MPI Report Offers Solutions to Repair a U.S. Immigration Court System in Crisis

WASHINGTON — The U.S. immigration courts—and the federal immigration enforcement system they support—are facing an unprecedented crisis. With a backlog of nearly 2 million cases, more than 700,000 of which were received last fiscal year, as well as resource and decision-making constraints, it can take years for the system’s 650 or so immigration judges to render decisions. Asylum seekers, who represent 40 percent of the courts’ caseload, now wait four years on average for their initial asylum hearing to be scheduled, with final decisions farther off.

These years-long waits leave people in need of protection in limbo, hamper immigration enforcement for those determined to be removable from the United States and function as a pull factor incentivizing unauthorized immigration.

A report out today from the Migration Policy Institute (MPI), At the Breaking Point: Rethinking the U.S. Immigration Court System, traces the factors that have driven the court system to crisis. It also assesses steps taken recently to improve the courts’ functioning and offers recommendations that the executive branch could implement to address the massive backlogs and improve the pace and quality of decision-making.

“Many of the factors contributing to the dramatic rise in the courts’ caseload have deep and wide-reaching roots, from long-standing operational challenges in administering the courts to new crises in the Americas that have intensified both humanitarian protection needs and other migration pressures,” the report notes. “The scale of these twin challenges has made it more urgent than ever to address them together.”

While the current administration has implemented some measures to improve functioning within the Executive Office for Immigration Review (EOIR) and the Board of Immigration Appeals (BIA), the immigration court and appellate system housed within the Justice Department, the steps fall short of the hallmarks of a well-functioning adjudicatory system: That decisions be accurate, efficiently made, consistent across judges and jurisdictions, and accepted as fair by the public and involved parties.

While proposals have been advanced to reform the immigration courts by establishing an independent judicial system outside the Justice Department, such a structural change would require action by Congress. Given legislators’ demonstrated inability over the past two decades to address any significant immigration issues, the report offers recommendations that can be taken with executive branch actions.

The findings and recommendations result from an in-depth project in which MPI analysts interviewed policymakers, current and former immigration judges, immigration attorneys and advocates, legal services providers and other experts who have administered, practiced before and studied the immigration courts. MPI’s U.S. Immigration Policy Program convened private, off-the-record roundtables; conducted confidential interviews; and analyzed data, case law and federal regulations relevant to the administration and performance of the immigration courts.

Among the recommendations to improve the courts' performance and, in turn, enhance the effectiveness of the U.S. immigration system more broadly:

• Temporarily schedule new cases on a “last-in, first-decided” basis. Such a reset, which has proven successful in the past, could bring processing times on new cases down to months, rather than years.
• Model practice in state and federal court systems and establish two tiers of immigration judges, magistrate and merits judges, which could move cases through the system more efficiently.
• Terminate cases that do not meet prosecutorial guidelines, which presently focus on felons, security threats and recent entrants.
• Restart the asylum officer rule, which allows border asylum cases to be decided by U.S. Citizenship and Immigration Services (USCIS) asylum officers rather than immigration judges. This would slow the pace of growth of the immigration courts’ caseload. The rule was paused with the May 2023 lifting of the pandemic-era Title 42 border expulsions policy given competing demands for asylum officer resources.
• Increase access to legal representation, which is a critical issue plaguing the courts. Research has repeatedly found that representation in immigration proceedings improves due process, fair outcomes and courtroom efficiency. For example, EOIR could work with NGOs to make representation a priority. Legal service providers could tap new and innovative ways to scale up representation, including by enabling non-lawyers who are specially trained and supervised to take on aspects of cases, such as filing forms and attending preliminary hearings. And state and local governments, which have in some cases stepped in to fund representation given federal funding is effectively barred, could intensify their efforts.

“The measures proposed in this report hold the potential to reduce case volumes, increase the pace of decision-making and improve the quality of adjudications. They would also mitigate migration pull factors that result from years-long waits for decisions,” write authors Muzaffar Chishti, Doris Meissner, Stephen Yale-Loehr, Kathleen Bush-Joseph and Christopher Levesque.

“The deeply interconnected nature of the nation’s immigration court system and its immigration enforcement and asylum systems mean that such efforts to modernize and fully resource the courts are critical to the health of the U.S. immigration system overall.”

Read the report here: www.migrationpolicy.org/research/us-immigration-courts.

For more from MPI’s U.S. Immigration Policy Program, visit: www.migrationpolicy.org/programs/us-immigration-policy-program.

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