Immigration Court Backlog Sits at Nearly Three Million; Biden’s Policies Piling on More
FAIR Take | December 2023
The monthly number of illegal aliens crossing our border is the immigration statistic that gets the most attention. The attempts by the open-borders lobby to hide stories of record-high illegal entries are proof of its importance. However, it is the cascading numbers of migrants moving through our immigration system that show just how entrenched our border crisis has become. Our nation’s immigration courts have now accumulated a record backlog of nearly 3 million cases according to Syracuse University’s TRAC database, and policies that reward illegal immigration and frivolous asylum cases are to blame.
The immigration court backlog represents the number of pending cases, mostly asylum cases, before immigration courts. This number now stands at more than 2,930,000—double what it was at the beginning of the Biden administration and almost ten times higher than a decade ago. The Biden administration’s proposed border security “fix” would fund thousands of new judges and staff at these courts, but the proposal to fast-track cases would do nothing to address the existing backlog. Specific policies that make illegal immigration easier and reward frivolous asylum claims are to blame for the millions of cases currently cramming our immigration courts, most of which will not succeed.
Possibly the strongest motivation to file an asylum case in the U.S. is the availability of work authorization. Illegal aliens who apply for asylum can file for work authorization 150 days after submitting an asylum application and then remain in the U.S. legally working for years while their case winds through the massively backlogged immigration courts. This creates a strong incentive for the vast majority of illegal aliens who are released into the country with weak cases or no cases at all to file an asylum application. Biden administration policy changes like extending the validity of work authorization from two to five years for asylum applicants only make a frivolous application more attractive to an alien whose true motivation for entering the U.S. is economic, not to flee persecution. This is what creates the backlog, not a lack of immigration judges or funding.
Take, for example, the 181,000 Colombians who had pending asylum applications at the beginning of this fiscal year, according to the TRAC database. The average days since filing for these pending cases is 274, less than half the all-nationality average of 586 days. This means that these applications are disproportionately recent. Colombia is a nationality with just a 24% asylum grant rate, meaning that most Colombians who apply for asylum will never receive it. Nevertheless, the Biden administration continues to make it easier for Colombians and other similar low-grant-rate nationalities like Ecuador to enter as illegal aliens and then file asylum cases.
For other far-flung nationalities like Senegal and Mauritania, the number of asylum applicants has increased by over 1,500 percent since the Biden administration began the mass release of illegal aliens. If the border is effectively open, this incentivizes nationals from all over the world to try and get to the U.S.-Mexico border. For some of these individuals, work may not be the only reason for their desire to enter the U.S. Many of the nationalities whose application numbers are skyrocketing are from countries with serious national security concerns around terrorism. The recent arrest of a Senegalese national wanted for terrorism in New York City only highlights these dangers.
The backlog in our immigration court system is not an inevitability. The Biden administration’s lax policies like handing out multi-year work permits are encouraging aliens to come from across the globe. Rather than simply throw money at processing frivolous cases faster, the American people deserve immigration policies that actually discourage fraudulent asylum claims and the abuse of our laws. Policy changes like H.R. 2, the Secure the Border Act, would raise the standard for claiming asylum and prevent the catch-and-release policies that create this backlog in the first place. What is clear is that an asylum system originally intended to protect the vulnerable is being grossly misused, and expanding the system will only make that misuse more expensive for American citizens.