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Originally Posted On: https://www.novo-legal.com/us-immigration-courts-historic-backlog/

What is happening with U.S. immigration cases?

According to the research institution Transactional Records Access Clearinghouse (TRAC), the number of pending Immigration Court cases reached an unprecedented 1,596,193 at the end of December 2021. This is the largest backlog of immigration cases in U.S. history. The average wait time for a person with an open immigration case is now nearly 5 years—a daunting prospect for those stuck in limbo waiting for their case to be processed.

Additionally, the quarterly increase to the Immigration Court backlog from October to December 2021 totaled nearly 140,000 cases. According to TRAC, this exceeds even the largest increases in the Trump Administration by at least 40,000 cases.

According to an article in TIME about the backlog, “[i]n September, DHS announced it would change its priorities for immigration enforcement, focusing on arresting immigrants that pose a ‘threat to our national security, public safety, and border security.’” The new enforcement directive, however, was not formally implemented until November 2021. And prior to the change in policy, deportation orders increased substantially—by over 50% throughout the summer of 2021, according to TRAC.

Why is there such a huge backlog of cases, and what does it mean for those waiting for hearings and court decisions?

Some of the reasons for this historic backlog of immigration cases are circumstantial: the COVID-19 pandemic forced a temporary closure of immigration courts, and delayed the rate at which cases could be handled significantly thereafter. Additionally, the hyper-aggressive enforcement priorities of the Trump Administration have delayed effects, resulting in more arrests and deportation orders until the Biden Administration could change those priorities. The current inefficiencies in the courts system are a direct result of the enforcement tactics employed by DHS during the prior four years.

Some of the reasons for the backlog, however, are structural: the United States has not passed comprehensive immigration reform since 1986; and 1990 saw the most recent smaller reform legislation become law. Since then, every bipartisan effort at reform has failed in Congress. Congress has failed to dedicate any kind of investment in a highly-functioning immigration courts system that would provide resiliency during turbulent events like a global pandemic.

The bureaucratic divisions within DHS also do not allow for efficient disposition of immigration issues. Following the September 11, 2001 terrorist attacks on the United States, the Department of Homeland Security was created, and immigration enforcement became housed within the new department, abolishing the former Immigration Nationalization Service (INS). Immigration policy and legal enforcement has therefore only been a part of the national security-oriented DHS for two decades, presenting unique bureaucratic and political issues that did not exist previously.

No matter the underlying reasons for the backlog, it is undeniable that such a massive backlog in immigration cases poses a serious problem not only for the Immigration Courts system, but especially for the individuals who are awaiting hearings, visas, green cards, or work permits, and status decisions that could drastically change their lives.

What can you do if you or someone you know is affected by the backlog?

While the complex causes for the backlog do not offer hope for a quick solution, we believe that having an experienced immigration law attorney on your side can make a huge difference. Navigating the Immigration Court system can be challenging enough in normal times; with the added pressures on the courts posed by the pandemic and the growing backlog, having an advocate to help with your case is more important now than ever before.

The team at Novo Legal has years of experience working in the Immigration Court system and has been dealing with the effect of the courts’ backlog for quite some time. Even though each case is different and unique, we may be able to help those adversely affected by the backlog.

A Novo legal professional would first assess whether the backlog is harmful or if it somehow advantages the client. Some examples include a case that is difficult to argue on the merits, or a client who has been issued a work permit while waiting in the backlog; those cases might benefit from a backlog-related delay.

In some cases, moving quickly to try and expedite the process is the most beneficial. If it is determined that it could be a good idea to get a case called up early, it could be advanced by:

1. Filing a motion to advance – this would need to prove that any delays caused by the backlog will severely prejudice the client; or
2. Swapping hearing dates with another respondent – one of the reasons why working with a Novo Legal attorney is beneficial is that our professionals can work with you to come up with creative solutions that best fit your case. In some cases, other attorneys may want to switch hearing dates with someone else to buy their client more time. This would need to be approved by the court, but generally it’s not a problem.