The following are excerpts from a TRAC “sober” analysis of asylum cases, published December 22, 2022
The latest available data reveal that the number of asylum seekers waiting for asylum hearings in the U.S. has now reached at least 1,565,966 individuals. [Up from about 200,000 at just before Trump took office and 600,000 just before Biden took office.] Half are in Immigration Courts within the Justice Dept, half within the Customs and Immigration Service in the State Dept.
Asylum backlogs are not new. Yet in recent years, with political, economic, and environmental instability in places like Mexico, Venezuela, Haiti, Central America, Ukraine, and elsewhere, the United States has seen a growth in migrants’ needs that outpace even the growing number of Immigration Judges and asylum officers added by both Democratic and Republican administrations.
In this report, TRAC aims to contribute to the public’s understanding of the current state of the asylum system by providing a detailed portrait of the nearly 800,000 cases in the asylum backlog before the Immigration Courts.
At the end of FY 2012, over 100,000 asylum cases were pending in the Immigration Court’s backlog. A decade later, the backlog had grown over 7-fold to over 750,000 cases in September at the end of FY 2022. During October and November 2022 (the first two months of FY 2023), the Immigration Court’s asylum case backlog grew by more than the growth during the entire last year of the Obama administration in FY 2016.
A major political debate, one which is playing out in part in the U.S. federal courts, continues to rage over whether asylum seekers should be detained while their cases are waiting to be heard. As a practical matter, Immigration and Customs Enforcement currently [December 2022] is detaining just 29,000 immigrants. Detaining everyone in just the current Immigration Court asylum backlog would require more than 27 times current detention numbers. Today only 0.3 percent of those in the current asylum backlog are detained. See Table 3 and Figure 4.
While most immigrants in the asylum backlog are not detained, a growing segment are being electronically monitored under ICE’s Alternatives to Detention (ATD) program. As of June 30, 2022, a total of 16,569 families were being actively monitored while they were awaiting their hearing and decision. Given that only one member of a family and not all family members likely are being monitored, this implies that virtually all of the 110,000 asylum seekers assigned to the Dedicated Docket are (or were) subject to ATD monitoring.
Without representation, many asylum seekers are unable to complete the paperwork needed to file a formal asylum application. However, within the current asylum backlog, one in five (21%) are recorded as unrepresented. This ratio appears to greatly overstate the actual percentage who are unrepresented. It is possible that a large number of asylum seekers are recorded as unrepresented in the Court’s files even when the asylum application was actually prepared and submitted with the assistance of an attorney.
There is a fairly even split between male and female asylum seekers. About 3 out of 10 are children under 18 years of age. The children who make up the Court’s asylum backlog almost all enter as part of a family group. This is because for most unaccompanied children their asylum applications are filed with the USCIS under special provisions of the law and not with the Immigration Court.
Countries of origin
Asylum seekers recorded as speaking 418 different languages from 219 different countries plus those who are stateless or from countries that no longer exist are in the current Immigration Court’s asylum backlog 59% come from just five countries. Guatemala has the largest number of asylum seekers (111,184) in the current Court’s backlog. This is followed by Honduras with 101,195 and El Salvador with 97,260. Together, these three countries from the so-called Northern Triangle comprise 39 percent of the Court’s asylum backlog. Mexico with 82,837 asylum seekers and Venezuela with 71,991 complete the list of the top five.
Beyond these five dominant players, there are an additional nine countries with at least 10,000 asylum seekers in the current backlog. Driving the increasing asylum backlog have been the increasing numbers not just from Venezuela which is in the top five, but from Cuba and Brazil who are part of this longer nationality list. See Figure 6 and Table 6 for figures on the changing composition of asylum seekers from these fourteen countries.
Historically, Immigration Courts in California and New York have had the largest asylum caseloads and decided the largest numbers of asylum claims. Over the years, these two states have experienced more asylum cases filed than any other locales. During FY 2022, for example, Immigration Courts in these two states accounted for just under half (48%) of all asylum cases decided on their merits.
But the location of asylum backlogs has been undergoing change as the location of new asylum filings has shifted. Florida has seen explosive growth in asylum filings. So has Massachusetts. These growth patterns have been driven in large part by shifts in the nationality groups seeking asylum in this country. Asylum seekers from Venezuela and from Cuba – two nationalities that have seen the largest rise – have tended to head to Florida. Most Brazilians have sought to start their new life in Massachusetts. And largely as a result, the asylum backlogs in these two states have experienced the largest growth.
There is no simple answer to the question of how long asylum seekers have to wait before they can have their claims heard and decided. Under Biden administration initiatives, including the Dedicated Docket and the Asylum Officer Rule initiatives, some newly arriving asylum seekers are being moved to the head of the line and their hearings expedited. Indeed, criticism is growing that cases are being heard too quickly before the asylum seeker has a chance to locate an attorney, or for the attorney to prepare adequate support for the asylum claims.
For most others who are not detained, especially those who entered the backlog queue a while ago, the wait can be very long. An estimate of the average backlog wait times from when the case was filed in the Immigration Court to when their asylum hearing will be scheduled and their claims heard is currently 1,572 days, or 4.3 years. Only 43% of individuals in the current asylum backlog have an actual individual proceeding scheduled to hear the evidence on the merits of that asylum seeker’s claims.