Removal Proceedings Overview

Immigration court proceedings 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.¹ The most common immigration court proceedings are removal proceedings under Section 240 of the Immigration and Nationality Act (INA), also known as formal removal proceedings.² Removal proceedings commence when component agencies within the Department of Homeland Security (DHS), the executive department responsible for enforcing immigration law, charge a foreign national with an immigration violation and file a Notice to Appear (NTA) in immigration court.³

DHS agencies may charge foreign nationals at the U.S. border or in the interior of the country with grounds of inadmissibility⁴ or deportability.⁵ Three DHS agencies issue NTAs:

• Customs and Border Protection (CBP), which is responsible for border security at ports of entry (Office of Field Operations) and between ports of entry (U.S. Border Patrol);
• Immigration and Customs Enforcement (ICE), which is responsible for interior immigration enforcement; and
• U.S. Citizenship and Immigration Services (USCIS), which adjudicates applications for naturalization and immigration benefits (e.g., petitions and applications for immigrant and nonimmigrant visas).

EOIR's immigration judges (IJs) adjudicate the removal cases that DHS agencies file with immigration courts. IJs are attorneys appointed by the Attorney General as administrative judges.⁶ During removal proceedings, an IJ determines whether a foreign national, referred to as a respondent, is removable and if the respondent is eligible for protection or relief from removal (e.g., asylum) for which he or she has applied.⁷ Either party may appeal an IJ's decision to EOIR's appellate division, the Board of Immigration Appeals (BIA).⁸

The number of removal cases pending in immigration courts (hereinafter, backlog) has grown substantially in recent years and has drawn attention to IJ hiring. Although EOIR has steadily increased its IJ corps every year since FY2015, the backlog has continued to grow. It quadrupled from FY2013 to FY2022, and reached nearly 2 million cases at the end of the second quarter of FY2023, an all-time high.⁹ EOIR has stated that the backlog is "the largest single issue facing the immigration courts today."¹⁰ Contributing factors in recent years include high levels of migration to the U.S.-Mexico border, the number of IJs on staff to adjudicate cases relative to the number of removal cases filed by DHS, and hearing postponements during the COVID-19 pandemic.¹¹

Interested parties—lawmakers, the IJ union, immigration attorneys, and other observers—have long suggested reforms to the immigration courts, including those that propose to address its case backlog.¹² For example, DOJ leadership during the Trump Administration and some lawmakers in the 118^th Congress have supported holding IJs to certain case-completion performance metrics.¹³ Other lawmakers, EOIR, and other observers have proposed increasing EOIR's adjudicatory capacity by expanding courtroom space, staff, and the number of IJs available to adjudicate cases. This report provides an overview of trends in EOIR's caseloads, case completions, and IJ hiring and staffing levels. It also provides CRS projections of the impact of different IJ hiring scenarios (0 to 1,000 new IJs, in increments of 100) on the pending cases backlog over the next 10 fiscal years.

Caseload Trends

IJs have jurisdiction over removal cases once a DHS agency files an NTA in immigration court. From FY2006 to FY2018, EOIR's annual case receipts fluctuated but were relatively consistent (averaging 238,363 a year) until they increased sharply in FY2019 (547,308) (Figure 1). Case receipts then declined in FY2020 and FY2021 during the COVID-19 pandemic. In FY2022, case receipts increased to the highest level in the agency's history (707,504) amid record-high levels of migrant encounters at the Southwest border.¹⁴ In its FY2024 budget request, EOIR stated that the number of cases received in the first quarter of FY2023 (184,724) puts the agency "on track to match or exceed FY2022 filing heights."¹⁵ More recently, EOIR Director David Neal stated that immigration courts are on track to receive 1 million new cases in FY2023.¹⁶ As of the end of the first half of FY2023, EOIR has received 428,702 cases (Figure 1).

Cases pending in immigration courts have increased each year since FY2006 (when they numbered 168,827). The growth in pending cases has been especially pronounced since FY2016. The backlog exceeded 1 million cases for the first time in FY2019 and reached 1.98 million cases at the end of the second quarter (Q2) of FY2023.¹⁷

Figure 1. Initial Cases Received, Pending (Backlog), and Completed, FY2003-FY2023 Q2

Source: Created by CRS, based on the following sources. Cases received and completed: DOJ, EOIR, "New Cases and Total Completions – Historical," Adjudication Statistics, April 21, 2023; cases pending (FY2006-FY2007): TRAC, "Immigration Court Backlog Tool," https://trac.syr.edu/phptools/immigration/court_backlog/; cases pending (FY2008-FY2023): DOJ, EOIR, "Pending Cases, New Cases, and Total Completions," Adjudication Statistics, April 21, 2023. Note: FY2023 represents six months, through Q2 only, and is shown in the figure with dashed lines.

Rate of Case Completions

The proportion of initial case completions¹⁸ by immigration judges can be measured as a completion rate by dividing those totals among all cases EOIR received in a given year. Since FY2007, EOIR's rate of case completions has generally declined (Figure 2), which suggests that EOIR has been increasingly unable to adjudicate the volume of cases it receives from DHS. Some observers attribute this decline to an increased case volume in recent years in addition to other factors, including COVID-19-related court closures, newly hired judges completing fewer cases as they learn the job, an inadequate volume of support staff relative to the number of IJs, and changes in the circumstances of respondents facing removal (e.g., higher numbers of children, families, and asylum seekers, whose cases may take longer to adjudicate).¹⁹

Figure 2. Case Completions as a Percentage of Case Receipts, FY2003-FY2022

Source: Created by CRS, based on DOJ, EOIR, "New Cases and Total Completions–Historical," Adjudication Statistics, April 21, 2023. Notes: Percentages exceed 100% when the number of case completions is greater than the number of cases received in a given fiscal year. Cases completed in a given fiscal year may have been filed in previous fiscal years.

IJ Staffing Levels and Hiring Efforts

EOIR and other observers have identified the number of IJs on staff as a critical resource shortage for immigration courts. During a DOJ-wide hiring freeze from FY2011 through FY2014, the number of IJs on staff at EOIR decreased from 273 to 249.²⁰ Over this period, pending cases increased from approximately 298,000 to 430,000, even though the annual number of cases received did not increase.

More recently, DOJ increased IJ hiring. In FY2022 (the most recent full year of data), EOIR hired 104 IJs, its largest annual number of hires on record. EOIR had 649 IJs on staff at the end of FY2023 Q2 (Figure 3).

Despite this level of hiring, the ratio of the number of pending cases to IJs has generally increased. For example, in FY2014 there were 1,728 pending cases for each IJ (430,229 total pending cases divided by 249 IJs). In FY2023 Q2, there were 2,844 pending cases per IJ (1.98 million pending cases divided by 649 IJs). (Note that the actual number of cases on a given IJ's docket varies.)

EOIR has identified challenges with IJ hiring. The hiring process can be time intensive; EOIR has stated that vetting and hiring IJs has historically taken more than one year.²¹ Recently, however, the agency has stated that it has improved its process and reduced its hiring time by approximately 50%.²² Nevertheless, new judges require time to learn on the job, which impacts case completion rates.²³

Attrition also impacts the IJ corps. In recent years, even as EOIR hired more IJs, the attrition rate doubled due to higher numbers of retirements and separations (from 12 IJs annually to an average of 26 since FY2017).²⁴

Figure 3. Immigration Judges Hired, Departed, and On Board, FY2013-FY2023 Q2

Source: Created by CRS, based on DOJ, EOIR, "Immigration Judge (IJ) Hiring," Adjudication Statistics, April 2023. Notes: Departures have been imputed by CRS (calculated as the sum of the number of IJs on board at the end of the previous fiscal year and hires in the given fiscal year minus the IJs on board at the end of the given fiscal year). FY2023 represents a partial year through Q2 only. EOIR hired no immigration judges in FY2014.

For FY2024, EOIR requested $367 million in funding for staff to reduce the backlog; specifically, for 150 new IJ teams (includes 750 attorneys and associated support staff), as well as attorney advisors, legal and professional administrative staff, and related space and equipment.²⁵

Projected Impact of Immigration Judge Hiring on Pending Cases Backlog

Table 1 and Figure 4 show one potential approach to estimating the annual size of the pending cases backlog under different IJ hiring scenarios for 0-1,000 new IJs in increments of 100 for each fiscal year starting with FY2023 Q2 and continuing through FY2033.

The projections rely on average annual case receipts and average annual case completions per IJ from five recent full fiscal years: FY2017, FY2018, FY2019, FY2020, and FY2022, using data from EOIR's adjudication statistics. CRS excluded FY2021, an anomalous year on these measures because of the COVID-19 pandemic. That year, average case completions per IJ were much lower than in other recent years.²⁶

To project the resulting backlog size under different hiring scenarios, CRS multiplied the number of judges by average cases completed annually per IJ to estimate total annual case completions.²⁷ CRS then subtracted this estimate from average annual new cases to arrive at the net estimated change in the backlog through FY2033.

Based on the assumptions and averages used in the analysis, hiring 300 or more additional IJs (bringing the total number of IJs to 949) would begin to reduce the backlog—meaning that at this level, the IJ corps would be expected to complete more cases than EOIR receives in a given fiscal year. Hiring 300 IJs, however, likely would not fully clear the backlog in the observed 10-year timeframe (i.e., by FY2033).²⁸ Under these projections, an additional 700 IJs (1,349 total) would be the minimum number needed to fully clear the backlog by FY2032, holding all other factors constant.

The assumptions used to develop these projections, which are based on the most recent full years of data, may not hold true in future years and are therefore subject to error. For example, as mentioned previously, EOIR has indicated that FY2024 case receipts are on track to reach 1 million, far higher than the five-year average (447,187). If such case receipt trends continue, these projections may underestimate substantially the number of IJs needed to reduce the backlog.²⁹ Future case receipts may vary significantly as the result of shifts in immigration and enforcement trends (e.g., the number and characteristics of migrant arrivals at the Southwest border and/or the enforcement priorities of a particular administration). Therefore, CRS cannot predict future outcomes with certainty. EOIR has noted that the number of removal cases it receives are largely outside its control³⁰ and that IJ staffing alone may not be sufficient to address the backlog in the short term.³¹

CRS's estimate of case completions per IJ—the number of annual case completions divided by the number of IJs on staff—may also be imprecise because it can account only for the number of IJs on staff at the end of the fiscal year. In addition, there is variation across cases, including the length of time needed to adjudicate them. These projections also do not account for IJ attrition. Other approaches may yield different results.

(this figure is interactive in the HTML version of the report)

Source: Created by CRS, based on DOJ, EOIR, "Pending Cases, New Cases, and Total Completions," Adjudication Statistics, April 21, 2023, and "Immigration Judge (IJ) Hiring," Adjudication Statistics, April 2023.

Notes: Averages exclude FY2021 due to abnormally low case completions related to the COVID-19 pandemic. IJ estimates are based on the number of IJs on staff in the second quarter of FY2023 (Figure 3) and do not account for expected attrition over time. Backlog estimates under different IJ hiring scenarios are based on recent data. Backlog estimates are rounded to the nearest whole number.