The Justice Department said Wednesday that the immigration court backlog significantly jumped in the last 18 months, in large part because the Trump administration is returning many of the cases the Obama administration ignored back into active status.
The department’s Executive Office of Immigration Review released data Wednesday evening that shows it had 697,777 asylum cases on the docket as of March 31, the halfway point of fiscal year 2018.
That’s a steep increase from the 519,053 active immigration cases at the end of 2016, a number that grew 25 percent by the end of 2017.
A number of factors contributed to the jump in backlogged cases, including an uptick in the number of migrants who traveled to the southwest border and filed for asylum from the end of the 2016 presidential election.
But a Justice Department spokesperson said the biggest factor was a decision by the Trump administration to end an Obama administration policy related to how asylum requests were processed.
Once a person arrives at the border or is apprehended by law enforcement, he or she can claim credible fear about returning home. That person will be turned over by U.S. Customs and Border Protection, a DHS agency, to either the Justice Department’s EOIR or DHS’s U.S. Citizenship and Immigration Services, which handle the individual’s legal case.
In 2011, John Morton, then-director of DHS agency U.S. Immigration and Customs Enforcement, issued a policy memo that said “the agency is confronted with more administrative violations than its resources can address [and] must regularly exercise ‘prosecutorial discretion’ if it is to prioritize its efforts.”
In the case of asylum requests, the new policy gave ICE more freedom to decide which cases should proceed through the courts and which could be put in a new category called administrative closures, though this classification can also be used for nonasylum cases.
But this “administrative closures” approach never resolved those cases, and instead delayed those that were deemed not critical. Following the policy direction, the number of inactive cases jumped from 195,956 in 2012 to 355,835 in 2017.
“It was a form of completing a case, but the case was never fully adjudicated or decided by an immigration judge,” the Justice Department official said.
During his first week in office, President Trump rescinded all DHS memos in a way that made all immigration cases a priority to resolve. That led to a big jump from 2016 to 2017 in active court cases, and the number is still climbing.
Meanwhile, the number of inactive cases is even falling slightly as the government takes on more of the backlogged cases. The government has also managed to complete more court cases in 2017.
“EOIR is beginning to reverse a downward trajectory of completions despite historic levels of new cases, less cases closed due to administrative closure, and an increase in recalendared cases,” the agency said in a statement issued Wednesday. “Last year, EOIR completed more cases than any year since FY12, and is on pace to complete approximately 184,000 cases by the end of FY18.”
Dramatic upticks in the number of apprehensions of illegal entrants at the southwest border in March and April is likely to result in an additional asylum cases to the active cases backlog, but the two federal departments are making progress even if it may not look like it on a month-to-month basis.
“I think we’ve been criticized a little bit for how the backlog has increased and I think we’ve been pretty clear that important work like this takes time and nobody ever set the expectations that we were going to start decreasing the backlog in the first year. With that said, there are shifts in policies — when we’re recalendering [inactive] cases. We’re going to be hearing more.”
