Andrew Arthur: The Immigration Court Backlog (Finally) Falls

For the first time in 17 years, more asylum cases are closing than opening—though more can and should be done to narrow the gap.

Perhaps the most influential force in the 2024 presidential election was voters’ smoldering anger toward the broken U.S. immigration system and their accompanying desire to see our border secured. But while it doesn’t get the most press, the massive immigration court backlog is the thorniest issue imperiling this goal. The mechanics of deporting illegal aliens are more complicated than most people understand. Before repatriating aliens with deportation orders, the Department of Homeland Security must obtain removal orders from a tiny pool of approved immigration judges. This lack of decision makers has caused adjudications to slow to a crawl in recent years.

In the meantime, aliens establish what are known as “equities,” meaning jobs, homes, and families, that make deportations more difficult. President Trump’s return to office, however, has allowed our nation’s immigration judges to do something they haven’t accomplished since 2008: decrease the backlog by closing cases faster than new ones are added.

This is a subject I know well, having served as an immigration judge between 2006 and 2015. Here’s how it happened, and what it means going forward.

Behind The Curtain

Immigration courts are effectively administrative tribunals, overseen, along with the appellate Board of Immigration Appeals (BIA), by a Department of Justice component known as the Executive Office for Immigration Review (EOIR).

Why DOJ and not DHS, which handles most immigration-related matters? Because section 103(a)(1) of the Immigration and Nationality Act authorizes the attorney general, not the DHS secretary, to make “determination[s] and ruling[s] . . . with respect to all questions of [immigration] law,” and attorneys general have long subdelegated that authority to immigration judges and the BIA.

Congress has also directly delegated certain duties to immigration judges, most notably in the Immigration and Nationality Act’s Section 240, which instructs judges to “conduct proceedings for deciding the inadmissibility or deportability of” aliens, a process known as removal proceedings.

The judges make two, and sometimes three, separate legal and factual determinations in the course of removal proceedings. The first is whether the alien (deemed a “respondent”) is removable as DHS has charged, and the second is whether removable respondents are eligible for protections, benefits, or waivers (otherwise known as “relief”) enabling them to remain here.

Determining removability is usually straightforward, but relief determinations can take hours, and sometimes require resetting the case—and at times more than once—to a future date.

The third determination is whether respondents should be released on bond, which can prove consequential. Many criminal respondents and illegal entrants aren’t eligible for bond, but in all cases bond proceedings are informal—meaning anything relevant to the alien’s risk of flight and potential danger to the community can be considered—and not recorded or transcribed. Judges usually must keep what they’re told at bond arguments separate from the rest of the case.

Removability and relief determinations, by contrast, are recorded and transcribed when necessary for appeals. Immigration judges explain to aliens their rights in those proceedings, which include representation by counsel (not paid for by the government) and the right to appeal adverse decisions to the immigration appeals board, followed by a plain-language explanation of the charges against them. Interpreters are available at all stages of the proceedings.

If the person claims to be a citizen or refuses to plead, DHS, which is represented by a U.S. Immigration and Customs Enforcement (ICE) attorney, bears the initial burden of establishing that they are in fact an alien. And if the person has been formally admitted to the United States, ICE also bears the burden of establishing by clear and convincing evidence that he or she is deportable. Conversely, respondents who haven’t been admitted must prove clearly and beyond doubt that they’re entitled to be admitted.

Most respondents admit both that they’re aliens and that they’re removable as charged, then seek relief from deportation, usually through asylum. Respondents alone bear the burden of proving they’re eligible for such relief.

Hearings can be emotionally taxing, particularly as asylum applicants recount inhumane and humiliating treatment, or when separation from loved ones living in the U.S. is at issue. Telling someone you believe they’re not credible or that they have to return to war, conflict, or poverty isn’t any easier.

The general rule is for judges to consider all evidence provided it’s probative, meaning relevant to contested facts, along with the court’s consideration of whether it is fundamentally fair in that it doesn’t deprive the respondent of due process. The hearings can be time-consuming, and many respondents—particularly those in detention—simply concede their removability and accept removal orders.

But most aliens in removal proceedings are “non-detained,” meaning not in government custody, and thus many of them simply seek repeated continuances in order to extend their unlawful presence in the U.S. As the Supreme Court has recognized: “One illegally present . . . who wishes to remain . . . has a substantial incentive to prolong litigation in order to delay physical deportation for as long as possible.”

Yet denying continuances is tricky for a judge. By regulation, continuances may be granted “for good cause,” but that term isn’t otherwise defined and federal courts have held that denials deprived aliens of due process—a black mark no administrative adjudicator wants to receive.

Mine was a “detained court,” and because respondents were in ICE custody they had no incentive to delay the process. My colleagues in non-detained courts, however, constantly had to choose between administrative case completion goals and potential threats they’d deprived aliens of due process by denying continuances.

And because they were detained, most aliens I ordered removed were deported, which often wasn’t true in non-detained cases where the motivation to delay removal by filing appeals was higher and ICE lacked the resources to subsequently arrest and deport aliens with deportation orders. That lack of resources is the reason you’ve read about aliens remaining in the United States for years even after receiving a final order of removal from an immigration judge—in fact there are more than 1 million such cases at the moment.

However, ICE now has more resources thanks to H.R. 1, otherwise known as the “One Big Beautiful Bill Act.” It provides DHS with $2 billion for enforcement and removal activities, though with more than a million aliens under final orders on its non-detained docket, it will take ICE a while to catch up.

Shrinking The Backlog

Which brings me to our extensive nationwide immigration court backlog, which stood at nearly 3.9 million pending cases at the end of fiscal 2024.

At that point, 735 immigration judges were on the bench, and between retirements and Trump administration dismissals, there were just 635 such judges as of late June 2024 with even fewer still serving today.

Despite the decline in the sheer number of judges, the backlog of active cases fell by more than 87,000 between the end of fiscal 2024 and the third quarter of 2025, which was the first time the figure had dropped since 2008. The biggest reason for the decrease is simple: the border is more secure under Trump, and fewer new cases are being added to the dockets.

In the first nine months of fiscal 2025, immigration judges completed 588,000 pending cases while receiving just over 448,000 new ones. By contrast, in 2024 there were 1.08 million more cases opened than closed.

For several reasons, that decline will likely continue, though more can be done to close the gap further.

First off, the OBBBA provides the EOIR with $3.3 billion to hire new immigration judges and staff. The legislation spells out explicitly that these funds are intended “to address the backlog of petitions, cases, and removals.” The funding is long overdue. However, for reasons Congress has failed to explain, the OBBBA caps the number of immigration judges at 800, hundreds fewer than needed given the size of the U.S. immigration system.

Given there are nearly 3.9 million pending immigration court cases, if 815 new judges were hired, each judge would have an average docket of 2,250 cases. That’s not an ideal load, but it is more manageable than the average 5,500 cases immigration judges must handle at present.

Related to that, the DOJ recently expanded the class of lawyers eligible for appointment as temporary immigration judges who can serve as a bridge until the EOIR can hire and train the 800 “real” judges the bill authorizes.

Since 2014, DOJ has allowed retired judges and department attorneys with ten years of immigration law experience to serve in a temporary capacity, though few took the department up on the offer. But the Department of War has answered the most recent call, authorizing four groups of 150 of its attorneys to serve 179-day shifts as temporary judges.

Critics, citing the complexity of immigration law, have argued those fill-ins won’t be effective and could slow adjudications by impeding, you guessed it, due process. But as I’ve explained, such concerns are overblown. Most determinations are straightforward, immigration judges are assisted by attorneys for the parties, and temporary judges will receive the same training as their full-time counterparts.

Trump is not slowing down on border security. While some of the administration’s work to halt migrant entries face legal challenges, the Supreme Court has deferred to Trump’s border efforts in the past, and the Immigration and Nationality Act gives the president expansive border security authorities. And recent rulings by the attorney general and the Board of Immigration Appeals enable immigration judges to complete cases more quickly, particularly those involving legally questionable and non-meritorious asylum claims.

Asylum is limited in scope, but applicants have nevertheless sought protection based on economic conditions and common criminality abroad that are not covered by the asylum statute, and some sympathetic judges have granted such claims in the past. These claims can be more easily adjudicated now, and ICE attorneys have been given greater latitude by the Trump administration to appeal older, erroneous decisions. By issuing “bright line” rules limiting continuances, the attorney general could make the adjudication process even quicker.

Our immigration system is only as effective as our immigration judges’ capacity to complete cases, and thanks to recent Trump administration policy changes the immigration court backlog has begun inching in the right direction. While it will take time and possibly additional legislation to help get the caseload down to a reasonable level, there’s reason for optimism on this front for the first time in a long time.