, meaning an alien encountered today will be admitted into the country approximately nine years before ever being properly charged and assigned a court date,” the official added.

Migrants at the New York City ERO office are rejected daily due to the high demand for appointments, the DCNF observed in April, when all 500 daily appointments were completed by 8 a.m.. The people that showed up in the afternoon were told to return the next day at 4 a.m. and that missing their reporting date would not count against their cases.

Jennie Taer//Daily Caller News Foundation

A family from Nicaragua with a 6-year-old boy planned to sleep in the park nearby because they took an hours-long train to get to the city. That day, ICE fulfilled its 500 daily appointments by 8 a.m.

1 Pending New Receipts and Total Completions by Daily Caller News Foundation on Scribd

EOIR faces a number of issues, including being short-staffed. In 2017, the Government Accountability Office (GAO) made staffing recommendations to the court that went unheeded.

On April 23, the GAO reported to Congress that “despite our 2017 recommendation to develop a strategic workforce plan to address current and future staffing needs, EOIR hasn’t done so — even though it had a significant and growing backlog of 1.8 million pending cases at the start of FY 2023, more than triple the number that it had in FY 2017.”

Matt O’Brien, who previously served as a U.S. immigration judge in Arlington, Virginia, told the DCNF that the surge of migrants expected after Title 42 ends will wreak havoc on the courts.

“I think it’s gonna cripple the immigration court system, it’s gonna bring it to his knees. I think it’s going to do the same thing to U.S. Citizenship and Immigration Services. I think it’s going to increase the backlog,” O’Brien, who is now the director of Investigations at the Immigration Reform Law Institute (IRLI), a nonprofit legal organization, said.

Limited staffing is not the end of the courts’ issues. In 2016, the courts moved from paper to electronic case management, allowing the transmittal of documents through an e-filing system, according to the GAO report.

However, the GAO reported that an assistant chief immigration judge said hearings for electronic cases take “roughly three times as long as they did when cases were on paper,” because of the slow response times of the electronic system.

Moving from paper to an electronic system is not without flaws; the National Association of Immigration Judges said outages of the electronic system caused some hearings to be “slow or impossible” to conduct, according to the GAO report.

Despite the government mandate, the EOIR still has approximately 850,000 cases on paper as of January 2023, according to the GAO report.

“Most of this backlog is manufactured. If the number of bogus asylum cases that are currently clogging up the immigration courts were weeded out, where if the immigration judges were given the authority to dismiss them … the way that other courts are able to dismiss cases that don’t have merit, there wouldn’t be any backlog,” O’Brien said.