U.S. Immigration Courts and the Pending Cases Backlog

U.S. Immigration Courts and the Pending Cases Backlog

U.S. Immigration Courts and the Pending Cases April 25, 2022
Backlog
Holly Straut-Eppsteiner
U.S. immigration courts adjudicate cases according to immigration laws enumerated in
Analyst in Immigration
the Immigration and Nationality Act. Congress’s interest in immigration courts has been
Policy
heightened by lawmakers’ concerns over executive branch agencies’ capacity to secure

the border and provide due process and humanitarian protection for foreign nationals
seeking to enter or remain in the United States. During removal proceedings in

immigration courts, immigration judges (IJs) determine whether noncitizens who have been charged with
violations of immigration law by the Department of Homeland Security (DHS) are removable and, if so, whether
they qualify for forms of relief from removal such as asylum. Immigration courts are part of the executive branch,
within the Department of Justice’s Executive Office for Immigration Review (EOIR)—they are not within the
federal judiciary.
Removal proceedings in immigration courts begin when DHS files a Notice to Appear with the court. EOIR has
become increasingly unable to adjudicate in a timely manner the hundreds of thousands of cases it receives from
DHS each year and, as a result, immigration courts have a large and growing backlog of pending cases. At the end
of the first quarter of FY2022, the backlog reached an all-time high of 1.5 million cases, with 578 IJs on staff to
adjudicate them.
Because of the backlog, some individuals must wait years to have their cases adjudicated. Some lawmakers have
raised concerns about whether the backlog encourages unauthorized migration and the extent to which those
awaiting removal proceedings fail to appear for their hearings. Others have questioned whether noncitizens in
removal proceedings—particularly those without legal representation—receive due process. Those in removal
proceedings may secure representation at their own expense but they do not have the right to government-
provided counsel.
Factors associated with the growth in the immigration courts backlog are both internal and external to EOIR.
These include immigration court resources and staffing, increased DHS interior and border enforcement, changing
migrant arrival patterns at the U.S.-Mexico border, and impacts from the COVID-19 pandemic. EOIR has
responded to its growing caseload by increasing IJ hiring substantially in recent years. Nevertheless, CRS analysis
projects that at current staffing levels, the backlog will continue to grow.
Lawmakers, EOIR leadership, IJs, immigration attorneys, and other interested parties have implemented and
proposed a range of solutions to reduce the backlog, some of which have been subject to debate. These include
hiring additional IJs, using docket management tools, changing IJ performance standards, accelerating dockets for
certain populations, and changing the defensive asylum system.
Longstanding debates center on the independence of courts and autonomy of IJs, who are attorneys appointed by
the Attorney General as administrative judges. Opponents of the current courts structure contend that courts—
specifically, agency policies impacting IJs—are subject to politicization under the political leadership of a law
enforcement agency within the executive branch. Many stakeholders have advocated for a courts system
independent of the executive branch under Article I of the Constitution (legislative powers). Some proponents
believe such a change would help alleviate the backlog. Others observers believe that restructuring courts would
be a costly measure that would not effectively solve the immediate problem of the backlog.

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Contents
Introduction ..................................................................................................................................... 1
EOIR’s Adjudicatory Components .................................................................................................. 2
Office of the Chief Immigration Judge (OCIJ) ......................................................................... 2
Board of Immigration Appeals (BIA) ....................................................................................... 4
Office of the Chief Administrative Hearing Officer (OCAHO) ................................................ 5
Removal Proceedings in Immigration Courts ................................................................................. 5
DHS Components and Notice to Appear Issuances .................................................................. 6
Master Calendar Hearing .......................................................................................................... 8
Merits Hearing and IJ Decision ................................................................................................. 9
Options for Appeal and Motions to Reconsider or Reopen ...................................................... 11
Detention and Bond Proceedings ............................................................................................. 11
Removal Proceedings: Selected Policy Issues ........................................................................ 12
Access to Counsel ............................................................................................................. 13
In Absentia Removal Orders ............................................................................................. 15
Pending Cases Backlog ................................................................................................................. 17
Factors Associated with the Backlog ...................................................................................... 19
Funding Disparities Between EOIR and DHS Enforcement Agencies ............................. 20
IJ Staffing and Productivity .............................................................................................. 21
Interior and Border Enforcement ...................................................................................... 24
COVID-19 and Temporary Court Closures ...................................................................... 29
Proposed Solutions to the Backlog ......................................................................................... 30
Hiring More Immigration Judges and Court Staff ............................................................ 31
Docket Management and Administrative Closure ............................................................ 34
IJ Quotas and Performance Measures ............................................................................... 36
Accelerated Dockets ......................................................................................................... 37
Migrant Protection Protocols (Remain in Mexico) ........................................................... 39
Proposals to Change the Defensive Asylum Process ........................................................ 40
Proposals for an Article I Court System .................................................................................. 42
Conclusion ..................................................................................................................................... 43

Figures
Figure 1. Map of Immigration Courts and Immigrant Adjudication Centers (IACs) ...................... 4
Figure 2. Immigration Judge Decisions (Initial Case Completions), FY2017-FY2021 ................ 10
Figure 3. Bond Hearing Outcomes, FY2012-FY2021 .................................................................. 12
Figure 4. Initial Cases Received, Completed, and Pending (Backlog),
FY2002-FY2022(Q1) ................................................................................................................. 17
Figure 5. BIA Case Appeals Filed, Completed, and Pending, FY2012-FY2021 .......................... 18
Figure 6. OCIJ Case Completions as a Percentage of Case Receipts by Fiscal Year,
FY2002-FY2021 ........................................................................................................................ 19
Figure 7. Average Annual Case Completions per Immigration Judge, FY2002-FY2021 ............. 23
Figure 8. DHS NTA Issuances and Pending Immigration Court Cases, FY2011-FY2020 ........... 25
Figure 9. Defensive Asylum Applications Filed and Pending, FY2013-FY2022(Q1) .................. 26
Figure 10. NTA Issuances by DHS Component, FY2011-FY2020 ............................................... 29
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Figure 11. Immigration Judges Hired, Departed, and On Board, FY2011-FY2021 ...................... 31
Figure 12. Estimated Pending Cases Backlog under Different Immigration Judge Hiring
Scenarios .................................................................................................................................... 34
Figure 13. Administrative Closures by Fiscal Year, FY2002-FY2021 .......................................... 35

Tables
Table 1. Types of Immigration Court Hearings ............................................................................... 2
Table 2. Common Types of Protection and Relief from Removal ................................................... 8
Table 3. EOIR Annual Appropriations .......................................................................................... 20
Table 4. Estimated Impact of Immigration Judge Hiring on Pending Cases Backlog ................... 33

Table A-1. Acronyms ..................................................................................................................... 45

Appendixes
Appendix. ...................................................................................................................................... 45

Contacts
Author Information ........................................................................................................................ 46

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U.S. Immigration Courts and the Pending Cases Backlog

Introduction
Immigration court proceedings, appellate reviews, and administrative hearings are adjudicated by
the Executive Office for Immigration Review (EOIR), an agency within the U.S. Department of
Justice (DOJ), under authority delegated by the Attorney General. Immigration courts are not part
of the federal judiciary. EOIR was established in 1983 as a new agency within DOJ when the
Board of Immigration Appeals (BIA) merged with the immigration judge function that was
previously part of the Immigration and Naturalization Service (INS)1.2 Moving immigration
courts from INS to a new agency within DOJ separated the adjudication of immigration cases
from immigration enforcement.
Immigration courts adjudicate cases according to immigration laws enumerated in the
Immigration and Nationality Act (INA). The most common immigration court proceedings are
removal proceedings, under INA Section 240, which commence when a noncitizen is charged
with an immigration violation by the Department of Homeland Security (DHS)—the federal
agency responsible for enforcing immigration laws. Individuals may be charged at the U.S.
border or within the interior of the country with grounds of inadmissibility3 or deportability.4
Individuals in removal proceedings include both recent arrivals and people who already are
residing in the United States.
During removal proceedings, EOIR’s immigration judges (IJs) determine whether a foreign
national, referred to as a respondent, is removable. If so, the IJ will determine whether the
respondent is eligible for forms of protection or relief from removal (e.g., asylum) for which the
respondent has applied. IJs are attorneys appointed by the Attorney General as administrative
judges.5 Removal cases are prosecuted by attorneys from the Office of the Principal Legal
Advisor (OPLA), part of DHS’s Immigration and Customs Enforcement (ICE). Respondents may
retain counsel at their own expense; however, a high proportion are unrepresented (47% of
pending cases were unrepresented by counsel as of the first quarter of FY2022).6
Immigration courts have been increasingly unable to adjudicate in a timely manner the volume of
cases they receive from DHS. The number of cases received annually by immigration courts has
fluctuated over the past two decades, ranging from a low of 176,111 in FY2001 to a peak of
547,234 in FY2019. The number of cases pending in the courts has increased every fiscal year for
the past 15 years, from 168,827 in FY2006 to an all-time high of approximately 1.5 million in the
first quarter of FY2022.7 This backlog is associated with a range of factors, including insufficient
IJ staffing; DHS enforcement levels—particularly, increased apprehensions of migrants at the
Southwest border, including those seeking humanitarian protection; and, since 2020, hearing
postponements associated with the COVID-19 pandemic.
As a result of this backlog, some individuals must wait years to have their cases adjudicated. A
range of policy options to address the pending case backlog have been proposed by EOIR and
other executive branch agencies, Congress, immigration attorneys, IJs, and others. These include

1 INS was formerly a DOJ component and the precursor agency to the U.S. Department of Homeland Security (DHS).
2 For information about the pre-1983 history of immigration courts, see EOIR, “Evolution of the U.S. Immigration
Court System: Pre-1983,” at https://www.justice.gov/eoir/evolution-pre-1983.
3 INA §212; 8 U.S.C. §1182.
4 INA §237; 8 U.S.C. §1227.
5 INA §101(b)(4); 8 U.S.C. §1101(b)(4).
6 EOIR, “Current Representation Rates,” Adjudication Statistics, January 19, 2022.
7 EOIR, “Pending Cases, New Cases, and Total Completions,” Adjudication Statistics, January 19, 2022.
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increasing resources for EOIR, particularly to augment IJ hiring and court staffing, increasing IJs’
discretion to manage their caseloads, implementing performance measures and quotas for IJs,
prioritizing particular cases, changing the defensive asylum process, and reorganizing the
immigration courts system to be independent of DOJ and the executive branch.
This report begins by outlining EOIR’s adjudicatory components. It then describes the process for
removal proceedings, which are the most common proceedings in immigration courts. It also
describes bond proceedings for individuals detained during removal proceedings. Next, the report
discusses key policy topics related to removal proceedings, including respondents’ access to legal
representation and in absentia removal orders. The second half of the report focuses on the
backlog of pending cases, factors associated with the backlog, proposed solutions for addressing
it, and related debates.
EOIR’s Adjudicatory Components
EOIR operates under the leadership of its Director, who is appointed by the Attorney General and
reports to the Deputy Attorney General. The agency consists of three adjudicatory bodies: the
Office of the Chief Immigration Judge (OCIJ), the BIA, and the Office of the Chief
Administrative Hearing Officer (OCAHO).
Office of the Chief Immigration Judge (OCIJ)
The first-line adjudication of immigration cases occurs in OCIJ. Within OCIJ, which is headed by
EOIR’s Chief Immigration Judge, IJs adjudicate removal proceedings and other administrative
hearings as outlined in Table 1. As noted above, immigration courts are part of the executive
branch. Consequently, IJs are attorneys appointed by the Attorney General as administrative
judges who “act as the Attorney General’s delegates in the cases that come before them”8—they
are not confirmed by the Senate and do not have lifetime appointments. They are career
employees with no fixed terms.
Table 1. Types of Immigration Court Hearings
Hearing Type
Description
Removal hearings
Proceedings for individuals whom DHS alleges have
violated immigration laws. They determine removability
and eligibility for protection or relief from removal and
are the most common type of immigration court
proceedings. Removal proceedings replaced
deportation and exclusion proceedings on April 1,
1997.
Deportation and exclusion hearings
Proceedings for deportation or exclusion cases from
before April 1, 1997, which may stil be pending in
immigration courts. Procedures are similar to those in
removal proceedings.a
Bond proceedings
Proceedings for those seeking release from detention
upon the payment of bond, or to determine or change
a bond amount.b

8 8 C.F.R. §1003.10.
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Hearing Type
Description
Asylum-only proceedings
Limited proceedings for asylum applicants who are
ineligible for removal proceedings, such as
crewmembers, stowaways, and those who have
entered under the Visa Waiver Program.c
Withholding-only proceedings
Proceedings for those who do not qualify for asylumd
and apply for withholding of removal relief under INA
Section 241(b)(3), which prohibits the removal of an
individual to a country where their life or freedom
would be threatened based on race, religion,
nationality, membership in a particular social group, or
political opinion; or under Article 3 of the United
Nations Convention Against Torture (CAT), which
prevents individuals from being returned to countries
where they would be in danger of being subjected to
torture.
Review cases
Proceedings for the review of DHS asylum officers’
credible fear and reasonable fear decisionse and claimed
status review cases for individuals ordered removed
whose immigration status has not been verified and
who claim to be lawful permanent residents, refugees,
asylees, or U.S. citizens.
Other proceedings
Additional proceedings include those for qualifying for
non-removal Nicaraguan Adjustment, and Central
American Relief Act (NACARA) and continued
detention review cases.f
Source: EOIR, “Executive Office for Immigration Review: An Agency Guide,” fact sheet, December 2017.INA
§240; 8 U.S.C. §1229a.
a. See EOIR Policy Manual, Part II- OCIJ Practice Manual, Chapter 7.2, “Deportation Proceedings and
Exclusion Proceedings”; and CRS Report R45314, Expedited Removal of Aliens: Legal Framework.
b. 8 C.F.R. §1003.19
c. 8 C.F.R. §208.2. For more information about asylum and withholding of removal, see CRS Report R45539,
Immigration: U.S. Asylum Policy. For information about the Visa Waiver Program, see CRS Report RL32221,
Visa Waiver Program.
d. Certain individuals do not qualify for asylum, including individuals who unlawful y reenter the United States
after being removed (reinstatement of removal cases) and aliens convicted of an aggravated felony and
subject to expedited removal under INA Section 238(b). See CRS In Focus IF11736, Reinstatement of
Removal: An Introduction.
e. Credible fear is a screening process for asylum; reasonable fear is a screening for protection under CAT.
f.
Rescission hearings determine whether a respondent’s status as a lawful permanent resident should be
revoked. NACARA hearings determine eligibility for suspension of deportation or special rule cancellation
of removal pursuant to Section 203 of P.L. 105-100. In continued detention review hearings, IJs review DHS
determinations that a respondent should remain in custody because DHS has determined that their release
poses a “special danger” to the public under criteria specified in 8 C.F.R. Section 1241.14(f).
During the last five fiscal years (FY2017-FY2021), immigration courts received an average of
353,761 cases annually, varying from a low of 240,567 (FY2021) to a high of 547,234
(FY2019).9 EOIR’s 578 IJs currently adjudicate cases in 69 civil immigration courts and three
immigration adjudication centers (IACs)10 located in 27 U.S. states, Puerto Rico, and the

9 Includes removal, deportation, exclusions, asylum-only, and withholding-only cases for FY2017-FY2021.
10 Immigration adjudication centers (IACs) are locations at which IJs adjudicate cases solely using video
teleconferencing. As of the cover date of this report, there are three IACs. They are located in Falls Church, VA;
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Northern Mariana Islands (Figure 1). Immigration courts range in size. For example, the New
York–Federal Plaza immigration court has 39 IJs while the Batavia, NY, court has 1 IJ.11 Some
courts are located within DHS detention facilities and other correctional facilities.12
Figure 1. Map of Immigration Courts and Immigrant Adjudication Centers (IACs)

Source: EOIR, “EOIR Immigration Court Listing,” March 3, 2022, at https://www.justice.gov/eoir/eoir-
immigration-court-listing.
Notes: The Sterling, VA, court is scheduled to open in May 2022.
Board of Immigration Appeals (BIA)
The BIA is EOIR’s appellate component and the “highest administrative body for interpreting and
applying immigration laws.”13 It is authorized for 23 Appellate Immigration Judges (known as
BIA or board members), including a Chief Appellate Immigration Judge. All are attorneys
appointed by the Attorney General. The BIA operates out of EOIR’s headquarters in Falls
Church, VA.
Board members review appealed IJ decisions, including decisions on removal cases and
applications for relief from removal, among others (see the “Options for Appeal and Motions to
Reconsider or Reopen” section below).14 The BIA typically conducts paper reviews of proceeding

Richmond, VA; and Forth Worth, TX.
11 EOIR, “Immigration Court Listing,” March 9, 2022, at https://www.justice.gov/eoir/eoir-immigration-court-listing.
12 Under the Institutional Hearing Program—a collaboration between EOIR, the Bureau of Prisons (BOP), and ICE—
inmates serving a criminal sentence who may be removable undergo removal proceedings before an IJ so that their
immigration case may be adjudicated prior to their release from prison. Hearings are held at a number of BOP facilities
throughout the United States. See EOIR, “Institutional Hearing Program,” January 2018.
13 EOIR, EOIR Policy Manual, Part II, Chapter 1.2.
14 For more information on BIA jurisdiction, see EOIR Policy Manual, Part III, Chapter 1.4 and 8 C.F.R. Section
1003.1.
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transcripts and related documents rather than in-person hearings. BIA decisions are binding
unless they are appealed and overruled by a federal court or the Attorney General.15
Office of the Chief Administrative Hearing Officer (OCAHO)
OCAHO is a relatively small EOIR component.16 Unlike OCIJ and the BIA, OCAHO does not
adjudicate removal cases. OCAHO adjudicates cases under provisions of the INA related to
employer sanctions, including unlawful hiring and employment of unauthorized workers and
failure to verify new hires’ identities and work authorization;17 unfair immigration-related
employment practices, including discrimination in hiring or firing or retaliation against an
individual because of their national origin or citizenship status;18 and immigration-related
document fraud.19
OCAHO receives its cases from DHS and DOJ. DHS enforces employer sanctions and
immigration-related document fraud; the Immigrant and Employee Rights Section in DOJ’s Civil
Rights Division enforces unfair immigration-related employment practices. Three OCAHO
Administrative Law Judges, under the supervision of the Chief Administrative Hearing Officer,
review these cases. Parties may file appeals with the U.S. Circuit Court of Appeals.20 OCAHO
case levels are relatively low: from FY2017 through FY2021, OCAHO received an average of 80
cases annually.21
Removal Proceedings in Immigration Courts22
During formal removal proceedings under INA Section 240, IJs make two key determinations: (1)
whether respondents are subject to grounds of inadmissibility or deportability23 and (2) if so,
whether respondents are eligible for forms of relief or protection from removal that would allow
them to remain in the United States (see Table 2).
During proceedings, IJs administer oaths, receive evidence, and examine and cross-examine
respondents and witnesses.24 Respondents have the right to legal representation that they acquire
at their own expense or they may elect to proceed without counsel;25 they are not entitled to court-

15 EOIR, “Board of Immigration Appeals,” December 7, 2020.
16 The Immigration Reform and Control Act of 1986 (P.L. 99-603) established OCAHO, which started hearing cases in
1987.
17 INA §274A; 8 U.S.C. §1324a.
18 INA §274B; 8 U.S.C. §1324b.
19 INA §274C; 8 U.S.C. §1324c.
20 EOIR, “EOIR’s Office of the Chief Administrative Hearing Officer,” fact sheet, July 2017.
21 EOIR, “OCAHO Receipts,” Adjudication Statistics, October 19, 2021.
22 For more information, see CRS In Focus IF11536, Formal Removal Proceedings: An Introduction.
23 INA §240(a); 8 U.S.C. §1229a. Grounds of inadmissibility are enumerated in INA Section 212; 8 U.S.C. §1182.
Grounds of deportability are specified in INA Section 237; 8 U.S.C. §1227.
24 INA §240(b)(1); 8 U.S.C. §1229a(b)(1).
25 Under 8 C.F.R. Section 1291.1, respondents may be represented by attorneys registered to practice with EOIR, law
students and graduates not yet admitted to the bar, reputable individuals of good moral character appearing without
remuneration (e.g., relatives, neighbors, clergy, business associates, or friends), or an accredited representative or
official.
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appointed counsel (see the “Access to Counsel” section below).26 OPLA attorneys represent the
United States government.
At any time, a respondent may request voluntary departure to leave the United States at their own
expense. A respondent who misses a court hearing after being given written notice must be
ordered removed in absentia by an IJ if DHS establishes clear, unequivocal, and convincing
evidence that notice was provided and the respondent is removable (see the “In Absentia Removal
Orders” section below).27
EOIR has designated certain removal cases as priorities for completion:
1. individuals who are detained or in federal custody (see the “Detention and Bond
Proceedings” section below), including juveniles in the custody of the U.S.
Department of Health and Human Services (HHS);
2. cases subject to a statutory or regulatory deadline; and
3. cases subject to a federal court-ordered deadline.28
Absent “exceptional circumstances,” the INA mandates that EOIR adjudicate asylum applications
within 180 days of filing.29
DHS Components and Notice to Appear Issuances
Removal proceedings begin when a DHS component—ICE, Customs and Border Protection
(CBP), or U.S. Citizenship and Immigration Services (USCIS)—issues a Notice to Appear
(NTA), Form I-862, to a noncitizen, charging them with an immigration violation, and files it
with EOIR.
What is an NTA?
A Notice to Appear (NTA), Form I-862, is a charging document that DHS serves an individual, instructing them to
appear before an IJ, and files with EOIR. An NTA issuance initiates the removals process. Under INA Section 239,
an NTA must contain the fol owing information:

the nature of the proceedings—whether the respondent is being charged as (1) an “arriving alien” who
attempted to enter the United States and was not admitted (includes applicants for admission coming or
attempting to come into the United States at a port of entry [POE], those seeking transit through the United
States at a POE, and those interdicted in international or U.S. waters and brought into the United States),30
(2) an individual present in the United States who has not been admitted or paroled, or (3) an individual who
has been admitted to the United States and is removable;

legal authority for the proceedings;

the acts or conduct alleged to be in violation of law;

DHS’s charges against the respondent, including the statutory provisions alleged to have been violated;

the respondent’s right to legal representation and a period of time to secure counsel;

instructions for the respondent to provide a written record of address and telephone number where they
may be contacted regarding the proceedings;

26 INA §240(b)(4)(A); 8 U.S.C. §1229a(b)(4)(A).
27 INA §240(b)(5); 8 U.S.C. §1229a(b)(5).
28 James R. McHenry III, EOIR Director, “Case Priorities and Immigration Court Performance Measures,”
memorandum, January 17, 2018.
29 INA §208(d)(5)(A)(iii); 8 U.S.C. §1158(d)(5)(A)(iii).
30 Includes those paroled under INA Section 212(d)(5); see 8 C.F.R. §1.2.
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
the time and place of the proceedings; and

consequences for failure to appear at these proceedings under INA Section 240(b)(5).

In addition to the NTA, the respondent wil typically also be served a separate hearing notice, which contains
information about the time and location of the hearing.
Any individual who is not a U.S. citizen, including those with lawful status,31 may be issued an
NTA based on grounds of inadmissibility or deportability. At ports of entry (POEs), noncitizens
who seek admission may be issued an NTA if, upon inspection by a CBP Office of Field
Operations (OFO) officer, they are determined to be inadmissible. Between POEs, U.S. Border
Patrol (USBP) agents are responsible for apprehending noncitizens who enter the United States
without inspection. CBP officers and agents have discretion over whether to place apprehended
migrants into expedited removal proceedings or to issue an NTA and refer them to an IJ for
formal removal proceedings.32 Individuals may also be permitted to return voluntarily to their
home country after being inspected at a POE and deemed inadmissible or after being apprehended
between POEs.
Those placed in expedited removal may be removed by DHS without proceedings before an IJ.
However, individuals subject to expedited removal who express an intent to apply for asylum or a
fear of persecution if they are returned to their countries may have their claim reviewed by a
USCIS asylum officer. Individuals who receive a negative credible fear determination are subject
to expedited removal. They may request that an IJ review the determination. Currently, those
determined to have a credible fear of persecution33 are placed in formal removal proceedings to
pursue applications for relief from removal before an IJ.34 However, under an interim final
regulation, beginning May 31, 2022, initial adjudications of relief applications for those placed in
expedited removal will be conducted by USCIS asylum officers, rather than IJs (see the
“Proposals to Change the Defensive Asylum Process” section below).
In the interior of the country, ICE’s Enforcement and Removal Operations (ERO) conducts
administrative arrests and detains noncitizens who are unlawfully present or are lawfully present
and subject to removal. During this process, they may be issued an NTA.35
Individuals may also be placed in removal proceedings by USCIS, which processes applications
and petitions for immigration benefits including the ability to reside in the United States
permanently, gain U.S. work authorization, and naturalize as a U.S. citizen. USCIS issues NTAs
for applicants determined to be inadmissible or removable under circumstances required by
statute or regulation. These include termination of conditional permanent resident status, denials

31 Noncitizens who are lawfully present may be deportable based on a number of criteria enumerated in INA Section
237, including violating one’s status or condition of entry, committing certain criminal offenses, national security
violations, becoming a “public charge” within five years of entry, falsification of documents, and unlawful voting.
32 INA §235(b)(1); 8 U.S.C. §1225(b)(1). For more information, see CRS Report R46755, The Law of Asylum
Procedure at the Border: Statutes and Agency Implementation; and CRS In Focus IF11357, Expedited Removal of
Aliens: An Introduction. CBP officers may also grant port-of-entry parole in certain situations; see CRS Report
R46570, Immigration Parole.
33 The individual must establish a “significant possibility” that they could establish before an IJ persecution or a well-
founded fear of persecution or harm on account of race, religion, nationality, membership in a particular social group,
or political opinion.
34 See CRS In Focus IF11357, Expedited Removal of Aliens: An Introduction.
35 For more information on interior enforcement, see CRS Legal Sidebar LSB10362, Immigration Arrests in the
Interior of the United States: A Primer.
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of petitions to remove conditions of residence, and termination of refugee or asylee status, among
others. USCIS also issues NTAs in fraud cases with a statement of findings substantiating fraud
as well as naturalization cases for deportable individuals. In other situations, such as “egregious
public safety” cases, USCIS refers cases to ICE for possible NTA issuance.36
Master Calendar Hearing
After DHS files an NTA, the court schedules an initial master calendar hearing, during which the
IJ explains the respondent’s rights, the charges against them, and the nature of the proceedings;
verifies the respondent’s contact information; and provides information about legal
representation, including a list of free and low-cost legal services. For some cases, there may be
multiple master calendar hearings.
At the master calendar hearing, the respondent must admit to or deny the factual allegations and
charges under the law outlined in the NTA and may state which application(s) for relief from
removal they intend to file (see Table 2). The court may provide an interpreter for the respondent
as necessary, at government expense.37 Those without counsel may request a continuance of the
hearing to have an opportunity to obtain representation at their own expense. Respondents may
also waive their right to counsel. The OPLA attorney must provide DHS’s position on legal and
factual issues, file documents supporting charges on the NTA, and designate a country of removal
for the respondent.38 The IJ schedules filing dates for applications and written documents. For
non-detained respondents with counsel, master calendar hearing procedures may be handled
entirely in writing and do not require an in-person hearing.39
Table 2. Common Types of Protection and Relief from Removal
Form of Protection or Relief
Description
Asyluma
Asylum may be granted to a respondent who is unable or unwil ing to return
to their country of nationality because of persecution or a well-founded fear
of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion. Those granted asylum, and their
spouses and children, are permitted to remain in the United States, apply for
work authorization, and adjust to lawful permanent resident (LPR) status
after one year of physical presence in the United States.
Withholding of Removal
Those who do not qualify for asylum may apply for withholding of removal
under INA Section 241(b)(3). Withholding of removal carries a higher
standard of proof than asylum and prohibits the removal of an individual to a
country where their life or freedom would be threatened on account of a
protected ground, but it allows possible removal to a third country. Unlike
asylum, withholding of removal applies only to the applicant (not their family
members) and does not lead to LPR status.

36 USCIS issued new guidance in 2018 that expanded the circumstances under which USCIS issued NTAs; however,
that guidance was rescinded in January 2021 and the agency reverted to 2011 guidance. See USCIS, “Revised
Guidance for the Referral of Cases and Issuances of Notices to Appear (NTAs) in Cases Involving Inadmissible and
Removable Aliens,” policy memorandum, November 7, 2011.
37 EOIR, EOIR Policy Manual, Part II, Chapter 4.11, “Interpreters.”
38 EOIR, EOIR Policy Manual, Part II, Chapter 4.15, “Master Calendar Hearing.”
39 Representation must be filed via Form EOIR-28 at least 15 days before a master calendar hearing; otherwise, the
representative and respondent must appear at the scheduled hearing. See Tracy Short, EOIR Chief Immigration Judge,
“Revised Case Flow Processing Before the Immigration Courts,” PM 21-18, April 2, 2021.
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Form of Protection or Relief
Description
Convention Against Torture
Article 3 of the United Nations Convention Against Torture and Other
(CAT)
Cruel, Inhuman or Degrading Treatment or Punishment protects individuals
from return to countries where it is more likely than not that they would be
tortured (non-refoulement). Respondents may qualify for withholding or
deferral of removal under the convention.
Cancellation of Removal
Discretionary relief under INA Section 240A is available to (1) LPRs with at
least five years in LPR status and seven years of continuous residence after
being admitted in any status, who have not been convicted of an aggravated
felony and (2) non-LPRs who have been continuously physically present in
the United States for at least 10 years, have been persons of good moral
character during the statutory period,b have not been convicted of certain
enumerated criminal offenses, and whose removal would result in
exceptional and extremely unusual hardship to a U.S. citizen or LPR parent,
spouse, or child. Non-LPRs granted cancellation of removal may adjust to
LPR status.c
Adjustment of Status
Respondents in removal proceedings may adjust status if they have been
inspected and admitted or paroled into the United States, are deemed
admissible, and have a visa number or priority date immediately available.
Most commonly, adjustment of status is based on a qualifying relationship
with a U.S. citizen or LPR family member under INA 245(a).
Voluntary Departure
A grant of voluntary departure allows respondents to leave the United
States, at their own expense, within a prescribed timeframe. Respondents
who request it give up their rights to apply for other forms of relief and to
appeal a removal decision.
Termination
Proceedings may be terminated under a joint agreement between the parties
or if an IJ finds that a respondent is not removable or is eligible for
citizenship. Termination does not exempt the respondent from future
proceedings under a new charging document and does not confer any
immigration status.
Source: EOIR, “Executive Office for Immigration Review: An Agency Guide,” December 2017, at
https://www.justice.gov/eoir/page/file/eoir_an_agency_guide/download.
a. There are two types of asylum. Defensive asylum refers to asylum applied for during formal removal
proceedings as a form of defense against removal. Defensive asylum applications are adjudicated by EOIR.
Affirmative asylum refers to applications from individuals physically present in the United States who have not
been placed in removal proceedings. Affirmative asylum applications are adjudicated by USCIS. For more
information, see CRS Report R45539, Immigration: U.S. Asylum Policy.
b. As defined in INA Section 101(f).
c. The number of non-LPRs who can receive cancellation of removal is capped at 4,000 annually (INA
§240A(e)). There is no cap for LPRs.
Merits Hearing and IJ Decision
In the next stage of removal proceedings, the IJ schedules a merits hearing (or individual calendar
hearing), an evidentiary hearing that considers challenges to removability and the respondent’s
application(s) for relief. During the merits hearing, parties may present testimony, evidence, and
witnesses. The respondent and any witnesses may be examined and cross-examined, respectively,
by their counsel (if applicable) and DHS counsel, as well as questioned by the IJ. Based on the
testimony and evidence presented, the IJ issues a decision on the respondent’s removability, and
if applicable, their application for relief.
If the IJ determines that the respondent is not removable, the case is terminated. If the respondent
is determined to be removable, the IJ will decide whether they are eligible for relief that allows
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them to remain in the United States or ineligible for relief or protection, in which case the IJ will
order them to be removed. The decision may be rendered orally at the hearing’s conclusion or
issued in writing at a later date.40
The most commonly issued decision is removal. From FY2017 through FY2021, almost two-
thirds of outcomes at the initial case completion stage were removal orders (Figure 2).41
Outcomes were relatively consistent across fiscal years with the exception of FY2021, when
terminations (42,766) exceeded removal orders (35,577).42 IJ decisions are final unless they are
appealed by either party to the BIA or if the IJ asks the BIA to review, or certify, the decision.
Figure 2. Immigration Judge Decisions (Initial Case Completions), FY2017-FY2021

Source: FY2019-FY2021: EOIR, “Decision Outcomes,” Adjudication Statistics; FY2017-FY2018: EOIR, Statistics
Yearbook FY2018.
Note: Initial case completions are an IJ’s first dispositive decision.
IJs may also temporarily remove cases from their active dockets through administrative closure.43
Administrative closure allows respondents the opportunity to have their applications for
immigration relief resolved by other agencies, such as USCIS (see the “Docket Management”
section below).

40 EOIR, EOIR Policy Manual, Part II, Chapter 4.16, “Individual Calendar Hearing.”
41 An initial case completion is an IJ’s first dispositive decision. Most commonly, cases are completed by removal
orders, relief grants, voluntary departure, or termination.
42 EOIR, “Decision Outcomes,” Adjudication Statistics, January 19, 2022.
43 Administrative closure is not considered a completion.
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Options for Appeal and Motions to Reconsider or Reopen
Parties to a removal case have 30 days from the date of an IJ’s decision to file an appeal, at which
point jurisdiction of the case transfers from the IJ to the BIA. The BIA typically conducts paper
reviews of cases, which do not require respondents to appear in court. If requested by a party, it
may allow oral arguments to be presented to the panel.
If the BIA rules against the respondent (i.e., affirms an IJ’s order of removal), the respondent may
file a petition for judicial review with a federal circuit court of appeals within 30 days.44 In
federal circuit courts, attorneys with DOJ’s Office of Immigration Litigation represent the U.S.
government. Under authority known as certification, the Attorney General may also review and
overrule BIA decisions.
Either party may also file a motion to reconsider or motion to reopen an IJ’s decision (if the case
has not been appealed to the BIA) or a BIA decision. Motions to reconsider or reopen are
generally referred to as MTRs. A motion to reconsider is based on errors of law or fact in the
previous order and must be filed within 30 days from the date of a final removal order. A motion
to reopen is based on new facts that must be proven at a hearing and supported by evidence; it
must be filed within 90 days of the removal order.45 Motions to reopen are more common than
motions to reconsider. During the last five fiscal years (FY2017-FY2021), immigration courts
received 82,177 motions to reopen and 6,685 motions to reconsider.46
Detention and Bond Proceedings
Some respondents are detained by DHS during their removal proceedings.47 DHS generally has
responsibility for apprehension and detention, including ensuring that detained respondents
appear at all hearings.
In certain cases, detention is mandatory: respondents convicted of specified criminal offenses or
terrorist activity enumerated in the INA must be detained during removal proceedings.48 These
individuals do not have the right to a bond hearing and may be released only under special
circumstances, including if their release is necessary to protect a witness, a potential witness, or a
person cooperating with an investigation into major criminal activity; and if the individual will
not pose a safety risk and is likely to appear for their proceedings.
In cases where detention is discretionary, DHS may choose to continue detaining the respondent
or release them on bond or on their own recognizance subject to certain conditions (conditional
parole). Certain individuals may be subject to enhanced monitoring under ICE’s Alternatives to
Detention program as a condition of their release.49
IJs may review custody determinations of detained respondents upon their request during bond
proceedings.50 During such proceedings, the IJ determines whether the respondent is eligible for

44 INA §242; 8 U.S.C. §1252.
45 INA §240(c)(6-7); 8 U.S.C. §1229a(c)(6-7).
46 EOIR, “Motions,” Adjudication Statistics, October 19, 2021.
47 For more information about immigrant detention, see CRS Report R45915, Immigration Detention: A Legal
Overview.
48 INA §236(c); 8 U.S.C. §1226(c).
49 See CRS Report R45804, Immigration: Alternatives to Detention (ATD) Programs.
50 8 C.F.R. §1003.19.
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bond, their release would pose a danger to property or persons, they are a national security threat,
and they are likely to appear for future hearings. The IJ issues a decision based on information
presented by both parties. Either party may appeal the bond decision to the BIA.51
From FY2012 to FY2021, the annual number of bond hearings ranged from 75,883 (FY2019) to
22,261 (FY2021), as shown in Figure 3. During that period, IJs granted bond in about 48% of
cases, with grant rates ranging from a high of 56% (FY2016) to a low of 31% (FY2021).
Figure 3. Bond Hearing Outcomes, FY2012-FY2021

Source: Transactional Records Access Clearinghouse (TRAC), “Immigration Court Bond Hearings and Related
Case Decisions,” data tool, at https://trac.syr.edu/phptools/immigration/bond/.
Notes: TRAC analyzes data obtained from EOIR using the Freedom of Information Act.
As mentioned previously, detained cases are an EOIR priority for completion. Over the past 10
fiscal years, the median pending time for detained cases has ranged from a low of 58 days
(FY2021) to a high of 216 days (FY2020).52 According to EOIR, in FY2021, 91% of DHS
detained cases were completed within six months.53
Removal Proceedings: Selected Policy Issues
In addition to the pending cases backlog and its associated factors (discussed in depth below),
additional policy issues related to removal proceedings may be of interest to Congress, including
access to representation and the rate at which respondents appear for their hearings.

51 EOIR, EOIR Policy Manual, Part II, Chapter 9.3, “Bond Proceedings,” at https://www.justice.gov/eoir/eoir-policy-
manual/9/3.
52 Excludes mental competency/Franco litigation, Institutional Hearing Program, Migrant Protection Protocol, HHS-
detained unaccompanied alien child, and juvenile cases. EOIR, “Median Times for Pending Detained Cases,”
Adjudication Statistics, October 19, 2021.
53 EOIR, “Percentage of DHS-Detained Cases Completed within Six Months,” Adjudication Statistics January 19,
2022.
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Access to Counsel
According to EOIR, 53% of respondents with pending cases had legal representation as of the
first quarter of FY2022.54 Under INA Section 240(b)(4), respondents in removal proceedings
have the right to counsel but not at government expense. EOIR’s Office of Legal Access
Programs (OLAP) houses programs that provide legal orientation and facilitate access to
representation for certain populations. The Vera Institute of Justice (Vera), a national nonprofit
organization, and a network of immigrant legal service providers administer several of these
programs.
OLAP programs include the Legal Orientation Program (LOP), Legal Orientation Program for
Custodians of Unaccompanied Alien Children (LOPC), and the National Qualified Representative
Program (NRQP). LOP provides legal orientations to unrepresented, detained respondents. LOPC
provides legal orientations to the caregivers of unaccompanied children in removal proceedings.
NQRP provides legal representation to detained respondents with mental health disorders who are
determined by an IJ or the BIA “to be incompetent to represent themselves in immigration
proceedings.”55 OLAP also maintains a list of pro bono legal service providers.
Like adults, juveniles have the right to representation but generally do not receive court-appointed
counsel.56 However, the William Wilberforce Trafficking Victims Protection Reauthorization Act
(TVPRA) requires HHS, to the greatest extent possible, to ensure that all unaccompanied
juveniles in its custody have counsel to represent them in proceedings.57 Since 2005, HHS’s
Office of Refugee Resettlement, which has responsibility for the care of unaccompanied children
during their removal proceedings, has funded pro bono legal services (but not direct
representation) for children through a network of providers coordinated by Vera.
In September 2021, EOIR announced a new “Counsel for Children Initiative,” to provide
representation to unaccompanied children “in the eight immigration courts in which Government-
funded counsel for children will have the greatest impact.”58 According to EOIR, 54% of
unaccompanied children with pending cases had counsel as of the first quarter of FY2022.59
A 2015 study of access to counsel in immigration courts, which analyzed data from more than 1.2
million removal cases from 2007 through 2012, showed that respondents with counsel were more
likely to have their cases terminated or be granted relief from removal (case success). The odds of
case success for respondents with counsel compared with those without it were particularly high
among detained respondents, who were 10.5 times more likely to succeed in their case (never-
detained respondents were 3.5 times more likely to succeed).60
The study’s authors also found that respondents with counsel bring fewer unmeritorious claims
and were more likely than those without representation to be released from detention and to

54 Includes removal, deportation, exclusion, and asylum-only proceedings. EOIR, “Current Representation Rates,”
Adjudication Statistics, January 19, 2022.
55 EOIR Policy Manual, Part V, Chapter 1.7, “National Qualified Representative Program.”
56 For more information on unaccompanied children, see CRS Report R43599, Unaccompanied Alien Children: An
Overview.
57 P.L. 110-457, §235(c)(5).
58 EOIR, “EOIR Announces ‘Access EOIR’ Initiative,” September 28, 2021. The eight courts listed are Atlanta,
Houston, Los Angeles, New York, San Diego, San Francisco, Seattle, and Portland.
59 EOIR, “Current Representation Rates,” Adjudication Statistics, January 19, 2022.
60 Ingrid V. Eagly and Steven Shafer, “A National Study of Access to Counsel in Immigration Court,” University of
Pennsylvania Law Review, vol. 164, no. 1, December 2015.
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appear at their hearings. The study identified barriers to representation, including being detained
and living in a rural area or small city. Representation also varied by respondents’ national
origins, which the authors suggest may be related to differences in economic status or social
networks.61
Some groups have widely supported greater access to legal representation in removal
proceedings.62 Some lawmakers have also advocated to expand federal programs for
representation and introduced legislation to provide government-funded access to counsel for
certain individuals in removal proceedings, including unaccompanied children, those in detention,
people with disabilities, and those with low incomes.63 Others argue that these groups should
have access to counsel but not at government expense. Arguments against government-funded
counsel include that U.S. citizens do not receive government-appointed representation in civil
matters and providing counsel for noncitizens would be a disproportionate benefit for
noncitizens.64
Some states and localities have established legal services programs that provide government-
funded counsel for certain respondents, such as those in detention. Some refer to this movement
as universal representation.65 Some legal advocates have also called for greater funding for DOJ’s
Recognition and Accreditation Program to increase access to qualified, non-attorney Accredited
Representatives,66 who are permitted by federal regulation to represent individuals in removal
proceedings.67 Accredited Representatives must provide legal services through DOJ-designated
nonprofit organizations (Recognized Organizations).68

61 Ibid.
62 For example, see Karen Berberich et al., “Advancing Universal Representation, Module 1: The Case for Universal
Representation,” Center for Popular Democracy, National Immigration Law Center, and Vera Institute of Justice,
December 2018; American Immigration Lawyers Association, “AILA and Partners Urge Congress to Provide Funding
for Appointed Counsel for Individuals Facing Removal,” November 17, 2021; National Association of Immigration
Judges, “NAIJ Position on Legal Representation in Immigration Court,” May 4, 2021.
63 For example, in the 117th Congress, see S. 901 and H.R. 530; in the 116th Congress, see S. 662 and H.R. 4155; and in
the 115th Congress, see S. 3263. See also, Letter from Senators Kirsten Gillibrand, Edward J. Markey, Richard
Blumenthal, Jeffrey A. Merkley, Kyrsten Sinema, Cory A. Booker, Alex Padilla, Bernard Sanders, Robert Menendez,
Ron Wyden, Tammy Baldwin, Elizabeth Warren, Amy Klobuchar, Mark Kelly, Maria Cantwell, Thomas R. Carper,
Tammy Duckworth, Tina Smith, Sherrod Brown, and Raphael Warnock to Senator Jeanne Shaheen, Chair, and Senator
Jerry Moran, Ranking Member, Senate Subcommittee on Appropriations for Commerce, Justice, Science, and Related
Agencies, May 6, 2021.
64 Lora Ries, “U.S. Taxpayers Should Not Pay for Legal Counsel for Illegal Aliens,” The Heritage Foundation, March
24, 2020.
65 For a map of state and local publicly funded defense programs, see Vera Institute, “SAFE Initiative,” at
https://www.vera.org/initiatives/safe-initiative.
66 Karen Sullivan, “CLINIC Policy Brief: The Severely Under-Resources R&A Program is an Essential Tool to Meet
Growing Needs for Affordable Immigration Legal Services,” Catholic Legal Immigration Network, Inc., September 29,
2021.
67 8 C.F.R. §1292.1(a)(4).
68 EOIR, “Recognition & Accreditation (R&A) Program,” April 14, 2021, at https://www.justice.gov/eoir/recognition-
and-accreditation-program.
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Others have opposed state and local funding for counsel, for example, arguing that it places the
burden on those governments when immigration law is a federal issue.69 Some have raised
objections to funding counsel for certain noncitizens, such as those with a criminal history.70
In Absentia Removal Orders71
Respondents in formal removal proceedings who are not detained or who have been released
from detention are generally permitted to wait in the United States for their court hearings.
During this time, they are required to check in regularly with ICE and may be monitored under an
Alternatives to Detention Program.72 Empirical data show that a majority of respondents appear
for their removal proceedings and suggest that failure to appear for court is associated with
factors like access to counsel.73 Nevertheless, because some individuals must wait months or
years to have their cases adjudicated, some lawmakers and other observers have expressed
concerns that these respondents will fail to appear for court hearings and abscond.74 As such,
appearance rates for removal proceedings have been the subject of considerable discussion and
debate.
If respondents fail to attend any of their hearings, INA Section 240(b)(5) requires IJs to order a
respondent removed in absentia (i.e., in the respondent’s absence). In such cases, DHS must
present “clear, unequivocal, and convincing evidence” that the respondent received written notice
of the hearing and is removable. Respondents may file a motion to reopen requesting to rescind
an in absentia removal order if they can demonstrate that their failure to appear was due to
exceptional circumstances,75 not having received proper notice, or being held in custody, and the
failure to appear was through no fault of their own.76 If the motion is based on exceptional
circumstances, it must be filed within 180 days from the issuance of the in absentia order.
Otherwise, it may be filed at any time.77
EOIR data on in absentia removal orders issued have been used to determine an in absentia rate,
or the rate at which noncitizens fail to attend their removal proceedings. This rate has been

69 Leslie Berestein Rojas, “$3 Million to Defend Immigrants Fighting Deportation Approved by LA County,” 89.3
KPCC, December 20, 2016; Conor McCormick-Cavanagh, “Colorado House Committee Approves Immigrant Legal
Defense Fund,” Westworld, March 31, 2021.
70 Maura Ewing, “Should Taxpayers Sponsor Attorneys for Undocumented Immigrants?”, The Atlantic, May 4, 2017.
71 For more information about the in absentia rate, see CRS In Focus IF11892, At What Rate Do Noncitizens Appear for
Their Removal Hearings? Measuring In Absentia Removal Order Rates.
72 Except for persons subject to the Migrant Protection Protocols, first implemented in 2019; see the “Accelerated
Dockets” section below. For more information about Alternatives to Detention, see CRS Report R45804, Immigration:
Alternatives to Detention (ATD) Programs.
73 Ingrid V. Eagly and Steven Shafer, “Measuring In Absentia Removal in Immigration Court,” University of
Pennsylvania Law Review, vol. 168, no. 4 (March 2020) (hereinafter, “Eagly and Shafer 2020”); TRAC, “Most
Released Families Attend Immigration Court Hearings,” June 18, 2019.
74 For example, see U.S. Senate Committee on Homeland Security & Governmental Affairs, “On Senate Floor,
Portman Discusses Recent Trip to U.S. Southern Border to See Migrant Crisis Firsthand,” Minority Media, March 22,
2021; Tom Davis, “Congressman Hern Visits Bartlesville, Talks Immigration Bill and Flood Remedy,” Bartlesville
Radio, news, August 3, 2019; PBS NewsHour, “Sen. Flake: Obama’s Proposal Would Allow Migrant Children to
‘Disappear into the Population’,” July 8, 2014.
75 Under INA Section 240(e)(1), exceptional circumstances may refer to “battery or extreme cruelty to the alien or any
child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the
alien, but not including less compelling circumstances.”
76 EOIR, EOIR Policy Manual, Part II, Chapter 5.9, “Motions to Reopen In Absentia Orders.”
77 8 C.F.R. §1003.23(b)(4)(iii).
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debated; differences in the reported percentages have primarily been due to different methods of
calculation.78
EOIR calculates the in absentia rate by dividing the number of in absentia removal orders issued
at the initial case completion stage in a fiscal year by the total number of initial IJ decisions
during that same fiscal year.79 During the last 10 fiscal years (FY2012-FY2021), EOIR’s in
absentia rate has ranged from a high of 49.5% in FY2020 to a low of 9.8% in FY2021. The
average annual in absentia rate was 34.4%.80 The FY2021 in absentia rate was substantially lower
than the rate in previous years, potentially reflecting impacts from the COVID-19 pandemic,
which resulted in many hearing postponements and a possible selection effect among those who
did have hearings.
Some observers claim that EOIR’s method overstates the prevalence of in absentia orders. Critics
of EOIR’s methodology have argued that it measures only the percentage of cases that were
completed because a respondent failed to appear for a hearing. They contend it does not account
for individuals whose cases have not yet been completed—a process that may take years, given
the backlog of pending cases—but have attended their hearings in the meantime.81
An alternative approach calculates the in absentia rate as the number of in absentia removal
orders divided by all IJ decisions, plus other IJ completions (such as administrative closures), plus
pending cases. Using this method, a 2020 study published in the University of Pennsylvania Law
Review found an in absentia rate of 17% among non-detained respondents over the period of
FY2008 through FY2018.82 Using EOIR’s method over the same period yielded an in absentia
rate of 34%. Some observers have been critical of the alternative approach, arguing that it
understates the rate.83
The 2020 study also found that whether or not an in absentia order was issued depended heavily
on whether a respondent had counsel and was applying for relief from removal.84 The authors
found that respondents with counsel “rarely received in absentia removal orders”85 and that most
cases in which an in absentia order was issued were unrepresented (85%) by counsel. With regard
to applications for relief, the authors found that 95% of respondents with completed or pending
applications for relief attended all their hearings. They also noted disparities in in absentia
removal orders across courts of jurisdiction.

78 For example, see Salvador Rizzo, “How Many Migrants Show Up for Immigration Court Hearings,” The Washington
Post, June 26, 2019; Aaron Reichlin-Melnick, “Trump’s Bad Immigration Math,” The Wall Street Journal (opinion),
July 30, 2019; Andrew R. Arthur, “Report Understates No-Show Rates in Immigration Court,” Center for Immigration
Studies, February 9, 2021 (hereinafter, “Arthur 2021”).
79 For example, see EOIR, Statistics Yearbook FY2017, p. 33; and EOIR, “Comparison of In Absentia Rates,”
Adjudication Statistics, October 19, 2021. Data are for I-862 removal, deportation, and exclusion cases.
80 EOIR, “Comparison of In Absentia Rates,” Adjudication Statistics, October 19, 2021.
81 Aaron Reichlin-Melnick, Policy Counsel, American Immigration Council, “This Week in Immigration,” podcast by
Bipartisan Policy Center, Episode 91, April 5, 2021.
82 Eagly and Shafer 2020.
83 Arthur 2021.
84 Eagly and Shafer 2020.
85 Ibid., p. 859.
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Pending Cases Backlog
The number of pending cases in immigration courts exceeded 1 million for the first time in
FY2019 and has since continued to increase. According to EOIR, 1,405,386 million cases were
pending in immigration courts at the end of FY2021. In the first quarter of FY2022, pending
cases increased to more than 1.5 million.86 Independent analysts at the Transactional Records
Access Clearinghouse (TRAC), a research center at Syracuse University, placed the backlog at
approximately 1.6 million as of December 2021.87
Since FY2002, the annual numbers of cases received and completed in immigration courts have
remained relatively consistent (with the exception of FY2019) compared with the number of
pending cases (Figure 4). Since FY2006, the number of pending cases has increased every year.
Figure 4. Initial Cases Received, Completed, and Pending (Backlog),
FY2002-FY2022(Q1)

Source: Cases received and completed: EOIR, “New Cases and Total Completions – Historical,” Adjudication
Statistics, October 19, 2021. Cases pending (FY2008-FY2022): EOIR, “Pending Cases, New Cases, and Total
Completions,” Adjudication Statistics, January 19, 2022; cases pending (FY2001-FY2007): TRAC, “Immigration
Court Backlog Tool,” at https://trac.syr.edu/phptools/immigration/court_backlog/.
Note: *FY2022 current through first quarter only.
The BIA’s pending appeals caseload has also increased: after declining consistently from FY2011
(30,335, not pictured) to FY2016 (13,970), the number of pending appeals increased through

86 EOIR, “Pending Cases, New Cases, and Total Completions,” Adjudication Statistics, January 19, 2022.
87 TRAC, “Immigration Court Backlog Tool,” at https://trac.syr.edu/phptools/immigration/court_backlog/.
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FY2020, reflecting increases in the number of appeals filed in recent years (see Figure 5 below).
Pending appeals reached 91,973 in the first quarter of FY2022.88
Figure 5. BIA Case Appeals Filed, Completed, and Pending, FY2012-FY2021

Source: EOIR, “Case Appeals Filed, Completed, and Pending,” Adjudication Statistics, January 19, 2022.
OCIJ’s completions as a percentage of cases received in a given fiscal year have generally
declined since FY2007, which suggests that IJs have been increasingly unable to adjudicate the
volume of cases they receive from DHS (Figure 6). From FY2001 through FY2012, completed
cases averaged about 98% of cases received each fiscal year. After FY2012, however, the
proportion dropped, with completed cases averaging about 62% of cases received each year from
FY2013 through FY2021. This trend has occurred even as the number of IJs has increased
substantially in recent years (see the “Hiring More Immigration Judges and Court Staff” section
below).

88 EOIR, “All Appeals Filed, Completed, and Pending,” Adjudication Statistics, January 19, 2022.
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Figure 6. OCIJ Case Completions as a Percentage of Case Receipts by Fiscal Year,
FY2002-FY2021

Source: EOIR, “New Cases and Total Completions – Historical,” Adjudication Statistics, January 19, 2022.
Note: Percentages exceed 100% in situations where the number of case completions is greater than the number
of cases received in a given fiscal year.
TRAC estimated that the average pending time for removal cases—that is, the length of time
respondents have already been waiting to have their cases adjudicated—was 933 days as of
October 2021.89 The number of days pending varies by court. Courts that adjudicate primarily
detained cases have much shorter pending times.
The backlog has become a considerable concern for some lawmakers and immigration court
stakeholders, raising questions about due process for respondents and their counsel,90 IJ and
immigration court staff workloads,91 and the length of time removable respondents may spend in
the country before being deported. Some observers question whether the backlog and the length
of time respondents might spend in the United States waiting to have their cases adjudicated
encourages unauthorized migration and overstays.
Factors Associated with the Backlog
A number of factors are associated with the growth in pending cases, including immigration
enforcement in the interior and at the border leading to increased issuances of NTAs, higher
numbers of asylum-seekers at the U.S.-Mexico border, and external factors causing court
closures—particularly pandemic-related hearing postponements. At the same time, IJ staffing has
been widely regarded to be inadequate to handle the current caseload brought on by these factors.

89 TRAC, “Immigration Court Backlog Tool,” at https://trac.syr.edu/phptools/immigration/court_backlog/.
90 American Bar Association Commission on Immigration, Reforming the Immigration System: Proposals to Promote
Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases, March 2019
(hereinafter, “ABA 2019”).
91 Dana Leigh Marks, “Opinion: I’m an Immigration Judge. Here’s How We Can Fix Our Courts,” The Washington
Post, April 12, 2019.
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Some observers point to funding for immigration enforcement agencies as being
disproportionately high relative to funding for immigration courts.
Funding Disparities Between EOIR and DHS Enforcement Agencies
Some observers have argued that funding disparities between EOIR and DHS enforcement
agencies have exacerbated the backlog.92 They contend that DHS’s relatively higher levels of
funding for immigration enforcement far exceed courts’ resources to adjudicate those cases.
In recent years, Congress has appropriated increasingly higher levels of funding for EOIR.
During the last 10 fiscal years, EOIR’s appropriations increased approximately 150% (from $304
million in FY2013 to $760 million in FY2022; see Table 3). Over the same 10-year period, ICE’s
budget increased 47% and CBP’s increased 23%.93
In FY2021, funding for ICE and CBP, the primary enforcement components within DHS, totaled
approximately $8 billion and $16 billion, respectively.94 EOIR’s FY2021 appropriations were
$734 million (Table 3). However, it is difficult to meaningfully compare funding for ICE and
CBP with EOIR’s appropriations given differences in the scopes and sizes of those agencies.
Table 3. EOIR Annual Appropriations
FY2013-FY2022
Fiscal Year
Enacted
FY2013
$304,124,000
FY2014
$312,200,000
FY2015
$347,200,000
FY2016
$422,295,000
FY2017
$440,000,000
FY2018
$504,500,000
FY2019
$563,407,000
FY2020
$672,966,000
FY2021
$734,000,000
FY2022
$760,000,000
Source: FY2022: Consolidated Appropriations Act, 2022 (P.L. 117-103), Division B, Title II. FY2015-FY2021:
DOJ, EOIR, Budget and Performance Summary, multiple years, at https://www.justice.gov/doj/budget-and-
performance. FY2013-FY2014: DOJ, Budget and Performance Summary, Justice Management Division Archive, at
https://www.justice.gov/archives/jmd/justice-management-division-archive.

92 Representative Zoe Lofgren, “Lofgren Statement at EOIR Oversight Hearing,” press release, November 1, 2017;
American Immigration Council, Empty Benches: Underfunding of Immigration Courts Undermines Justice, May 2015;
Marissa Esthimer, Crisis in the Courts: Is the Backlogged U.S. Immigration Court System at Its Breaking Point?,
Migration Policy Institute, Migration Information Source, October 3, 2019.
93 Based on total enacted funding for FY2013 as reported in DHS, Budget-in-Brief: Fiscal Year 2015 and for FY2022
as reported in Consolidated Appropriations Act, 2022 (P.L. 117-103), Division B, Title II.
94 DHS, Budget-in-Brief: Fiscal Year 2022.
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IJ Staffing and Productivity
EOIR’s most commonly identified resource shortage is its IJ corps, which has recently grown, but
had previously fluctuated. During a DOJ-wide hiring freeze from FY2011 to FY2014, the number
of IJs dropped from 273 to 249. Pending cases grew 44% during that period, from approximately
298,000 to 430,000, even though the annual number of cases filed did not increase (refer to
Figure 4, “pending” and “received”). DOJ has increased IJ hiring in recent years, more than
doubling the number of IJs from FY2014 (249) through FY2021 (559) (see the “Hiring More
Immigration Judges and Court Staff” section below).
EOIR has identified challenges with IJ hiring. The hiring process is time intensive; EOIR has
stated that vetting (e.g., background investigations) and hiring IJs has historically taken more than
one year.95 A 2017 U.S. Government Accountability Office (GAO) analysis found that the
process—from posting a vacancy on USAJobs to the extension of an official offer—took on
average nearly two years to complete.96 Recently, however, EOIR has stated that it has improved
its process and reduced its hiring time “to generally six months or less” as the result of a plan
implemented in 2017. This process allows IJs to be appointed temporarily pending full
background investigations, which can take upward of a year to complete. As a result, EOIR stated
it “has been able to clear a new IJ to start in as little as 150 days and to onboard a new IJ in as
little as 195 days.”97
In recent years, even as EOIR hired more IJs, the attrition rate for IJs doubled.98 During the last
10 fiscal years (FY2012-FY2021), an estimated 203 IJs departed (see Figure 11).99 Some
observers have associated IJ departures with policies implemented during the Trump
Administration, including implementing quotas requiring 700 case completions per year (see the
“IJ Quotas and Performance Measures” section below), as well as other concerns about judicial
independence and general burnout.100 EOIR has noted that IJ retirements and separations have
been higher in recent years and estimates that approximately one-third of IJs are currently eligible
to retire.101
Despite the agency’s focus on hiring in recent years, caseloads remain high and unevenly
distributed among immigration courts. As of February 2022, 10 immigration courts were

95 EOIR, “FY2021 Congressional Budget Submission,” February 2020.
96 GAO, Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long-Standing Management and
Operational Challenges, GAO-17-438, 2017.
97 EOIR, “FY2022 Performance Budget: Congressional Budget Submission,” May 2021, p. 21.
98 EOIR, “FY2022 Congressional Budget Submission,” May 2021.
99 EOIR, “Immigration Judge Hiring,” Adjudication Statistics, October 2021. Number of departed immigration judges
imputed based on the number of immigration judges hired and total on board.
100 For example, see Molly Hennessy-Fiske, “Immigration Judges Calling it Quits under Trump; Many Say They Are
Leaving because of ‘Unbearable’ Pressure to Rush through Cases,” Los Angeles Times, January 26, 2020; and Priscilla
Alvarez, “Immigration Judges Quit in Response to Administration Policies,” CNN Politics, December 27, 2019.
101 EOIR, “FY2021 Congressional Budget Submission,” February 2020; and “FY2022 Congressional Budget
Submission,” May 2021.
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responsible for 47% of all pending cases.102 Some IJs have had as many as 5,000 pending cases
on their dockets103 and have reported hearing more than 80 cases per day.104
Some observers have raised concerns about the qualifications and comportment of IJs hired in
recent years, including lack of immigration experience, inappropriate courtroom behavior,
disparities in asylum grant rates, inadequate vetting during the hiring process, and concerns about
politicized hiring.105
EOIR has also indicated that its IJs have been hampered by a “fragmented, paper-based” case
management system and that its planned transition to an electronic platform was delayed by the
COVID-19 pandemic. An estimated 1 million cases exist in a paper format, which EOIR has
associated with case scheduling and adjudication inefficiencies. Unlike paper files, electronic
files, for example, allow for adjudication from any location and for easier transfer from OCIJ to
the BIA. Paper files must now be scanned to be converted to electronic format, which EOIR
estimated would take five years.106
The number of case completions per IJ has generally declined since the mid-2000s, with the
exception of FY2019 (Figure 7). In FY2021, immigration courts had the lowest numbers of total
case completions since FY1994,107 despite a record high number of IJs, likely reflecting, in large
part, impacts of court closures from the COVID-19 pandemic (see the “COVID-19 and
Temporary Court Closures” section below). Average case completions per month in FY2021
(9,612) were about half the levels of completions in FY2020 (19,340). However, the decline in
case completions per IJ preceded the pandemic.108

102 Miami (128,449 pending cases), New York (113,664), Newark (91,429), Boston (87,474), Orlando (85,543), San
Francisco (82,291), Los Angeles (71,734), Dallas (77,364), Arlington, VA (72,106), and Chicago (69,049). TRAC,
“Immigration Court Backlog Tool,” at https://trac.syr.edu/phptools/immigration/court_backlog/.
103 Statement of National Association of Immigration Judges President A. Ashley Tabbador, in House Committee on
the Judiciary, Subcommittee on Immigration and Citizenship, The State of Judicial Independence and Due Process in
U.S. Immigration Courts, hearing, 116th Cong., 2nd sess., January 29, 2020 (hereinafter, “Tabbador 2020”).
104 Eric Katz, “‘Conveyer Belt’ Justice: An Inside Look at Immigration Courts,” Government Executive, January 23,
2019 (hereinafter, “Katz 2019”).
105 For example, see ABA 2019; Kate Morrissey and Lauryn Schroeder, “Who Gets Asylum? Even Before Trump,
System was Riddled with Bias and Disparities,” San Diego Union-Tribune, August 24, 2020; Tal Kopan, “Bad
Conduct, Leering ‘Jokes’—Immigration Judges Stay on Bench,” San Francisco Chronicle, January 22, 2021; and
Reade Levinson, Kristina Cooke, and Mica Rosenberg, “Special Report: How Trump Administration Left Indelible
Mark on U.S. Immigration Courts,” Reuters, March 8, 2021.
106 EOIR, “FY2022 Congressional Budget Submission,” May 2021, p. 6.
107 EOIR, “New Cases and Total Completions – Historical,” Adjudication Statistics, October 19, 2021.
108 See David J. Bier, “Immigration Courts’ Lower Productivity Explains Backlog of Cases,” Cato at Liberty blog,
August 9, 2016 (hereinafter, “Bier 2016”); and GAO, Immigration Courts: Actions Needed to Reduce Case Backlog
and Address Long-Standing Management and Operational Challenges, GAO-17-438, June 2017 (hereinafter, “GAO
2017”).
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Figure 7. Average Annual Case Completions per Immigration Judge, FY2002-FY2021

Source: Computed as the annual number of total case completions divided by the number of IJs on staff at the
end of each fiscal year. Case completions: EOIR, “New Cases and Total Completions – Historical,” Adjudication
Statistics, January 19, 2022; IJs: FY2002-FY2009: Data provided to CRS by EOIR on November 22, 2021; FY2010-
FY2021: EOIR, “Immigration Judge (IJ) Hiring,” Adjudication Statistics, October 2021.
In addition to the recent impacts of COVID-19 pandemic-related court closures, a number of
factors may be associated with declines in case completions. For example, GAO reported that
case completions decline during periods of hiring because new judges complete fewer cases “as
they are learning on the job.”109 The National Association of Immigration Judges (NAIJ) has
stated that EOIR’s hiring has been “lopsided,” and overly focused on Assistant Chief Immigration
Judges (ACIJs), managerial judges who oversee the operations of specific immigration courts and
who balance their dockets with supervisory responsibilities.110 FY2022 appropriations for EOIR
include a directive to the Attorney General that IJs hired during the fiscal year should “adjudicate
cases as their primary function.”111

109 GAO 2017, p. 24.
110 NAIJ, “The Immigration Court – In Crisis and in Need of Reform,” August 2019.
111 H.R. 2471 Joint Explanatory Statement—Division B: Commerce, Justice, Science, and Related Agencies
Appropriations Act, 2022, p. 67.
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NAIJ also reported a lack of adequate support staff and that hiring of support staff has not kept
pace with IJ hiring. In 2020 congressional testimony, NAIJ stated:
EOIR’s hiring practices have ignored congressional directives for effective use of funds
and is primarily hiring judges and supervisory judges, rather than focusing on the required
support team and concomitant resources such as contract interpreters. In the past three
fiscal years, EOIR has hired over 200 immigration judges but failed to adequately budget
for and hire the necessary clerical and support staff required for the successful
administration of the court.112
EOIR’s recent budget requests have included funding for support staff, including attorneys, legal
assistants, and interpreters.113 The agency has also pointed to a need for more courtroom space to
accommodate its new hires.114
Administrative closures may also be impacting case completion rates—administratively closed
cases are not considered case completions. Such cases are temporarily closed and moved to a
pending docket until they are re-calendared. There were relatively high numbers of administrative
closures between FY2012 and FY2017, during which case completion rates dropped
substantially. If administrative closures were considered case completions, the decline in
productivity is somewhat attenuated for those years. For example, when considering case
completions only, productivity per IJ declined 14.6% between FY2012 and FY2013. When
administrative closures are factored into the total number of cases completed, the decline was
8.7% (for further discussion of administrative closures, see the “Docket Management” section
below).
Some observers have posited that net productivity has been impacted by increased numbers of
unaccompanied children and family units seeking humanitarian protection at the Southwest
border (see the “Interior and Border Enforcement” section below). These cases are typically more
complex and take longer to adjudicate. However, analysts have noted that a decline in
productivity preceded the increase in arrivals of these groups.115
Interior and Border Enforcement
Because NTAs are an enforcement outcome issued by DHS components (CBP, ICE, and USCIS),
the number of cases before immigration courts are linked to immigration enforcement, including
CBP apprehensions at the U.S. border, ICE enforcement priorities, and DHS-wide agency
policies.
The relationship between combined NTA issuances for all three DHS immigration agencies and
the pending cases backlog has not been consistently linear (see Figure 8). From FY2011 through
FY2013 and again from FY2014 to FY2015, the number of pending cases increased even as NTA
issuances decreased. From FY2017 through FY2019, the number of pending cases grew as NTA
issuances increased. NTA issuances dropped in FY2020 with the onset of the COVID-19
pandemic.116 NTA issuances by each DHS immigration agency are discussed below.

112 Tabbador 2020. See also GAO 2017.
113 See, for example, EOIR, “FY2022 Performance Budget, Congressional Budget Submission,” May 2021, p. 23.
114 Ibid., p. 6.
115 Bier 2016.
116 See CRS Insight IN11335, COVID-19’s Effect on Interior Immigration Enforcement and Detention; and CRS
Insight IN11741, U.S. Customs and Border Protection (CBP) COVID-19 Policies and Protocols at the Southwest
Border.
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Figure 8. DHS NTA Issuances and Pending Immigration Court Cases,
FY2011-FY2020

Source: NTAs issued: Alan Moskowitz and James Lee, Immigration Enforcement Actions: 2020, Table 4, DHS
Office of Immigration Statistics. Pending cases: EOIR, “Pending Cases, New Cases, and Total Completions,”
Adjudication Statistics, October 19, 2021.
Note: NTA data for FY2021 are not yet available.
CBP
With the exception of FY2021, enforcement encounters between POEs at the U.S.-Mexico border
have been lower over the last decade than in previous decades.117 However, the circumstances of
these encounters have changed. In recent years, increasing numbers of Central American families
and unaccompanied minors have sought asylum between POEs. This affects immigration courts
because, under the INA, individuals who request asylum must be placed in formal removal
proceedings before an IJ rather than undergoing an expedited removal process with DHS.118
These changing circumstances are reflected in higher numbers of defensive asylum applications
filed with and pending in immigration courts (Figure 9). Defensive asylum applications increased
nearly 700% from FY2012 to FY2020. In FY2021, the number of applications filed declined
considerably,119 likely reflecting the pandemic-related Centers for Disease Control and Prevention

117 For more information, see CRS Report R46999, Immigration: Apprehensions and Expulsions at the Southwest
Border.
118 INA §235(b)(1); 8 U.S.C. §235(b)(1).
119 Independent analysts at TRAC at have alleged that there are problems with the quality of EOIR’s asylum data. For
example, TRAC has identified more than 13,000 asylum applications that have “disappeared from EOIR data during
FY2019-FY2022” and stated that they “uncovered a second issue where EOIR lost track in its database that an asylum
application had been filed.” See TRAC, “About the Data on Asylum,” at https://trac.syr.edu/phptools/immigration/
asylumbl/about_data.html, and “Immigration Court Asylum Backlog,” at https://trac.syr.edu/phptools/immigration/
asylumbl/.
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Title 42 order that has led to many migrants being expelled without an asylum screening.120 At the
end of the first quarter of FY2022, there were 431,837 pending defensive asylum applications.121
Figure 9. Defensive Asylum Applications Filed and Pending, FY2013-FY2022(Q1)

Source: EOIR, “Defensive Asylum Applications,” Adjudication Statistics, January 19, 2022.
Note: FY2022 data is for the first quarter only.
The most NTAs issued in a fiscal year by USBP over the last decade was 521,894 in FY2019.
NTAs issued by OFO in FY2019 (61,892) were at their highest level since FY2005 (Figure 10).
FY2019 saw the largest number of apprehensions at the Southwest border since FY2007; these
apprehensions were disproportionately made up of family units (54% of the total), primarily from
Central America.122

120 There were 4 million USBP apprehensions from FY2011 to FY2020, compared with 9 million from FY2001
through FY2010. CBP documented high rates of USBP encounters at the Southwest border in FY2021 (approximately
1.66); however, the majority of these (about 63%) were expulsions under Title 42 (public health) of the U.S. code—not
Title 8 (immigration) apprehensions. Individuals who are expelled under Title 42 are not placed in formal removal
proceedings. See CRS Report R46999, Immigration: Apprehensions and Expulsions at the Southwest Border; and CRS
Insight IN11741, U.S. Customs and Border Protection (CBP) COVID-19 Policies and Protocols at the Southwest
Border.
121 EOIR also receives affirmative asylum applications for individuals who file an affirmative asylum application with
USCIS. If USCIS fails to approve the application, it may issue an NTA and refer the case to EOIR for a new hearing. In
the first quarter of FY2022, EOIR had 196,714 pending affirmative asylum applications; EOIR, “Affirmative Asylum
Applications,” Adjudication Statistics, January 19, 2022.
122 CBP, “Southwest Land Border Encounters,” May 10, 2021, at https://www.cbp.gov/newsroom/stats/southwest-land-
border-encounters.
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ICE
When ICE apprehends an unauthorized alien as part of its interior enforcement mission, that
individual will typically be issued an NTA and put into formal removal proceedings. The
executive branch has discretion to determine who among the estimated 11 million unauthorized
noncitizens residing in the United States should be prioritized for immigration enforcement.123
Interior enforcement expanded during the 2000s, leading to increased apprehensions and NTA
issuances. The Obama Administration narrowed its enforcement priorities in 2011124 and again in
2014125 to focus on noncitizens deemed threats to national security and those convicted of serious
criminal offenses. In 2017, the Trump Administration expanded enforcement priorities.126
Guidance issued to DHS personnel, accompanying President Trump’s Executive Order, stated,
“Department personnel shall faithfully execute the immigration laws of the United States against
all removable aliens.”127 NTA issuances reflect these policy changes in fiscal years 2017 and 2018
(Figure 10). In FY2019 and FY2020, NTAs issued by ICE ERO declined as the agency
reallocated resources to the Southwest border and narrowed enforcement efforts in response to
the COVID-19 pandemic.128
In FY2021, under the Biden Administration, ICE issued new guidance narrowing removal
priorities to noncitizens who present threats to national security, border security, and public
safety.129 The ICE guidance also specified parameters for prosecutorial discretion, which allows
DHS to decide on a case-by-case basis whether or how to prosecute an individual. This includes
whether to issue an NTA, agree to administrative closure or continuances, or dismiss
proceedings.130 ICE guidance to OPLA attorneys acknowledged the immigration courts backlog
and delays in case completions, stating they “impede the interests of justice for both the
government and respondents alike and undermine public confidence in this important pillar of the
administration of the nation’s immigration laws.”

123 See CRS Legal Sidebar LSB10578, The Biden Administration’s Immigration Enforcement Priorities: Background
and Legal Considerations.
124 John Morton, ICE Director, “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and
Removal of Aliens,” memorandum, March 2, 2011.
125 Jeh Charles Johnson, DHS Secretary, “Policies for the Apprehension, Detention and Removal of Undocumented
Immigrants,” memorandum, November 20, 2014.
126 Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” 82 Federal Register 8799-
8803, January 25, 2017.
127 John Kelly, DHS Secretary, “Enforcement of the Immigration Laws to Serve the National Interest,” memorandum,
February 20, 2017.
128 ICE ERO, U.S. Immigration and Customs Enforcement Fiscal Year 2019 Enforcement and Removal Operations
Report, no date; ICE ERO, U.S. Immigration and Customs Enforcement Fiscal Year 2020 Enforcement and Removal
Operations Report, no date.
129 Tae D. Johnson, ICE Acting Director, “Interim Guidance: Civil Immigration Enforcement and Removal Priorities,”
memorandum, February 18, 2021; and Alejandro N. Mayorkas, DHS Secretary, “Guidelines for the Enforcement of
Civil Immigration Law,” memorandum, September 30, 2021.
130 ICE stated that prosecutors should consider mitigating factors including a noncitizen’s length of U.S. residence,
military service, family or community ties, immigration history, work history, current immigration status, status as a
victim, potential options for relief, community contributions, and humanitarian factors. Aggravating factors for
consideration include criminal history, persecution and human rights violations, fraud, and extent and seriousness of
immigration violations. See John D. Trasviña, ICE Principal Legal Advisor, “Interim Guidance to OPLA Attorneys
Regarding Civil Immigration Enforcement and Removal Policies and Priorities,” memorandum, May 27, 2021; and
Kerry Doyle, ICE Principal Legal Advisor, “Guidance to OPLA Attorneys Regarding the Enforcement of Civil
Immigration Laws and the Exercise of Prosecutorial Discretion,” memorandum, April 3, 2021.
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EOIR issued related guidance stating:
Immigration judges should be prepared to inquire, on the record, of the parties appearing
before them at scheduled hearings as to whether the case remains a removal priority for
ICE and whether ICE intends to exercise some form of prosecutorial discretion, for
example by requesting that the case be terminated or dismissed, by stipulating to eligibility
for relief, or, where permitted by case law, by agreeing to the administrative closure of the
case. The judge should ask the respondent or his or her representative for the respondent’s
position on these matters, and take that position into account, before taking any action.131
USCIS
USCIS can issue NTAs for a variety of reasons.132 Guidance issued in 2011 specified
circumstances under which USCIS would issue NTAs directly or refer cases to ICE to decide
whether to issue an NTA.133 In June 2018, USCIS issued new guidance substantially expanding
the circumstances under which it directly filed NTAs with EOIR.134 The 2018 guidance was
subsequently rescinded in January 2021. A report by the USCIS Ombudsman stated that the June
2018 guidance “exposed pervasive problems such as: a misalignment between prosecutorial
discretion practices and finite government resources; ineffective coordination resulting in
agencies working at cross purposes; and persistent jurisdictional issues hindering administrative
efficiency.” Characterizing the impact of the June 2018 policy, the report stated, “The expected
increase in NTAs that never materialized suggests that individual officers were unable to take on
this added responsibility.”135

131 Jean King, EOIR Acting Director, “Effect of Department of Homeland Security Enforcement Priorities,”
memorandum, PM 21-25, June 11, 2021.
132 These include cases where an individual is removable because of fraud or misrepresentation, or abuse of public
benefits; criminal cases; or cases where USCIS denying a petition or application leads to unlawful presence.
133 Under the 2011 guidance, USCIS issues NTAs for termination of conditional permanent resident status and denials
of Form I-751, Petition to Remove the Conditions of Residence; denials of Form I-829, Petition by Entrepreneur to
Remove Conditions; termination of refugee status by the District Director; denials of NACARA 202 and Haitian
Refugee Immigrant Fairness Act (HRIFA) adjustments; and asylum referrals, termination of asylum or termination of
withholding of removal or deportation, positive credible fear findings, and NACARA 203 cases where suspension of
deportation or cancellation of removal is not granted, and the applicant does not have asylum status, or lawful
immigrant or non-immigrant status. USCIS, PM-602-0050, November 7, 2011.
134 Under the 2018 guidance, USCIS expanded the circumstances under which it issues NTAs to include the following:
cases where fraud or misrepresentation is substantiated or where an applicant abused any public benefits program;
criminal cases where applicants are convicted of/charged with a criminal offense, or committed acts chargeable as a
criminal offense, even if the conduct was not the basis for denial or a ground of removability; applications for
naturalization denied on good moral character grounds because of a criminal offense; and cases in which applicants are
unlawfully present after the denial of an application or petition. USCIS, PM-602-0050.1, June 28, 2018.
135 Office of the Citizenship and Immigration Services Ombudsman, Annual Report 2021, June 30, 2021, p. 16.
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Figure 10. NTA Issuances by DHS Component, FY2011-FY2020

Source: Alan Moskowitz and James Lee, Immigration Enforcement Actions: 2020, Table 4, DHS Office of
Immigration Statistics.
COVID-19 and Temporary Court Closures
The pending cases backlog has been exacerbated by external events that have resulted in
temporary closures of immigration courts. During an appropriations lapse that caused a partial
government shutdown from December 2018 through January 2019, EOIR proceeded with cases
on the detained docket but postponed hearings for non-detained cases.136 Approximately 60,000
non-detained hearings were cancelled during the shutdown.137
More recently, hearings have been substantially impacted by the COVID-19 pandemic. In March
2020, groups representing IJs, immigration attorneys, DHS prosecutors, and some Members of
Congress called on EOIR to postpone all court appearances and close all courts out of concern for
potential exposure to the virus.138 EOIR closed certain immigration courts in areas with high
infection rates in early March.139 EOIR then postponed all hearings for non-detained respondents
as of March 18, 2020, and closed certain additional immigration courts, but proceeded with
hearings for detained respondents.140 Migrant Protection Protocol (MPP) cases for individuals

136 EOIR, “Immigration Court Operating Status During Lapse in Appropriations,” December 26, 2018.
137 U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, Permanent Subcommittee on
Investigations, The True Cost of Government Shutdowns, staff report, 116th Cong., 1st sess., September 17, 2019, p. 7.
138 Suzanne Monyak, “Chaos, Confusion Reign as Immigration Courts Stay Open,” Law360, March 27, 2020.
139 Dorothy Atkins, “Coronavirus ‘Exposure’ Shuts Seattle Immigration Court,” Law360, March 11, 2020; Suzanne
Monyak, “DOJ Scales Back Immigration Court Hearings in 6 Cities,” Law360, March 14, 2020.
140 EOIR stated that it proceeded with detained hearings out of concerns regarding Fifth Amendment due process
requirements and the potential for overcrowding in detention facilities, and because of statutory deadlines for
adjudication in certain cases. The detained docket grew during the pandemic, as ICE continued to arrest noncitizens
and place them in detention centers. See DOJ, Office of Inspector General, Limited-Scope Review of the Executive
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being held in Mexico were repeatedly postponed and then indefinitely suspended in July 2020
(see the “Accelerated Dockets” section below).141 Some stakeholders and lawmakers continued to
express concern about in-person hearings.142
EOIR began resuming hearings for non-detained respondents in June 2020.143 Sporadic, short-
term closures have continued throughout the pandemic due to possible COVID-19 exposure in
courts. Closures have often been announced with little notice, typically via EOIR’s Twitter
account. In January 2022, EOIR again postponed most hearings for non-detained respondents
amid a surge of the Omicron variant.
During the pandemic, the backlog of pending cases has grown as case completions have declined.
According to an analysis by TRAC, case completions in July 2020 had dropped 85% compared to
February 2020.144 GAO identified approximately 600,000 hearings postponements from March to
October 2020 due to court closures.145
For cases involving a detained respondent, however, the number of pending cases has declined.
GAO suggested that this may be due to the decreased number of individuals detained during the
pandemic and the use of video teleconference for hearings involving detained respondents.146
Proposed Solutions to the Backlog
Lawmakers and stakeholders generally agree that the pending cases backlog must be addressed.
Proposals to resolve it vary. One approach with relatively broad support centers on greater
resources for EOIR and increasing the number of IJs available to adjudicate cases. Other
approaches have been more contested. For example, IJs have requested more independence to
manage dockets and administratively close cases. Others, including DOJ leadership under the
Trump Administration, have pushed for greater oversight of IJs by adding quotas and
performance measures.
Different administrations—including the Obama, Trump, and Biden Administrations—have also
attempted to reduce the backlog by implementing accelerated dockets for certain populations—a
practice that has raised objections from some IJs and immigrant advocates. The implementation
and subsequent reversals of certain EOIR policies across administrations indicate that the
conditions under which IJs adjudicate cases are subject to changing political leadership, which is
a concern for many IJs.

Office for Immigration Review’s Response to the Coronavirus Disease 2019 Pandemic, Pandemic Response Report 21-
063, April 2021.
141 DHS and DOJ announced certain criteria for restarting MPP hearings, tied to reopening stages in U.S. and Mexican
border states and Department of State and Centers for Disease Control health advisories. DHS and DOJ, “Department
of Homeland Security and Department of Justice Announce Plan to Restart MPP Hearings,” news release, July 17,
2020.
142 For example, see Letter from Sens. Blumenthal, Markey, Hirono, Harris, Kaine, Booker, Wyden, Warren,
Klobuchar, and Rosen to William P. Barr, Attorney General, and James McHenry, EOIR Director, March 27, 2020.
143 EOIR, “EOIR to Resume Hearings in Non-Detained Cases at Certain Immigration Courts,” news release, June 24,
2020; American Immigration Lawyers Association, “AILA tracks EOIR’s Historical Operational Status During
Coronavirus Pandemic,” AILA Doc. No. 20051400, March 5, 2021.
144 TRAC, “Immigration Court Completions Remain at Historic Lows through July 2020,” August 20, 2020.
145 GAO, COVID-19: Improvements Needed in Guidance and Stakeholder Engagement for Immigration Courts, GAO-
21-104404, August 21, 2010.
146 Ibid.
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Other proposals involve more-structural changes to immigration courts. Some propose to change
the defensive asylum process entirely by having DHS officers serve as first-line adjudicators of
asylum claims to reduce the burden on courts—the Biden Administration plans to soon
implement this approach via an interim final rule. In addition, an ongoing debate considers
whether immigration courts should operate as independent courts under Article I of the U.S.
Constitution or remain within DOJ.
Hiring More Immigration Judges and Court Staff
In recent years, DOJ has prioritized hiring IJs to address the pending case backlog and replace
judges who have departed. From FY2014 to FY2021, the number of IJs more than doubled, from
249 to 559, as EOIR hired 477 new IJs (Figure 11).147 At the end of the first quarter of FY2022,
there were 578 IJs on board.148
Figure 11. Immigration Judges Hired, Departed, and On Board, FY2011-FY2021

Source: EOIR, “Immigration Judge (IJ) Hiring,” Adjudication Statistics, October 2021.
Notes: Departures have been imputed by CRS.

147 For FY2022, EOIR sought funding to hire 100 new IJs and associated support personnel at an estimated cost of $1.6
million per IJ. According to EOIR, support personnel per IJ include “one attorney position, one legal assistant; and two
other FTEs comprised of a combination of the following positions on an as-needed basis: additional legal assistant,
interpreter, and/or other EOIR mission support staff. Some support positions may also go to headquarters to support the
growth of immigration courts.” The $1.6 million estimate includes salaries and associated expenses, such as office
space, for a full year. EOIR also requested funding for 100 attorney advisors to support IJs and appellate judges,
stating, “With a higher ratio of attorneys to IJs, EOIR will be able to issue more written decisions rather than relying on
oral decisions, which can require more time in court and can increase the time it takes to close a case.” See EOIR,
FY2022 Performance Budget: Congressional Budget Submission¸ May 2021.
148 EOIR, “Immigration Judge (IJ) Hiring,” Adjudication Statistics, January 2022.
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Even with substantial investments in hiring, it would likely take several years to adjudicate the
pending cases backlog (Table 4).
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Table 4. Estimated Impact of Immigration Judge Hiring on Pending Cases Backlog
Scenarios based on hiring 0, 100, 200, 300, 400, or 500 additional IJs and holding average cases completed and average new cases constant
Annual backlog change, based on number of additional judges
Number of additional judges
0
100
200
300
400
500
Total number of judges, with additional
578
678
778
878
978
1,078
Each judge completes an average of 509.7 cases annually

Estimated number of cases completed annually by total number of judges (total
294,607
345,577
396,547
447,517
498,487
549,457
number of judges x 509.7 cases)
The average number of new cases each year is 351,339

Estimated annual change to backlog
56,732
5,762
(45,208)
(96,178)
(147,148)
(198,118)
(351,339 cases—estimated number of cases completed)
Expected total backlog (starting backlog + estimated annual change to backlog)
Starting backlog (actual size of backlog as of FY2022 Q1)
1,503,931
1,503,931
1,503,931
1,503,931
1,503,931
1,503,931
Estimated size of backlog in FY2023
1,560,663
1,509,693
1,458,723
1,407,753
1,356,783
1,305,813
Estimated size of backlog in FY2024
1,617,395
1,515,455
1,413,515
1,311,575
1,209,635
1,107,695
Estimated size of backlog in FY2025
1,674,127
1,521,217
1,368,307
1,215,397
1,062,487
909,577
Estimated size of backlog in FY2026
1,730,859
1,526,979
1,323,099
1,119,219
915,339
711,459
Estimated size of backlog in FY2027
1,787,591
1,532,741
1,277,891
1,023,041
768,191
513,341
Estimated size of backlog in FY2028
1,844,323
1,538,503
1,232,683
926,863
621,043
315,223
Estimated size of backlog in FY2029
1,901,055
1,544,265
1,187,475
830,685
473,895
117,105
Estimated size of backlog in FY2030
1,957,787
1,550,027
1,142,267
734,507
326,747
(81,013)
Estimated size of backlog in FY2031
2,014,519
1,555,789
1,097,059
638,329
179,599
(279,131)
Sources: Average cases completed annually per IJ: five-year average of case completions per IJ, FY2016-FY2020 (see Figure 7). Excludes FY2021 due to abnormally low case completions
related to the COVID-19 pandemic. Average annual new cases: five-year average of case receipts, FY2016-FY2020 (see Figure 4). Actual size of backlog as of FY2022, Q1: see Figure 2.
Notes: IJ values are based on the number of IJs on staff in the first quarter of FY2022. Backlog values under different IJ hiring scenarios are best estimates based on recent data. It is possible
that annual case receipts could decline to a level lower than the current five-year average, for example, under the new asylum rule if DHS issues fewer NTAs due to new prosecutorial
discretion priorities, or if IJ productivity increases in the case that more attorney advisors and support staff are hired. In such cases, these figures would underestimate the impact of IJ hiring.
Conversely, if DHS were to issue more NTAs than average or if IJ productivity were to decline, these figures would overestimate the impact of IJ hiring. Projections do not take into account IJ
departures.

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As shown in Table 4, even with hiring 100 additional IJs, the pending cases backlog would be
expected to grow. Hiring an additional 200 IJs would reduce the backlog, a scenario under which
CRS estimates pending cases would decline to just under 1.1 million by FY2031. With 300
additional IJs, the backlog would decline to an estimated 638,329 cases by FY2031.
Higher levels of IJ hiring would have more substantial impacts in reducing the backlog: with an
additional 400 IJs, the backlog would drop to an estimated 180,000 cases by FY2031. In the
highest hiring scenario presented, it is expected that an additional 500 IJs would eliminate the
backlog entirely by FY2030, holding all else equal.
These scenarios are depicted graphically in Figure 12.
Figure 12. Estimated Pending Cases Backlog under Different Immigration Judge
Hiring Scenarios
Estimates for 0, 100, 200, 300, 400, and 500 additional IJs

Source: CRS analysis; see Table 4 for sources.
Docket Management and Administrative Closure
Immigration judges and other observers have advocated for IJs to maintain authority to manage
their dockets through practices such as administrative closure. This authority had been curtailed
in recent years.
When a case is administratively closed, it moves from the pending active docket to an inactive
docket. IJs and EOIR leadership under some administrations have stated that administrative
closure allows judges to prioritize cases that are enforcement priorities while allowing low-
priority respondents time to pursue applications for relief outside of immigration courts, (e.g.,
those pursuing a family-sponsored green card petition or a U visa for certain crime victims with
USCIS).
Administrative closure has been available to IJs since the 1980s.149 Examining the last 20 fiscal
years reveals a substantially higher number of administrative closures from FY2011 through

149 Elizabeth Montano, “The Rise and Fall of Administrative Closure in Immigration Courts,” The Yale Law Journal
vol. 129 (2020) (hereinafter, “Montano 2020”).
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FY2016, after the Obama Administration issued guidance for DHS and DOJ to prioritize cases for
individuals convicted of crimes or posing security risks (Figure 13).150
Figure 13. Administrative Closures by Fiscal Year, FY2002-FY2021

Source: EOIR, “Inactive But Pending Cases by FY of Administrative Closure,” Adjudication Statistics, October
19, 2021.
During the Trump Administration, DOJ leadership restricted IJs’ ability to administratively close
cases. In 2018, then-Attorney General Jeff Sessions, in his review of a BIA decision, determined
that IJs and the BIA “do not have the general authority to suspend indefinitely immigration
proceedings by administrative closure.”151 In 2020, EOIR published a final rule in the Federal
Register stating that IJs and BIA members do not have freestanding authority to administratively
close cases.152
These changes were subsequently reversed. Federal courts of appeals overruled Sessions’
decision, finding that the BIA and IJs do have the authority to administratively close cases.153 In
March 2021, a federal district court issued a preliminary injunction of the regulation.154 In July
2021, a ruling issued by Attorney General Merrick Garland overturned Sessions’ decision,

150 Looking back farther, TRAC has noted a previous peak in administrative closures during the late 1980s and early
1990s during the Reagan and George H.W. Bush Administrations. TRAC, The Life and Death of Administrative
Closure, September 2020.
151 Matter of Castro Tum, 27 I&N Dec. 271 (A.G. 2018).
152 EOIR, “Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure,” 85
Federal Register 81588, December 16, 2020; 8 C.F.R. §1003.1(d)(iii).
153 Three circuit courts have overruled Matter of Castro Tum: the Third, Fourth, and Seventh Circuits; Jeannie
O’Sullivan, “3rd Circ. Says BIA Can Close Cases, Contrary to 2018 Rule,” Law360, May 5, 2021.
154 Holly Barker, “Federal Court Halts Enforcement of Sweeping New Immigration Rule,” Bloomberg Law, March 11,
2021.
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restoring the ability of most IJs and the BIA to administratively close cases.155 In a November
2021 memorandum, EOIR Director David Neal, citing EOIR’s “finite resources and a daunting
caseload,” encouraged IJs to administratively close cases deemed low priorities by DHS.156
Critics of this practice have claimed that administratively closing cases obscures the true scope of
the pending cases backlog.157 If the approximately 286,000 inactive pending cases were added to
the backlog of active cases, total pending cases would have increased from 1.4 million to 1.7
million by the end of FY2021. Proponents have argued that restricting IJs’ ability to
administratively close cases undermines judges’ autonomy, reduces the efficiency of courts, and
exacerbates the backlog.158
A 2020 TRAC analysis examined cases that were administratively closed and re-calendared from
FY1986 through July 2020. Among those, approximately 60% of respondents were able to remain
in the United States once their cases were re-calendared and decided either because the court
found no grounds for removal and their cases were terminated (44%) or they were granted relief
from removal (16%). Thirty percent of respondents were ordered removed and 10% departed
voluntarily.159
Other observers have argued for a different form of docket management to reduce the backlog:
the power to dismiss so-called meritless cases early in removal proceedings.160 Part of an
expansive 2020 federal regulation would have allowed IJs to deny applications for relief without
a merits hearing if the respondent did not establish a prima facie (based on the first impression)
claim for relief or protection.161 The regulation was blocked by a federal district court before it
took effect.162
IJ Quotas and Performance Measures
Under the Trump Administration, EOIR implemented new IJ performance metrics as a method to
reduce the backlog. These included expected completion timelines for detained cases, non-
detained cases, motions, custody redeterminations, and credible fear reviews. A 2018 memo
stated that implementation of the measures was “vital to ensure that the immigration court system
is performing strongly, that EOIR is adjudicating cases fairly, expeditiously, and uniformly
consistent with its mission, and that it is addressing its pending caseload in support of the
principles established by the Attorney General.” 163

155 Matter of Cruz-Valdez, 28 I. & N. Dec. 326 (A.G. 2021). Administrative closure may still be restricted in the Sixth
Circuit; see Alyssa Aquino, “Garland Restores Courts’ Power to Pause Deportation Cases,” Law360, July 15, 2021.
156 David L. Neal, EOIR Director, “Administrative Closure,” DM 22-03, November 22, 2021.
157 Andrew R. Arthur, “Attorney General Orders Review of Administrative Closure,” blog, Center for Immigration
Studies, January 9, 2018.
158 Montano 2020; TRAC, The Life and Death of Administrative Closure, September 2020.
159 TRAC, The Life and Death of Administrative Closure, September 2020.
160 Charles Stimson and GianCarlo Canaparo, “Expanding the Toolkit: Giving Immigration Judges Authority to
Summarily Dispose of Meritless Cases,” Heritage Foundation, July 18, 2019.
161 EOIR, “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review,” 85
Federal Register 80280, December 11, 2020.
162 Edvard Pettersson, “Trump’s ‘Death to Asylum’ Overhaul Is Halted by U.S. Judge,” Bloomberg Law, January 8,
2021.
163 James R. McHenry III, EOIR Director, “Case Priorities and Immigration Court Performance Measures,”
memorandum, January 17, 2018.
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To achieve satisfactory performance each year, IJs were expected to meet at least half of these
benchmarks, as well as complete 700 cases and have a remand rate (i.e., rate of decisions
overturned on appeal by the BIA or the circuit court) of less than 15%.
NAIJ and some immigration attorneys objected to these measures based on due process and
judicial independence concerns.164 For example, IJs stated that such a system creates an incentive
to quickly terminate cases or grant relief in the interest of meeting one’s quota, rather than taking
the time needed to review the merits of a case or grant attorneys additional time to gather
paperwork.165 NAIJ characterized the measures as “unrealistic and ill-conceived,” failing to
consider variation across cases and dockets, and lacking a sound basis.166 In October 2021, EOIR
suspended those case completion quotas, stating in a memo to IJs that it was “in the process of
developing new performance measures ... that will accurately reflect the workload of an
immigration judge.”167
EOIR also sought to address the backlog in its 2019 “No Dark Courtrooms” memorandum, which
identifies unused immigration courtrooms as a factor exacerbating the size of the backlog and the
agency’s ability to reduce it. The memo requires courts to use all blocks of available immigration
court time each day, “unless there is absolutely no immigration judge available, including by
[video teleconferencing].”168 Immigration attorneys have argued that the policy undermines due
process, stating that counsel have been given inadequate notice when judges advance hearings to
fill these slots.169
Accelerated Dockets
In response to greater numbers of individuals and families seeking humanitarian protection at the
U.S.-Mexico border, EOIR has, at various times, implemented procedures to prioritize and fast
track cases for unaccompanied children and families seeking asylum.170 The Obama, Trump, and
Biden Administrations implemented accelerated dockets to adjudicate cases more quickly for
certain arriving migrants and prevent them from remaining in the United States for long periods
while they wait for their cases to be adjudicated. Across those administrations, opponents of
accelerated dockets have argued that they present due process concerns for respondents,
undermine IJs’ ability to control their dockets, and disadvantage those in the backlog waiting to
have their cases completed.171

164 Laura Meckler, “New Quotas for Immigration Judges as Trump Administration Seeks Faster Deportations,” Wall
Street Journal, April 2, 2018.
165 Katz 2019.
166 Tabbador 2020.
167 Suzanne Monyak, “Immigration Judges No Longer to be Evaluated by Case Numbers,” CQ News, October 20,
2021.
168 James R. McHenry III, EOIR Director, “No Dark Courtrooms,” PM 19-11, March 29, 2019.
169 Statement of American Immigration Lawyers Association Second Vice President Jeremy McKinney, in House
Committee on the Judiciary, Subcommittee on Immigration and Citizenship, The State of Judicial Independence and
Due Process in U.S. Immigration Courts, hearing, 116th Cong., 2nd sess., January 29, 2020 (hereinafter, “McKinney
2020”); Kevin Penton, “FOIA Documents Shed Light on EOIR Case Management,” Law360, June 6, 2018.
170 For more information about policies for processing migrants at the Southwest border in recent years, see CRS In
Focus IF11363, Processing Aliens at the U.S.-Mexico Border: Recent Policy Changes. For information about
unaccompanied children, see CRS Report R43599, Unaccompanied Alien Children: An Overview.
171 For example, see Vera Institute of Justice, “Vera Institute of Justice Voices Opposition to ‘Rocket Docket’ Court
Proceedings,” press release, May 29, 2021; McKinney 2020; Beth Fertig, “Fast-Tracking Families through Immigration
Court,” WNYC News, April 2, 2019; and American Immigration Council, A Guide to Children Arriving at the Border:
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From 2014 through 2017, EOIR implemented guidance to place unaccompanied children and
families with children on accelerated dockets (colloquially referred to as rocket dockets). The
guidance required master calendar hearings to be held within 21 days of an NTA filing for
unaccompanied children and within 28 days for families with children.172 Advocates opposed to
the accelerated docket argued that respondents were not given enough time to obtain counsel.173
TRAC found that among cases involving adults with children that were closed from July 2014
through September 2016, 70% of respondents were unrepresented. Those who were
unrepresented were unlikely to win their cases compared with those who had counsel.174 EOIR
later stated that the prioritization “coincided with some of the lowest levels of case completion
productivity in EOIR’s history and, thus, did not produce significant results.”175
In 2018, EOIR again implemented accelerated dockets in 10 immigration courts, requiring judges
to complete cases for family units within one year.176 Analysts noted a high rate of in absentia
removal orders for these cases, which some attributed to a rushed, error-prone process (e.g.,
sending hearing notices to the wrong addresses) and insufficient time to prepare for or travel to
hearings.177 EOIR ceased fast-tracking those cases during the pandemic.178
In May 2021, EOIR announced a Dedicated Docket for the expedited adjudication of cases for
families apprehended between POEs and placed in removal proceedings.179 Respondents are
enrolled in Alternatives to Detention programs.180 IJs must generally aim to issue decisions for
cases on the Dedicated Docket within 300 days of the master calendar hearing. Cases have been
assigned to 10 immigration courts.181 EOIR stated it “will only schedule these cases before
immigration judges who generally have docket time available to manage a case on that timeline.”
EOIR also stated that respondents on the Dedicated Docket will be provided with referrals for
legal services and that the 10 cities in which immigration courts will hear these cases have
established pro bono networks. DHS Secretary Alejandro Mayorkas and Attorney General

Laws Policies, and Responses, special report, June 2015.
172 Brian M. O’Leary, Chief Immigration Judge, “Docketing Practices Relating to Unaccompanied Children Cases in
Light of the New Priorities,” September 10, 2014; Brian M. O’Leary, Chief Immigration Judge, “Docketing Practices
Relating to Unaccompanied Children Cases and Adults with Children Released on Alternatives to Detention Cases in
Light of the New Priorities,” March 24, 2015; and Sarah Pierce, “As the Trump Administration Seeks to Remove
families, Due-Process Questions over Rocket Dockets Abound,” Migration Policy Institute, July 2019, (hereinafter,
“Pierce 2019”).
173 Safia Samee Ali, “Obama’s ‘Rocket Docket’ Immigration Hearings Violate Due Process, Experts Say,” NBC News,
October 27, 2016.
174 TRAC, With the Immigration Court’s Rocket Docket Many Unrepresented Families Quickly Ordered Deported,
October 18, 2016.
175 James R. McHenry III, EOIR Director, “Tracking and Expedition of ‘Family Unit’ Cases,” PM 19-04, November
16, 2018.
176 Locations included Atlanta, Baltimore, Chicago, Denver, Houston, Los Angeles, Miami, New Orleans, New York
City, and San Francisco. James R. McHenry III, EOIR Director, “Tracking and Expedition of ‘Family Unit’ Cases,”
PM 19-04, November 16, 2018.
177 Pierce 2019; and Katy Murdza, “Rushing Immigration Court Cases through ‘Rocket Dockets’ Deprives Families of
Due Process,” Immigration Impact blog, American Immigration Council, August 9, 2019.
178 Jean C. King, EOIR Acting Director, “Dedicated Docket,” PM 21-23, May 27, 2021.
179 Ibid.
180 Alternatives to Detention programs provide supervised release and enhanced monitoring for certain non-detained
migrants. For information about Alternatives to Detention, see CRS Report R45804, Immigration: Alternatives to
Detention (ATD) Programs.
181 Denver, Detroit, El Paso, Los Angeles, Miami, Newark, New York City, San Diego, San Francisco, and Seattle.
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Garland stated that the process will allow for more efficient and fair hearings.182 As of December
31, 2021, there were 54,250 cases on the Dedicated Docket; most were still pending, and there
were 1,838 initial case completions.183
Immigrant advocacy organizations and immigration attorneys expressed opposition to the
Dedicated Docket announcement over concerns about due process, such as whether the
accelerated timeline will allow respondents enough time to secure counsel and prepare a case.184
As of December 31, 2021, 80% of respondents on Dedicated Dockets did not have legal
representation.185
Migrant Protection Protocols (Remain in Mexico)
In addition to these recent iterations of accelerated dockets, DHS implemented the Migrant
Protection Protocols program (MPP, or Remain in Mexico) in 2019 to process certain Southwest
border arrivals. Under MPP, certain migrants seeking asylum are returned to Mexico while they
await their court dates.186 As part of MPP, EOIR opened so-called tent courts in certain Southwest
border cities. IJs have typically heard cases held in tent facilities via videoconference technology.
Some Members of Congress, advocates, immigration attorneys, and IJs raised due process
concerns over MPP and tent courts.187 Despite plans to schedule first hearings within 30-45 days
of enrollment, according to DHS, “enrollment quickly outpaced EOIR’s capacity to hear cases ...
even initial hearings were scheduled many months after enrollment.”188 Analysts found that under
MPP, backlogs increased more quickly for courts along the border—San Diego, CA, and El Paso,
San Antonio, and Harlingen in Texas—than for other immigration courts.189
DHS and EOIR suspended MPP hearings in response to the COVID-19 pandemic in March 2020,
announced the dismantling of MPP in February 2021, and formally ended the program in June
2021.190 Explaining the decision, DHS Secretary Mayorkas stated, “some removal proceedings
conducted pursuant to MPP were completed more expeditiously than is typical for non-detained
cases, but this came with certain significant drawbacks that are cause for concern.” Secretary

182 Department of Justice Office of Public Affairs, “DHS and DOJ Announce Dedicated Docket Process for More
Efficient Immigration Hearings,” news release, May 28, 2021.
183 EOIR, “Dedicated Docket Summary by Hearing Location,” Adjudication Statistics, January 2, 2022.
184 Sarah Betancourt, “DHS Launches Expedited Dockets for Recent Asylum-Seekers,” Law360, May 28, 2021; and
Amy Taxin and Elliot Spagat, “U.S. to Expedite Immigration Cases of Families on Border,” Associated Press, May 28,
2021.
185 EOIR, “Dedicated Docket Summary by Hearing Location,” Adjudication Statistics, September 20, 2021.
186 Some individuals were exempt from MPP, including unaccompanied children and Mexican nationals, and CBP
generally did not return non-Spanish speakers to Mexico.
187 For example, see Suzanne Monyak, “Border ‘Tent Courts’ Need Greater Oversight, Congress Told,” Law360,
October 8, 2019; Priscilla Alvarez, “More Immigration Judges to be Assigned to Cases at Tent Facilities,” CNN
Politics, December 6, 2019; Michelle Hackman, “U.S. Opens Immigration ‘Tent Courts’ to Public, The Wall Street
Journal, December 29, 2019; The Honorable Jimmy Panetta, “Congressman Panetta Travels to U.S.-Mexico Border to
Investigate Administration’s Migrant Protection Protocol,” press release, January 21, 2020; and Letter from Jerrold
Nadler et al., House Committee on the Judiciary, to Chad Wolf, Department of Homeland Security Acting Secretary,
January 14, 2020.
188 DHS, “Explanation of the Decision to Terminate the Migrant Protection Protocols,” memorandum, October 29,
2021.
189 Muzaffar Chisti and Jessica Bolter, “Court-Ordered Relaunch of Remain in Mexico Policy Tweaks Predecessor
Program, but Faces Similar Challenges,” Policy Beat, Migration Policy Institute, December 2, 2021.
190 American Immigration Lawyers Association, “Featured Issue: Migrant Protection Protocols (MPP),” AILA Doc.
No. 19091660, May 3, 2021.
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Mayorkas noted that MPP enrollees had high rates of in absentia removal orders (44%) and
questioned “whether the process provided enrollees an adequate opportunity to appear for
proceedings to present their claims for relief, and whether conditions faced by some MPP
enrollees in Mexico, including the lack of stable access to housing, income, and safety, resulted in
the abandonment of potentially meritorious protection claims.”191 A DHS Office of Inspector
General report found that out of a sample of 106 NTAs issued to respondents in MPP, 20
contained errors or did not meet statutory, regulatory, or DHS legal sufficiency standards.192 In
June 2021, EOIR issued guidance authorizing IJs and the BIA to reopen cases for respondents
who were in MPP “in a wide variety of circumstances, including circumstances presenting
fairness concerns.”193
In August 2021, however, a federal court ruled that DHS’s termination of MPP violated the
Administrative Procedure Act and ordered DHS to re-implement the program.194 In October 2021,
DHS announced it would restart the program to comply with the court order, including hiring
contractors to rebuild tent courts in Texas.195 In December 2021, DHS announced it had reached
an agreement with the Mexican government to restart the program, with a goal of having cases
completed within 180 days. Individuals returned to Mexico under the new iteration of MPP will
have their hearings heard in immigration courts in San Diego and El Paso, and in new
Immigration Hearing Facilities (IHFs) in Laredo and Brownsville, Texas, exclusively dedicated to
MPP cases.196 Twenty-two IJs have been assigned to hear MPP cases. The re-implementation of
the program has resurfaced humanitarian and due process concerns raised by advocates and the
United Nations High Commissioner for Refugees.197 From December 2021 through February
2022, CBP enrolled 1,569 individuals in MPP.198
Proposals to Change the Defensive Asylum Process
Some proposals seek structural changes to the asylum system as a way to reduce backlogs. One
involves overhauling the defensive asylum process. For years, observers have proposed
regulatory changes to the defensive asylum process that would channel adjudications through
USCIS asylum officers in non-adversarial settings at the time of the credible fear interview,
instead of immediately referring cases with positive credible fear findings to immigration courts.

191 Alejandro N. Mayorkas, DHS Secretary, “Termination of the Migrant Protection Protocols Program,” memorandum,
June 1, 2021, p. 4.
192 DHS Office of Inspector General, CBP Generally Provided Accurate Notices to Appear to Migrant Protection
Protocols Enrollees, but Could Improve Procedures to Reduce Future Errors, OIG-21-45, July 14, 2021.
193 EOIR, “Migrant Protection Protocols and Motions to Reopen,” PM 21-26, June 24, 2021.
194 Grace Dixon, “Texas Judge Reinstates Trump-Era ‘Remain in Mexico’ Policy,” Law360, August 16, 2021.
195 Camilo Montoya-Galvez, “U.S. Prepared to Restart ‘Remain in Mexico’ Border Policy in November,” CBS News,
October 15, 2021; and Sandra Sanchez, “Construction Underway on ‘Remain in Mexico’ Court Facility in Laredo,”
Border Report, October 19, 2021.
196 The new guidance states, “Inadmissible noncitizens encountered at the Southwest Border at ports of entry or within
96 hours of crossing between ports of entry are subject to placement in MPP if they are nationals of any country in the
Western Hemisphere other than Mexico.” As with the previous iteration of MPP, unaccompanied children are exempt
from processing under the new version of MPP, along with certain other persons, including those with “particular
vulnerabilities” related to mental or physical health, age, sexual orientation, and gender identity. See Robert Silver,
DHS Under Secretary, Office of Strategy, Policy, and Plans, “Guidance Regarding the Court-Ordered
Reimplementation of the Migrant Protection Protocols,” memorandum, December 2, 2021.
197 Ted Hesson and Dave Graham, “U.S. to Restart Trump-era Border Program Forcing Asylum Seekers to Wait in
Mexico,” Reuters, December 2, 2021.
198 DHS Office of Immigration Statistics, Migrant Protection Protocols Cohort Report, March 2022.
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Proponents maintain that USCIS asylum officers would be able to adjudicate cases more
expediently, reduce court workloads, minimize time respondents spend in detention, and reduce
detention costs.199
In August 2021, USCIS and EOIR published a joint notice of proposed rulemaking (NPRM) that
would implement such a system.200 The agencies issued an interim final rule (IFR) in March 2022
with a May 31, 2022, effective date.201 Under the IFR, upon the effective date, individuals with a
positive credible fear determination will have their defensive application for relief adjudicated by
a USCIS asylum officer rather than an IJ. The written record of a credible fear interview will
serve as an application for asylum. IJs will only review cases on appeal (i.e., those cases that are
denied by an asylum officer) rather than adjudicating asylum claims in the first instance. The IFR
states that this system will allow EOIR “to focus efforts on other priority work and reduce its
substantial current backlog” and address concerns related to long wait times:
The ability to stay in the United States for years waiting for an initial decision may motivate
unauthorized border crossings by individuals who otherwise would not have sought to enter
the United States and who lack a meritorious protection claim. This delay creates additional
stress for those ultimately determined to merit asylum and other forms of humanitarian
protection, as they are left in limbo as to whether they might still be removed and unable
to petition for qualified family members, some of whom may still be at risk of harm.
Many observers have raised concerns about this revised asylum process. Immigrant advocates
and attorneys, including the American Bar Association (ABA), have raised due process
concerns—including whether respondents would be detained, have access to counsel, or retain
their right to a full hearing before an IJ—and have challenged the proposed rule’s claims that
such a system would be more efficient.202 NAIJ was similarly critical of allowing USCIS asylum
officers to deny asylum applications, stating that although asylum officers are well positioned to
“find and grant those cases that are clearly meritorious” without full hearings, respondents would
be denied important protections such as the right to cross examine witnesses or to file objections
against evidence used against them.203 Some legal scholars argued that respondents’ inability to
have a full hearing is counter to congressional intent to protect asylum seekers from an expedited
removal process.204

199 United States Commission on International Religious Freedom, Report on Asylum Seekers in Expedited Removal,
Vol. I, 2005, p. 66; Doris Meissner, Faye Hipsman, and T. Alexander Aleinikoff, The U.S. Asylum System in Crisis:
Charting a Way Forward, Migration Policy Institute, September 2018; and ABA 2019, pp. 1-61–1-62.
200 DHS and DOJ, “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal,
and CAT Protection Claims by Asylum Officers,” 159 Federal Register 46924, 46909, August 20, 2021.
201 DHS and DOJ, “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal,
and CAT Protection Claims by Asylum Officers,” 87 Federal Register 18078-18226, March 29, 2022.
202 Ellen M. Gilmer, “Biden Moves to Reshape Path for Migrants Seeking Asylum,” Bloomberg Law, July 7, 2021;
Anna Gallagher, Executive Director, Catholic Legal Immigration Network, Inc., October 18, 2021, public comment on
Department of Homeland Security and Department of Justice, “Procedures for Credible Fear Screening and
Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers,” 159 Federal
Register 46906, August 20, 2021; Reginald M. Turner, ABA, October 19, 2021, public comment on DHS and DOJ,
“Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection
Claims by Asylum Officers,” 159 Federal Register 46906, August 20, 2021.
203 Mimi Tsankov, NAIJ President, October 19, 2021, public comment on DHS and DOJ, “Procedures for Credible
Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum
Officers,” 159 Federal Register 46906, August 20, 2021.
204 Michele R. Pistone, Professor of Law, Villanova University Charles Widger School of Law, October 21, 2021,
public comment on DHS and DOJ, “Procedures for Credible Fear Screening and Consideration of Asylum,
Withholding of Removal, and CAT Protection Claims by Asylum Officers,” 159 Federal Register 46906, August 20,
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Some immigration enforcement advocates also voiced opposition to the NPRM, arguing in part
that it would transfer an adjudicatory burden from EOIR to USCIS, which already has a backlog
of affirmative asylum applications and that it would incentivize unlawful migration. 205 Some
Members of Congress have claimed that the executive branch lacks jurisdiction to shift asylum
processing from EOIR to USCIS.206
Proposals for an Article I Court System
A number of stakeholders have advocated for Congress to move immigration courts out of DOJ
and create an independent Article I court (i.e., a court established under Article I of the U.S.
Constitution) within the legislative branch. Article I courts are not part of the federal judiciary but
were designed by Congress to operate without political influence.207
The American Immigration Lawyers Association (AILA), Federal Bar Association, ABA, NAIJ,
and other entities argue that the placement of the immigration courts system within DOJ and
under the authority of the Attorney General makes it susceptible to politicization and interference,
thereby undermining judicial independence and due process in the adjudications process and
creating conditions under which the backlog has grown substantially.208 In the 117th Congress, the
Real Courts, Rule of Law Act of 2022 (H.R. 6577) proposes to restructure immigration courts as
Article I courts.209
Opponents of independent immigration courts have raised concerns about constitutional
implications related to the executive branch’s authority over foreign policy, restructuring slowing
IJ hiring, and the potential for funding disputes that could leave the courts under-resourced.210
Other observers, while not opposed to independent courts, have posited that restructuring alone is
insufficient to solve the backlog.211
In 2017, GAO reviewed EOIR’s management of immigration courts and interviewed experts and
stakeholders about establishing an independent immigration court. Its report states:

2021.
205 Andrew Arthur, Robert Law, and Julie Axelrod, Center for Immigration Studies, October 18, 2021, public comment
on DHS and DOJ, “Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal,
and CAT Protection Claims by Asylum Officers,” 159 Federal Register 46906, August 20, 2021.
206 Mike LaSusa, “Biden Asylum Rule Spurs Criticism, Even from Supporters,” Law360, October 22, 2021.
207 Administrative Office of the U.S. Courts, Understanding the Federal Courts, at https://www.uscourts.gov/sites/
default/files/understanding-federal-courts.pdf. Currently, Article I courts include the U.S. Court of Appeals for
Veterans Claims, the U.S. Court of Appeals for the Armed Forces, and the U.S. Tax Court.
208 See, for example, ABA 2019; AILA, “AILA Policy Brief: Restoring Integrity and Independence to America’s
Immigration Courts,” January 24, 2020; Tabbador 2020; Letter from Robert Carlson, ABA President, Marketa Lindt,
AILA President, Maria Vathis, Federal Bar Association President, and A. Ashley Tabaddor, NAIJ President, to
Members of Congress, July 11, 2019.
209 The bill’s sponsor has stated that she does not believe an independent court would necessarily have an impact on the
backlog. Theresa Cardinal Brown (Host), This Week in Immigration, podcast, Bipartisan Policy Center, Episode 117,
April 4, 2022.
210 Suzanne Monyak, “Congress Mulls Independent Immigration Courts as Backlog Soars,” Roll Call, January 19,
2022; Testimony of Andrew R. Arthur, Center for Immigration Studies, in U.S. Congress, House Judiciary Committee,
Subcommittee on Immigration and Citizenship, For the Rule of Law, An Independent Immigration Court, hearing, 117th
Cong., 2nd sess. January 20, 2022.
211 For example, see Bipartisan Policy Center, “Submission for the Hearing Record,” U.S. Congress, House Judiciary
Committee, Subcommittee on Immigration and Citizenship, For the Rule of Law, An Independent Immigration Court,
hearing, 117th Cong., 2nd sess. January 20, 2022.
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Six of the ten experts and stakeholders we interviewed, including individuals affiliated with
professional legal organizations, academia, and the private immigration bar, supported
restructuring the immigration court system into a court independent of the executive
branch. Two of the experts and stakeholders we contacted supported a new independent
administrative agency within the executive branch. One of the experts and stakeholders
supported the hybrid scenario, placing trial-level immigration judges in an independent,
administrative agency within the executive branch, and an appellate-level tribunal outside
of the executive branch.212
Reasons cited in favor of such restructuring included increasing the public’s perception of the
courts’ independence, providing IJs and BIA members greater judicial autonomy, improving the
professionalism or credibility of court representatives, and improving organizational capacity or
accountability. Reasons for opposing restructuring included that it would not address systemic
management challenges—including the backlog of pending cases, potential hiring delays, and
administrative challenges. GAO did not take a position on restructuring proposals.
Conclusion
In removal proceedings, IJs are the neutral arbiters who determine whether noncitizens are
removable from the United States and eligible for relief from removal. Immigration courts are
inextricably intertwined with other elements of the immigration system; particularly, interior and
border enforcement. Each year, DHS files hundreds of thousands of cases with the immigration
courts, which must be adjudicated by fewer than 600 IJs.
Currently, a growing backlog of pending cases presents a considerable challenge for immigration
courts. As a result, decisions regarding whether noncitizens may remain in the United States or
must be removed from the country may be delayed for years. This raises concerns about whether
migrants will appear for their hearings in the meantime and if respondents being allowed to
remain in the United States while their cases make their way through the process encourages
unauthorized migration. It also presents questions of due process for those respondents, many of
whom are unrepresented.
A number of factors have led immigration courts to be stretched beyond their adjudicatory
capacity: an inadequate corps of IJs relative to levels of migration to the border and related
immigration enforcement; claims for humanitarian protection among arriving migrants, which
require formal removal proceedings; and a pandemic that has forced the suspension of hundreds
of thousands of hearings in recent years.
Proposed solutions to the backlog are multiple and wide-ranging. Some have broad support;
particularly, hiring more IJs. EOIR has increased its hiring substantially in recent years and
Congress has appropriated funding for this purpose. Despite record levels of IJ hiring, CRS
projects that, holding current trends constant, staffing levels will be insufficient for adjudicating
the existing backlog and the cases DHS will continue to file in coming years. Additional
approaches are more contested. At the IJ level, proposals range from allowing judges to
administratively close low-priority cases to holding IJs accountable to case completion quotas and
other performance measures. At the agency level, there have been debates over whether it is
efficient to prioritize certain cases on specified dockets and accelerate proceedings for
respondents held in Mexico under the MPP. System-wide approaches include changing the
defensive asylum system to engage USCIS asylum officers in first-line defensive asylum

212 GAO, Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long-Standing Management and
Operational Challenges, GAO-17-438, June 2017, p. 80.
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adjudications and proposals to create Article I immigration courts independent of the executive
branch, which would require congressional action.
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Appendix.
Table A-1. Acronyms
Acronym
Definition
ABA
American Bar Association
BIA
Board of Immigration Appeals
CAT
Convention Against Torture
CBP
Customs and Border Protection
DHS
Department of Homeland Security
DOJ
Department of Justice
EOIR
Executive Office for Immigration Review
ERO
Enforcement and Removal Operations (ICE)
GAO
U.S. Government Accountability Office
HHS
Department of Health and Human Services
ICE
Immigration and Customs Enforcement
IFR
Interim Final Rule
IJ
Immigration Judge
INA
Immigration and Nationality Act
LPR
Lawful Permanent Resident
MTR
Motion to Reopen or Motion to Reconsider
NAIJ
National Association of Immigration Judges
NPRM
Notice of Proposed Rulemaking
NTA
Notice to Appear
OCAHO
Office of the Chief Administrative Hearing Officer
OCIJ
Office of the Chief Immigration Judge
OFO
Office of Field Operations (CBP)
OPLA
Office of the Principal Legal Advisor (ICE)
POE
Port of entry
TVPRA
Trafficking Victims Protection Reauthorization Act
USBP
U.S. Border Patrol (CBP)
USCIS
U.S. Citizenship and Immigration Services

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Author Information

Holly Straut-Eppsteiner

Analyst in Immigration Policy

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
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