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October 17, 2017

New Report on Immigration Court Backlog Reveals Administration’s Efforts to Undermine Asylum System

New York City—As the Trump Administration continues its attack on the U.S. refugee protection system, Human Rights First today released a new report that analyzes the growing immigration court backlog and its impacts on those seeking asylum. The report details actions taken by the administration to exacerbate backlogs in some of the busiest immigration courts and threaten access to asylum and due process.

The report comes one week after the White House released its “Immigration Policy Priorities,” a series of extreme demands from the administration as they seek to exact a price to allow Deferred Action for Childhood Arrivals (DACA) recipients to remain in this country. Days later, Attorney General Jeff Sessions traveled to immigration court headquarters and gave a speech inaccurately painting asylum cases pending before the courts as fraudulent and lacking in merit. He noticeably failed to mention the refugee and displacement crises driving people to flee in search of protection.   

“The Trump Administration’s campaign against fairness and due process in the immigration courts has resulted in longer-than-ever wait times for asylum seekers trying to rebuild their lives and bring family members to safety,” said Human Rights First’s Olga Byrne. “Instead of taking meaningful steps to address the backlog, the Trump Administration issued a series of memoranda and policy directives in an effort to score political points at the expense of the most vulnerable individuals. These flawed policies appear aimed at rushing cases through the system and undermining fair decision-making in the immigration courts.”

On January 25, 2017, President Trump issued two executive orders that are aggravating the backlog and threatening the fair treatment of asylum seekers and other immigrants. In these orders, the president called for the expansion of detention facilities to hold immigrants for the duration of their immigration court proceedings and instructed Attorney General Jeff Sessions to “immediately” assign immigration judges to detention facilities at the border. He also stated that it was executive branch policy to “expedite determinations of apprehended individual’s claims of eligibility” to remain in the country, and declared an end to strategies that prioritize some categories of immigrants for enforcement. One of the orders also threatened the expansion of summary deportation proceedings known as expedited removal, which deny people the due process safeguard of an immigration court hearing. 

The devastation of Hurricane Harvey and subsequent hurricanes revealed just how detrimental a court backlog can be on asylum seekers. Though federal and state governments made assistance available to cover temporary housing, home repairs and replacement of essential items, medical needs, unemployment benefits, cash assistance, food, and baby necessities, asylum seekers—who face an average wait time for a court hearing in Texas of 5 years—are not eligible for any of this assistance.

“The inability of asylum seekers to access basic assistance after losing everything in a major hurricane is simply appalling—and sadly it is only one example of the detrimental effects of the compounding immigration court backlog,” said Byrne.

The report’s key findings include:

  • The backlog continues to expand, reaching 632,261 cases as of August 2017, and has increased by over 82,000 since President Trump took office. The courts in California and Texas have the largest caseloads, with 118,752 and 100,566 cases, respectively, and the New York City court has the largest for a single court, nearly 83,000. 
  • Wait times in immigration courts continue to grow. In August 2015, there were 168,000 cases nationwide in courts with average waits of more than three years. In April 2017, that number climbed to 240,000 cases in the nation’s most backlogged courts, where people wait on average three to five years for their next hearing. 
  • Immigrants and their families suffer because of the backlog. As a result of the long waits, many asylum seekers and other immigrants face hardships ranging from physical danger to financial difficulties. In many cases the children of refugees are left stranded in difficult and dangerous situations while they await resolution of their parent’s asylum application.    
  • President Trump’s executive orders have exacerbated the backlog and triggered even longer waits in some of the nation’s busiest courts. In an executive order, President Trump instructed Attorney General Jeff Sessions to reassign immigration judges to border detention facilities. The ten detention facilities first selected to receive judges on detail account for around 4,500 (or less than one percent) of the over 600,000 pending court cases, while the courts from which immigration judges were pulled handle a combined non-detained caseload of 550,000 pending cases that will wait three to five years on average for their next day in court.
  • Changes to prosecutorial discretion practices by government attorneys are adding to the backlog. In the memorandum implementing the executive order “Enhancing Public Safety in the Interior of the United States,” then-DHS Secretary John Kelly declared that the agency will “no longer exempt classes or categories of removable aliens from potential enforcement.” As a result, immigration officers are referring cases into removal proceedings that they wouldn’t have previously, and refusing to stipulate to uncontested matters.
  • Trump Administration directives are undermining the fairness of the immigration courts. Plans to impose “performance metrics” or numerical quotas on immigration judges, along with policies undermining access to counsel, threaten fair decision-making in the immigration courts, as does Attorney General Session’s recent decision to travel to the immigration courts to inaccurately paint asylum cases as meritless and fraudulent. 
  • The attorney general’s change to the immigration judge hiring process raises concerns about safeguarding against politicized hiring. Career immigration officials appear to have been removed from near-final immigration judge hiring panels, according to internal EOIR correspondence. Of the 123 immigration judges hired since October 2014, 85 percent were former attorneys for immigration enforcement agencies or other branches of the federal government. 

“The president’s policies are threatening the immigration courts’ effectiveness, efficiency, and fairness. The Trump Administration is disingenuously using the very backlog they have exacerbated as an excuse to deprive people of fair hearings and block people fleeing for their lives from asylum,” noted Byrne. 

For more information or to speak with Byrne contact Corinne Duffy at DuffyC@humanrightsfirst.org or 202-370-3319.