3 Million Cases are Now Pending in the Immigration Courts, Is That a Bad Thing?

As of the end of November, 3,075,248 deportation cases were pending in the U.S. immigration court system according to the latest announcement from TRAC at Syracuse University.

It’s natural to find that milestone alarming. Although the “backlog” of deportation cases has been complained about since the early 1980s, it took until FY 2019 for the number to surpass 1 million for the first time in history.¹ The court backlog added another million to reach 2 million early in FY 2023, less than four years later. Finally, the court backlog added its latest million cases in only one year to reach 3 million in November 2023 (i.e., early in FY 2014).

The problem of the immigration court backlog is starting to feel like the measurement of the decay of an atom, with the half-life of adding a million cases getting shorter and shorter.

But rather than toss around panicky doomsday metaphors about the overwhelming consequences of the backlog, I want to offer four hopefully less common and more experimental ways of thinking about the immigration court backlog. Consider these food for thought rather than definitive arguments and solutions to what is, I know all too well, an enormously complex and challenging problem.

First, it is worth questioning our basic assumptions about whether the “backlog”, as it is somewhat sensationally referred to, is actually a bad thing. Unlike the Obama administration, when the rapid growth of court cases was more attributable to people who lived in the U.S. for a long time getting caught up in interior enforcement, the recent growth is almost entirely due to the arrival of asylum seekers into the country. If you believe that asylum seekers deserve an opportunity to have their cases heard, then these numbers might be a positive sign. More people will have at least a nominal opportunity to apply for asylum instead of being turned away outright at the border.

Second, it remains absurd to me that the current practice in the U.S. is to force recently arrived asylum seekers into court in front of an immigration judge rather than to direct their cases toward asylum officers at USCIS who are trained for precisely this purpose. Immigration courts were designed to adjudicate cases of non-citizens who are suspected of violating U.S. immigration laws. The courts are adversarial environments that, as far as I can tell, require far more taxpayer resources and migrant resources than non-adversarial asylum interviews do. The fact that there are 3 million cases in court is, to me, an indictment of a system that treats humanitarian crises through the lens of quasi-criminalization.

Third, since no real change is likely forthcoming, I think we should rethink our sensationalization of the backlog number and simply accept the growing immigration court backlog much like we accept the U.S. national debt ticker in New York City.² It’s just going to keep going up unless something absolutely fundamental changes about the world we live in. Get over it. This is how things work now. We need to end the delusional thinking that reforms—even much-needed reforms, such as the creation of an independent court system—are going to “solve” the backlog. The U.S. immigration system either needs radically rethought or we need to simply accept that the number of pending cases will reach 4 million, 5 million, or 6 million cases in the next few years.

Lastly, if we really want to solve the backlog, the easiest way to resolve the backlog is for Congress to give everyone with an NTA (i.e., everyone with a pending court case) and who meets certain minimal criteria a special visa that regularizes their status and puts them on a path to citizenship just like other lawful permanent residents. Yes, yes—I know that not everyone will like that solution for political reasons, but at least admit that you don’t like it for political reasons, not because it wouldn’t solve the backlog (because it would). After all, the US Census Bureau is already forecasting absolute population decline in the US within our lifetimes. Three million new citizens now wouldn’t solve that problem, but it might not hurt in the long run.

What would you do to solve the backlog? Does the backlog even need to be solved? Let me know what you think in the comments.

Read TRAC’s latest report on the immigration court backlog here.

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1. The immigration courts in their current form have been around since the 1980s, although the adjudicatory powers of immigration officers have existed since the 1890s.

2. Post-publication note: After reading this post, a colleague very rightly cautioned me against comparing the national debt, which is all about money, with the court backlog which affects the actual lives of over 3 million real people! I, of course, completely agree with this point. I would clarify by saying that the alarmism around the number itself is often simply about the sheer size of the number, not about the actual lives affected. The comparison with the debt ticker was made in relation to those cases of “statistical alarmism” for alarmism’s sake. I see I haven’t found a great comparison yet. Metaphors matter!