New migrants pouring into the U.S. after the Biden administration let a COVID-19 restriction called Title 42 expire last week will not break the nation’s stretched court system. The system is already shattered, according to several former judges, immigration experts, and Department of Homeland Security data.
The average wait time for a “Notice to Appear” before a judge at one of the nation’s 66 immigration courts is now four and a half years. In some cities it is much longer. In New York City, new migrants do not have to appear in court until 2032. This growing backlog creates an incentive for more people to cross the border and request asylum as each new case pushes assigned court dates further into the future. In the meantime, many migrants are permitted to live and work in the United States.
“It’s well past broken,” said Art Arthur, a former immigration court judge and now a resident fellow at the conservative Center for Immigration Studies. “The courts weren’t set up for this. When you don’t do anything at the front end, the back end just collapses. Everybody who shows up now knows the chances are 90 percent or better you’re going to be here indefinitely or forever.”
The impact on the courts of the expiration of Title 42 – a restriction former President Trump implemented to expel migrants, even if they were seeking asylum – is one of several unknowns the U.S. will confront in the current wave of migration. The cost to taxpayers is also unclear, though complaints have been mounting in border states that must absorb the crush and in self-proclaimed sanctuary cities that are struggling with pledges made years ago to house and care for migrants.
Federal agencies charged with handling immigration ‒ including the Department of Homeland Security, the Executive Office of Immigration Review, and Immigration and Customs Enforcement (ICE) – did not respond to requests for comment or declined to answer questions on the record.
But a Feb. 18, 2023, internal ICE document obtained by RealClearInvestigations listing the top 10 backlogged locations shows court dates are already far in the future.
The document shows New York leading the list as “fully booked through October 2032.” That time lag tops Florida locations, booked until 2028; Atlanta and San Antonio, where a migrant in the system does not have to appear until 2027; and a handful of other cities such as Chicago, Baltimore, Milwaukee, and Indianapolis, where the backlog carries into 2026.
Early estimates are that at least 11,000 arrivals could pour into the U.S. every day with Title 42 lifted. But much smaller totals have clogged the system for years. Baltimore, for instance, is “mostly booked” with fewer than 3,500 people, while Atlanta has a four-year wait time for just 1,757 people, according to ICE’s February figures.
Critics note the sharp disconnect between the estimated number of migrants who have crossed the border since Biden became president – more than 5 million – and the relatively small numbers of people with court dates. In theory, all migrants, whether they request asylum or not, would be assigned a court date. But the Biden administration has begun a policy of “paroling,” i.e. releasing, many encountered migrants with the expectation they would report to immigration offices at their final destinations.
That leaves most of the millions floating, according to those who study the issue closely.
“Both parolees and asylum applicants are eligible for work authorization,” said Rosemary Jenks, director of government affairs for NumbersUSA, a group pushing for tighter immigration policies. “Despite that, a huge number of those who say they’re here for asylum never actually file an asylum application, so they live and work here illegally.”
As more migrants arrive, court backlogs will undoubtedly be pushed even further into the future. That in turn may prompt more migrants to work through the system, further burdening an overwhelmed system. The delays already in place make it all but impossible for judges to hear cases properly, according to Arthur and another former immigration court judge in Texas, Tony Rogers. Even if somehow the courts were able to triple or quadruple the roughly 600 judges now on the bench, the system cannot keep up with the crush of people crossing the southern border.
“The judges can’t do anything more than saw the wood in front of them,” Rogers said. “It’s a dysfunctional system from top to bottom that is way past broken. This is exactly why all of them are coming – they know you can’t meaningfully try a case five years or more after a claim, and if you buy time long enough they’ll give you something. You’re not going to get deported and sent back.”
The average pending docket for Texas immigration court judges has skyrocketed to 8,000 from the 1,800 average that prevailed when Rogers left the bench 12 years ago, he said, and those figures do not reflect the reality within the U.S. at the moment, with its estimated population of 11.35 million undocumented immigrants.
“It’s actually even worse than what they’re telling you,” Rogers said. “These numbers only reflect people in the system. If they filed NTAs” – notices to appear – “for all the people that have entered, it would be even worse. No one can give you a statistic for that.”
Beyond the overwhelmed court system, the financial strain on taxpayers continues to grow. Sanctuary cities like New York, Chicago, and Washington, D.C. are struggling to meet the cost of just small fractions of the people swarming across the southern border.
New York City is now reportedly spending roughly $8 million a day to house and care for them, some of whom have been bused there from Texas. Mayor Eric Adams said he is considering housing some migrants in a closed prison. Washington, D.C., facing a budget gap of roughly $1.7 billion, says its Office of Migrant Services has spent more than $15.1 million providing housing and other services to immigrants, a figure expected to climb to $52.5 million by October. In January, the state of Illinois rejected Chicago’s request for money saying it had already spent close to $120 million on its “asylum seeker emergency response.”
Like the federal agencies, numerous others knowledgeable about the situation both within and without government did not respond to questions, including Susan Long and David Burnham, the co-directors of TRAC Immigration, a nonpartisan Syracuse University clearing house on information about immigration.
Members of Congress were unwilling to discuss the overloaded court system. RCI reached out to every Republican member of the House Border and Security Enforcement Committee and they did not respond. Similarly, RCI sought comment from a half dozen Democrats on the Committee, as well as two Republicans and Democratic ranking member Jerrold Nadler of New York on the House Judiciary Committee. None responded.
On May 11, hours before Title 42’s midnight expiration, the GOP majority in the House passed H.R. 2, which they labeled the Secure the Border Act.
“House Republicans are fighting to do what the Biden administration refuses to: secure our sovereign borders and protect Americans,” said a joint statement from three GOP committee chairmen – Jim Jordan of Ohio, Mark Green of Tennessee, and Michael McCaul of Texas. “The images coming out of border communities for the end of Title 42 this week are horrifying. There’s no question the border is not secure and the Biden administration has lost all control.”
Federal records show ICE wasn’t using Title 42 to expel many immigrants before. In 2022, the monthly figure for those expelled under Title 42 fell from 8,008 in May to 3,791 in December, the document shows. In the last five months of 2022, an average of 4,000 were expelled by Title 42.
But perceptions about Title 42 being an enforcement tool had worked as a brake on unfettered immigration the Biden administration has chosen to release, Jenks said.
“They know even that’s gone now,” she said. “It’s preposterous and that’s why they keep coming.”
Whatever impact the lifting may have, it can hardly hurt the effectiveness of a court system already characterized by Kafkaesque delays, according to the Federation for American Immigration Reform, a group that has long worked for immigration controls.
“This is kind of a farce,” said Ira Mehlman, FAIR’s media director. “With people having a hearing 10 years from now, it’s pointless, and knowing there are such meaningless dates so far in the future is exactly the incentive and why you see so many people in line to enter.”
Correction, Friday, May 19, 2023, 11:03 AM Eastern