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TRAC, July 28, 2021
"The number of new deportation cases filed by the Biden administration is on the rise. Deportation orders sought by the Department of Homeland Security (DHS) jumped by nearly 50 percent in June, compared with the number filed in May. The number of new cases continues to severely outpace the rate at which judges can keep up, resulting in a growing backlog that is approaching 1.4 million. These findings come from case-by-case court records obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.
Due to the COVID-19 pandemic, the number of new deportation cases filed in the Immigration Courts understandably declined starting in March of 2020. Since February 2021, however, the number of new cases has been on the upswing. In fact, the number of new cases in June 2021 are up nearly two-thirds (64%) to 32,515 since last September when 19,871 new filings were received by the Court.
Immigration Court case closures have also increased, but have consistently lagged far behind the volume of new incoming cases. For instance, in June 2021, immigration judges completed 14,232 cases, the highest of any month so far this fiscal year, but still 18,283 less than the number of new cases that were added to the court in the same month. Since DHS continues to file new cases at a higher pace than the courts can complete them, the Immigration Court backlog has increased by almost 100,000 cases since September 2020 at the end of the fiscal year 2020. The total backlog as of the end of June 2021 had reached its highest level ever at 1,357,820 cases waiting to be heard. See Figure 1 and Appendix Table.
The court backlog currently appears to be growing at a slower rate that it had during the Trump administration. The decline in new deportation cases during the pandemic may contribute to this, but other factors may play a role, as well. Some decline of the backlog's rate of growth may also have resulted from the cumulative impact of the recent hiring of more immigration judges. Immigration judges may also become more productive the longer they serve on the bench. And we may expect more productivity gains as the Biden administration restores judges' abilities to manage their own dockets more efficiently.
A factor adding to the backlog's growth, however, is that cases have been taking longer to complete. On average, cases completed during the first nine months of FY 2021 took 891 days (or 2.4 years) from the date of their Notice to Appear (NTA) to a decision, twice as long compared with 451 days (a little more than 1.2 years) on average during FY 2020.
Cases that result in removal orders typically take the shortest amount of time to complete. During the first nine months of FY 2021, only one third (32%) of the 73,986 completed cases resulted in deportation orders, compared with two-thirds (68%) of the 257,448 completed cases in FY 2020. The lower rate of cases that result in deportation should not, however, be interpreted as an intentional policy effect of the current administration nor a change in the disposition of immigration judges. Rather, unusual circumstances beyond the control of the courts, and the pandemic certainly falls into that category, affects the composition of cases that make it to the final stage of the deportation process and may play a significant role in shaping these outcomes.
As the backlog grows, cases in the pending court workload will wait even longer than shown in Figure 2. Already, the average wait for a hearing date as of the end of December 2020 was 1,642 days or about 4.5 years. This is based on the average number of days between the date of the Notice to Appear (NTA) and its currently scheduled next hearing date. Since many cases take more than one hearing, these wait times will undoubtedly be even higher before a decision is rendered and the case is closed.
A "Notice to Appear"—or an NTA—is a document issued by the Department of Homeland Security (DHS) to a noncitizen that the US government believes should be deported. There are many ways that DHS identifies a person to whom the agency issues an NTA, including when a local law enforcement agency refers a case to DHS, when an asylum seeker is denied affirmative asylum, or when DHS officers encounter an individual in the course of general enforcement activity such as a workplace raid. A person who receives an NTA is required to go to Immigration Court hearings (typically more than one hearing is required), where an immigration judge who works for the Executive Office for Immigration Review (EOIR) will decide if that person can and should be deported. The deportation process through the courts takes months and often years from start to finish due to the large backlog of cases, the legal complexity of cases, and external factors that lead to delays such as the pandemic or government shutdowns.
TRAC reports on the numbers of Notices to Appear two ways. This is because NTAs are a valuable indicator of the magnitude of DHS's enforcement activity as well as the Immigration Court's incoming workload. In short, NTAs are pivotal junction between the enforcement wing of the US immigration system (i.e. DHS) and the adjudicatory wing of the US immigration system (i.e. EOIR). Higher numbers of new NTAs suggest an increase in enforcement activity and an increase in workload for immigration judges, while lower numbers of NTAs suggest a decline in enforcement activity and, if not necessarily a decline a workload for judges, at least less growth in the large court backlog. Moreover, comparing the number of new NTAs each month and the number of cases completed each month provides insight into the overall trajectory of the court's backlog: the backlog is likely to grow for any month in which the number of new cases exceeds the number of completed cases.
Tracking NTAs is important, but it presents challenges that, if understood, will empower readers to understand the data more clearly. The complexity is because the same NTAs have two dates associated with them: (1) the date they were issued, and (2) the date they are filed with the Court. Because DHS does not always immediately file every NTA with the court, these two dates may differ. Indeed, sometimes these two dates can differ by months and even years.
The date on the NTA best tracks when DHS enforcement activity occurred. The NTA date is thus used as the timeline TRAC uses in its first tool tracking NTAs available here. So if a user's interest is in understanding the pace of DHS enforcement actions, this should be your preferred tool.
A second timeline, however, is possible for the same set of NTAs. This uses the date the NTA is filed with the Immigration Court and is entered into its workload. The filing date is used in a second tool tracking NTAs available here. This should be the preferred tool if understanding changes in the court's workload or tracking its backlog is the focus.
It is important to emphasize that both approaches are counting exactly the same number of NTAs. They differ only in the dates they use in arraying these cases along these two different timelines. Do these timelines make any real difference? They can. It all depends upon how often DHS delays filing an NTA, and how long this delay is. For example, about 40 percent of NTAs filed during September 2020 had been issued by the DHS over a year earlier. Belated filings soared during the Trump administration and large numbers of NTAs from previous fiscal years began appearing in the Immigration Court records. Delayed filings have fallen dramatically thus far during the Biden administration. Only 4 percent of NTAs filed during June 2021 were dated prior to FY 2021.
In short, for each new deportation case, there are at least two dates which can be used to gain an understanding of immigration enforcement and adjudication: the date the NTA was issued, which may more accurately reflect DHS's enforcement efforts, and the date the NTA showed up in the court records as filed in court, which may more accurately reflect the impact of that case on the Immigration Courts. TRAC counts cases both ways and allows the user to choose which method reflects the context of the analysis or question of current interest.
 With a general readership in mind, TRAC often refers to NTAs as "new deportation cases" or "new proceedings." Technically, there is a legal distinction between removal cases that were filed after the 1996 Congressional immigration reforms and deportation cases that were prior to the 1996 reforms.
 Because DHS has been unwilling to release case-by-case data from each of its units (ICE, CBP, USCIS) TRAC does not receive information at the time each NTA is issued. Our use of court data assumes that for the most part every NTA DHS issues seeking an immigration judge's deportation order actually eventually is filed with the court. Because of filing delays, recent months may represent an undercount."