Finding solutions to the soaring backlog of immigration cases

There was a time when immigration lawyers would hold news conferences to bring attention to the fact that the backlog of immigration court cases was in the hundreds of thousands, with up to 600,000 pending cases.

Now, according to data compiled by Syracuse University’s TRAC program, unresolved cases stand at nearly 2 million, with 750,000 of them being applications for asylum. Making the backlog even more daunting: There are only about 600 immigration judges throughout the country to oversee and resolve those cases.

The immediate answer, it seems, is to hire more immigration judges to help with the backlog. But as one expert pointed out, a missing piece of the puzzle to deal with the backlog is prioritizing which cases are heard first and which could go to other courts.

“Whether we have 600, 700 or 800 immigration judges working on these cases, this backlog is something that is a vast departure from any historical precedent,” said Jeremy McKinney, president of the American Immigration Lawyers Association. “The [lack] of judges is part of the problem, but it is not the solution.”

The Biden administration should focus the very finite resources available to the overwhelmed U.S. immigration system on national security risks, public safety risks and recent entrants to the U.S. — which include the rising number of migrants being bused to cities such as Chicago and New York City. Most of those being bused are asylum seekers.

As a practitioner, McKinney says that strategy is not what is currently happening.

“The current administration is seeking to enforce immigration laws against people who have been here for more than a decade, have U.S. citizen children and don’t have a criminal record. And that’s a waste of time,” he said. “If you include people who can pursue relief before other agencies, such as obtaining a visa abroad or public benefits before USCIS (U.S. Citizenship and Immigration Services), that accounts for roughly 700,000 of the existing backlog that could be addressed by other agencies.”

Because of the high volume of unresolved cases, migrants have to wait an average of four years for a hearing before an immigration judge, leaving them in legal limbo. And then there’s the U.S. law that grants asylum-seekers work permits for only 180 days after an asylum petition is filed, leaving migrants to choose between waiting years for the possibility to work in the country legally or be forced to work illegally in order to support themselves and their families.

The lack of judges to resolve cases prevents the government from determining whether someone qualifies for asylum in a timely manner. It’s a weakness in the immigration system that could encourage migrants who don’t have substantive asylum claims to abuse the system and stay in the country, while people fleeing actual troublesome and deadly situations continue to wait for their court dates.

Reasonably slimming down the dockets assigned to immigration judges would not only lighten the backlog of cases, but also grant judges more time to thoroughly assess claims and to provide justified relief to those who desperately need it.

Overall, nearly 3,700 migrants have been bused to Chicago from Texas through Operation Lone Star, launched by Texas Gov. Greg Abbott. And the city, along with nonprofit organizations, has had to think on its feet to accommodate the influx of thousands of unannounced asylum-seekers, including hundreds of school-aged children.

Whittling down the overwhelming backlog of nearly 2 million immigration cases is a daunting task, but one that must get done.

If not, the backlog will keep ballooning, as long as America remains a beacon for migrants fleeing danger and seeking freedom and opportunity.

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