On May 9, 2018, the Executive Office for Immigration Review (EOIR), the Department of Justice (DOJ) component responsible for the immigration courts and the Board of Immigration Appeals (BIA) released updated court statistics, and announced that it intended to implement a “transparency initiative”.
The court statistics included statistics for the first two quarters of FY 2018. Among the key takeaways:
The total number of pending cases continues to rise. As of the date those statistics were released, there were 697,777 cases pending before the approximately 334 immigration judges in the immigration courts, or just less than 2,090 cases per judge. That said, however, total case completions were up in FY 2017 to 169,150, as compared to 153,133 in FY 2016. Through the first two quarters of FY 2018, the immigration courts had completed 92,009 cases; if this trend holds, the immigration courts will complete more than 184,000 cases this fiscal year.
While this completion rate is off of the historical average, it reveals a reversal of the downward trend in case completions that had been occurring since FY 2008, with the exception of a slight uptick in FY 2015, from a 10-year low that occurred in FY 2014 (when the courts completed only 152,901 cases). That exception was likely related to the “surge” of unaccompanied alien children (UACs) and family units that occurred that year, and which drew off immigration court resources.
Also notable within those statistics is the increase in the asylum denial rate. That denial rate went from 22.56 percent in FY 2016 to 33.51 percent in FY 2017, an almost 50 percent increase in one year. The denial rate for the first two quarters of FY 2018 shows a similar increase in asylum denials (41.82 percent), an almost 25 percent increase over FY 2017. Most significantly, however, the actual number of asylum denials for the first two quarters of FY 2018 (11,937) is already greater than the number of denials in FY 2016 (11,736). This increase in denials likely reflects the decrease in the number of administratively closed asylum cases.
Specifically, in FY 2016, 18,872 asylum cases were administratively closed, whereas in FY 2017, only 9,840 cases were, a figure that dropped to 1,511 in the first two quarters of FY 2018. As the Government Accountability Office (GAO) explained in a June 2017 report on backlogs before the immigration court:
Administrative closure is a procedural tool available to an immigration judge which is used, as appropriate under the circumstances, to temporarily remove a case from the active calendar. Cases that are administratively closed can be recalendared at a later date.
Most of those administratively closed cases would likely have resulted in denials, as an alien with a strong asylum claim would have opposed administrative closure, or would have moved to recalendar an administratively closed case. As the BIA held in Matter of W-Y-U-:
An alien in removal proceedings has a right to seek asylum and related relief from persecution. … Therefore, assuming that his application was properly filed and that he is eligible for the relief sought, the respondent has a right to a hearing on the merits of his claim. If his application is successful, he may be eligible for lawful status in the United States, while administrative closure provides him no legal status.
If this is correct, fewer aliens with non-meritorious asylum claims are being allowed to remain in the United States indefinitely.
Interestingly, according to the EOIR statistics, the number of in absentia orders, that is, orders of removal issued in cases when the alien fails to appear, continues to increase. In FY 2017, 40,579 in absentia removal orders were issued, an increase of more than 26 percent over FY 2016, when 32,149 in absentia removal orders were issued. For the first two quarters of FY 2018, 22,411 in absentia orders were issued; if this trend continues for the rest of the fiscal year, the number of removal orders issued after aliens fail to appear for their hearings will surpass FY 2017.
The reason for the increase in in absentia orders is not entirely clear, but may reflect a concern amongst aliens with no relief, or weak claims to relief, that they are more likely to be ordered removed under the Trump administration than they were under the Obama administration. That said, the number of in absentia orders of removal has been steadily increasing since FY 2012, following a drop off between FY 2010 (20,412 in absentia orders of removal) and FY 2012 (16,491 in absentia orders of removal).
Those statistics further reveal that detained cases (where the alien is in custody) are being completed more quickly. The median number of days for completion of a detained case has decreased from 44 in FY 2016, to 43 in FY 2017, to 40 in the first two quarters of FY 2018. While this is still off of historical averages, it shows that the immigration courts are completing the most critical and costly cases more quickly.
Additional information is, however, needed to understand the full implications of certain of the statistics that EOIR released. For example, the UAC in absentia removal numbers, while helpful, would have more context if the total number of UAC removal cases that were completed had been included. In addition, inclusion of the total number of removal orders would place the number of in absentia removal orders into better context. As the office has stated: “EOIR will release … other data on a recurring basis. … The full upload of the data is expected within the next two weeks.” It would be helpful if this information were included in that upload.
That said, however, the recent EOIR statistics provide needed insight into the current activities of the immigration courts, and the office’s efforts at greater transparency should be applauded.