Statement on US Senate Judiciary Subcommittee Hearing Examining Status of US Immigration Courts
Center for Migration Studies of New York
November 28, 2023
Statement of the Center for Migration Studies of New York
The US Senate Judiciary Subcommittee on Immigration, Citizenship, and Border Security
Hearing on “Preserving Due Process and the Rule of Law: Examining the Status of Our Nation’s Immigration Courts”
October 18, 2023
The Center for Migration Studies of New York (CMS) is an educational institute dedicated to the study of international migration and US immigration policy. On May 25, 2023, CMS published a study in its Journal on Migration and Human Security, entitled, “The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog.” 
Authored by former CMS executive director Donald Kerwin and guided by an expert advisory group, the study examines weaknesses in the US immigration system that contribute to an increasing backlog of pending removal cases. The paper attributes the court backlog – which had reached 1.87 million cases by the time of study’s publication and climbed to 2.16 cases by the third quarter of 2023 – to failures in the broader US immigration system, as follows:
- Visa backlogs, US Citizenship and Immigration Services (USCIS) application processing delays, and other bottlenecks in legal immigration processes: large numbers of persons in court proceedings have applied and qualify for visas but are among the millions stuck in legal immigration backlogs and, thus, in removal proceedings;
- The immense disparity in funding between the court system and the Department of Homeland Security (DHS) agencies, which feed far more cases into the immigration courts – nearly twice as many in FY 2022 and 2023 than the courts can complete; 
- The failure of Congress to pass broad immigration reform legislation that could ease pressure on the enforcement and court systems;
- The lack of standard judicial authorities vested in Immigration Judges (IJs), limiting their ability to close cases, to pressure parties to “settle” cases, and to manage their dockets.
- The absence of a statute of limitations for civil immigration offenses, meaning that person can be deported for ordinary immigration offenses they committed decades in the past;
- Past and current DHS failures to establish and adhere to enforcement priorities and to exercise prosecutorial discretion throughout the removal adjudication process, including in decisions to pursue removal in low-priority cases;
- The location of the Executive Office of Immigration Review (EOIR), which oversees US immigration courts, within the nation’s preeminent law enforcement agency, the Department of Justice (DOJ);
- The misconception of many policymakers that the court system should primarily serve as an adjunct to DHS, rather than an independent entity devoted to due process, access to justice, the rule of law, and making the right decisions under the law; and
- A past record of temporary judge reassignments and government shutdowns, which significantly exacerbated the backlog.
A primary reason for the massive court backlog is that Congress and successive administrations have found common cause in increasing funding and expanding the authorities of US immigration enforcement agencies, which in turn have fed cases into the court system for years. At the same time, Congress has failed to provide the resources to EOIR to respond to the increased caseloads. In FY 2022, EOIR’s budget of $760 million represented just 3 percent of the combined budgets of Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). The lack of appropriate funding for the immigration court system has led to a shortage of immigration judges (IJs) and an absence of adequate infrastructure. The CMS report uses different case receipt and case completion scenarios to highlight the need for hundreds of additional judges. The administration’s recent supplemental funding request for its migration strategy includes “375 new immigration judge teams to adjudicate and process immigration cases more quickly and help reduce the caseload backlog,” along with 1,600 additional asylum officers and support staff. This request is inadequate, but would nonetheless be a step in the right direction. 
A second main reason for the court backlog is the failure of Congress to reform the immigration system, which should include a general legalization for immigrants who have built equities in the country and otherwise abided by the law. Such reform could reduce the backlog significantly by significantly reducing the number of US residents who are subject to removal.
Besides these two overall solutions, there are other methods to address the immigration case backlog, including the following:
- Provide greater discretion to prosecutors not to initiate or to dismiss certain cases, such as cases in removal proceedings for at least five or three years; cases in which the respondent has a USCIS application pending that, if approved, would result in permanent residence; and cases involving applications for relief that both EOIR and USCIS have statutory authority to adjudicate.
- Eliminate backlogs and processing delays elsewhere in the immigration system that contribute to the court backlog, including family- and employment-based visa backlogs, and backlogs in the adjudication of immigration applications and petitions. Congress could solve the issue of visa backlogs by reissuing unused visas and reforming the family-based and employment-based immigration system.
- Halt the reassignment of immigration judges to the border at the expense of cases in the interior of the country.
- Establish and implement enforcement priorities that allow EOIR to complete more cases than it receives in a given year and thus reduce the backlog.
- Provide sufficient funding to create a well-resourced immigration court system.
CMS believes that these steps would reduce and ultimately eliminate the court backlog and help create a more efficient and responsive US immigration system overall. We would like to submit our report for the record.
Thank you for your consideration of our views.
 The CMS study is available at https://journals.sagepub.com/doi/10.1177/23315024231175379.
 See, “FACT SHEET: Biden-Harris Administration Supplemental Funding Request,” October 23, 2023, at https://www.dhs.gov/news/2023/10/20/fact-sheet-biden-harris-administration-supplemental-funding-request.
October 18, 2023