Overwhelmed courts are moving at snail speed, not able to keep up with demand of cases

New migrants pouring into the U.S. after the Biden administration let a COVID-19 restriction called Title 42 expire last week will not break the nation’s stretched court system. The system is already shattered, according to several former judges, immigration experts, and Department of Homeland Security data.  

The average wait time for a “Notice to Appear” before a judge at one of the nation’s 66 immigration courts is now four and a half years. In some cities it is much longer. In New York City, new migrants do not have to appear in court until 2032. This growing backlog creates an incentive for more people to cross the border and request asylum as each new case pushes assigned court dates further into the future. In the meantime, many migrants are permitted to live and work in the United States.  

“It’s well past broken,” said Art Arthur, a former immigration court judge and now a resident fellow at the conservative Center for Immigration Studies. “The courts weren’t set up for this. When you don’t do anything at the front end, the back end just collapses. Everybody who shows up now knows the chances are 90 percent or better you’re going to be here indefinitely or forever.”  

The impact on the courts of the expiration of Title 42 – a restriction former President Trump implemented to expel migrants, even if they were seeking asylum – is one of several unknowns the U.S. will confront in the current wave of migration. The cost to taxpayers is also unclear, though complaints have been mounting in border states that must absorb the crush and in self-proclaimed sanctuary cities that are struggling with pledges made years ago to house and care for migrants.  

Federal agencies charged with handling immigration ‒ including the Department of Homeland Security, the Executive Office of Immigration Review, and Immigration and Customs Enforcement (ICE) – did not respond to requests for comment or declined to answer questions on the record.  

But a Feb. 18, 2023, internal ICE document obtained by RealClearInvestigations listing the top 10 backlogged locations shows court dates are already far in the future.  

The document shows New York leading the list as “fully booked through October 2032.” That time lag tops Florida locations, booked until 2028; Atlanta and San Antonio, where a migrant in the system does not have to appear until 2027; and a handful of other cities such as Chicago, Baltimore, Milwaukee, and Indianapolis, where the backlog carries into 2026. 

Early estimates are that at least 11,000 arrivals could pour into the U.S. every day with Title 42 lifted. But much smaller totals have clogged the system for years. Baltimore, for instance, is “mostly booked” with fewer than 3,500 people, while Atlanta has a four-year wait time for just 1,757 people, according to ICE’s February figures. 

Critics note the sharp disconnect between the estimated number of migrants who have crossed the border since Biden became president – more than 5 million – and the relatively small numbers of people with court dates. In theory, all migrants, whether they request asylum or not, would be assigned a court date. But the Biden administration has begun a policy of “paroling,” i.e. releasing, many encountered migrants with the expectation they would report to immigration offices at their final destinations. 

That leaves most of the millions floating, according to those who study the issue closely. 

“Both parolees and asylum applicants are eligible for work authorization,” said Rosemary Jenks, director of government affairs for NumbersUSA, a group pushing for tighter immigration policies. “Despite that, a huge number of those who say they’re here for asylum never actually file an asylum application, so they live and work here illegally.” 

As more migrants arrive, court backlogs will undoubtedly be pushed even further into the future. That in turn may prompt more migrants to work through the system, further burdening an overwhelmed system. The delays already in place make it all but impossible for judges to hear cases properly, according to Arthur and another former immigration court judge in Texas, Tony Rogers. Even if somehow the courts were able to triple or quadruple the roughly 600 judges now on the bench, the system cannot keep up with the crush of people crossing the southern border. 

“The judges can’t do anything more than saw the wood in front of them,” Rogers said. “It’s a dysfunctional system from top to bottom that is way past broken. This is exactly why all of them are coming – they know you can’t meaningfully try a case five years or more after a claim, and if you buy time long enough they’ll give you something. You’re not going to get deported and sent back.” 

The average pending docket for Texas immigration court judges has skyrocketed to 8,000 from the 1,800 average that prevailed when Rogers left the bench 12 years ago, he said, and those figures do not reflect the reality within the U.S. at the moment, with its estimated population of 11.35 million undocumented immigrants. 

“It’s actually even worse than what they’re telling you,” Rogers said. “These numbers only reflect people in the system. If they filed NTAs” – notices to appear – “for all the people that have entered, it would be even worse. No one can give you a statistic for that.” 

Beyond the overwhelmed court system, the financial strain on taxpayers continues to grow. Sanctuary cities like New York, Chicago, and Washington, D.C. are struggling to meet the cost of just small fractions of the people swarming across the southern