The Biden administration recently announced plans to start a “new” fast-track docket in the immigration courts to address the courts’ historic backlog. The administration claims that it is implementing this new system to “accelerate asylum proceedings so that individuals who do not qualify for relief can be removed more quickly and those who do qualify can achieve protection sooner”.
This announcement was made concurrently with the issuance of the Department of Justice (DOJ) Executive Office for Immigration Review’s (EOIR) final rule that undoes many of the procedural immigration court efficiencies that were put into place during the Trump administration. The new rule also expands immigration judges’ authority to administratively close,1 terminate, or dismiss2 cases in removal proceedings.
The New Dedicated Docket
The new dedicated docket (sometimes called a “rocket docket”) aims to have judges rule on cases within 180 days. Under current policies, most border-crossers will not have their first immigration hearing for years after being released from detention and issued a Notice to Appear (NTA) in immigration court. While the Department of Justice has not publicly shared data regarding how long recent arrivals must wait for their first immigration court hearing, in April 2023 AP reported and U.S. Rep. Henry Cuellar (D-Texas) stated that some recent migrants were asked to make their first appearance in immigration court in March 2033 — a full decade out at the time it was reported.3
Only illegal border-crossers who are considered “single adults” (i.e., are not arriving in a family unit) will be subject to the expedited docket. The Biden administration already has an expedited docket for family units, called Family Expedited Removal Management (FERM), but under this program, immigration judges aim to complete cases within 300 days.4
Both the Obama and Trump administrations implemented “rocket dockets” to address border surges. Neither administration, however, released aliens using “Alternatives to Detention” protocols to the degree the Biden administration has since 2021.
The catch, however, is that of course only aliens who are subject to “expedited removal” proceedings will be processed by EOIR in this way. Aliens who have been released with an NTA for standard Section 240 removal proceedings or whose cases have been diverted to USCIS for processing under what is referred to as the “Asylum Processing Rule” will not be affected.5
As of December 30, 2023, just 116,957 aliens have been processed under FERM. To put this in perspective, 993,947 aliens in family units entered the United States in 2023 alone.
FERM appears to have had little to no impact on the rate of migrants entering the United States illegally as family units. Family unit arrivals continue to exceed historic levels. Each month of fiscal year 2024 has seen higher numbers of nationwide family unit encounters than the same month in the previous three years of the Biden administration. For instance, the number of family units encountered by CBP in April of 2024 (78,599) exceeded the number encountered in April 2021 (50,370), April 2022 (39,302), and April 2023 (72,994). Comparing numbers by month is useful to avoid discrepancies caused by seasonal trends.
EOIR’s Case and Docket Management Final Rule
At the same time the Biden administration announced that it is “accelerating” certain single adult cases in expedited removal, it published a regulation that will slow down the immigration court system as a whole. The regulation repeals numerous regulatory provisions that were issued under the Trump administration to reduce unnecessary delays in immigration court adjudications generally — including by imposing shorter and concurrent briefing schedules and limiting remands from the Board of Immigration Appeals (BIA) to the immigration courts.
These administrative updates were likely announced in tandem to temper public backlash against making such changes at a time when the immigration courts are experiencing unprecedented backlogs. The rule will likely make it even harder for the government to remove deportable aliens from the United States within a reasonable amount of time.
According to EOIR data from January 2024, the immigration courts’ overall backlog stands at approximately 2.8 million cases. The latest data from TRAC, however, indicates a backlog of 3.6 million pending cases. (The discrepancy could be for several reasons; because TRAC obtains its data directly from FOIA requests, TRAC’s numbers could be missing the number of administratively closed cases, depending on how its request was worded, or, simply, there could have been an increase of approximately 800,000 pending cases between January and April of 2024.)
Using EOIR’s data, however, this is a 1,405 percent increase since 2008, at which time EOIR reported a backlog of over 186,000 cases, and a 157.4 percent increase from 2019’s backlog of over 1,088,000 cases. As of the first quarter of 2024, BIA reported 106,729 appeals pending — the highest number of pending appeals ever reported by the agency.
These extreme backlogs are not only eroding the credibility of the immigration system, but also encouraging additional illegal immigration to the United States. This is because long backlogs ensure that even those aliens who meet the Biden administration’s narrow enforcement priorities or do not have legitimate asylum claims are nevertheless provided an opportunity to live in the United States for numerous years — longer than nearly all nonimmigrant visa categories’ periods of validity. Aliens who are either paroled out of detention or file asylum applications are also eligible to receive employment authorization documents to work in the United States legally until their claims are adjudicated.
End Notes
1 Administrative closure is defined as “an order by an Immigration Judge removing a case from the Immigration Court’s calendar”. An administrative closure does not result in a final order or disposition in an immigration case. Sometimes, administrative closure has been used to allow an alien to pursue an immigration benefit or form of relief they are eligible to apply for or to await an event that is outside of the immigration courts’ jurisdiction to occur.
2 While the terms “termination” and “dismissal” in this context are sometimes used interchangeably, a dismissal in immigration court means that the court has decided to close the case without reaching a final decision on the merits of the proceedings, without prejudice to either the alien or DHS. Termination, on the other hand, is a decision by the immigration judge to end the removal proceedings with a specific outcome, generally in favor of the alien.
3 The amount of time a migrant must wait for their hearing varies based on the location of the specific immigration court.
4 Heads of household are eligible to be enrolled in FERM if they are processed for expedited removal, nationals of countries to which ICE maintains regular removal flights, and are residing in a location under the jurisdiction of the ICE field office based in one of four FERM-destination cities.
5 This rule was issued in the Spring of 2022 and allows asylum officers, rather than immigration judges, to make final decisions on credible fear claims made in the border region.