Data from the Executive Office for Immigration Review–the office that oversees our nation’s Immigration Courts–is notoriously unreliable. Nevertheless, we have to use what’s available. In that spirit, let’s take a look at EOIR’s statistics for Fiscal Year 2023 (which cover the period from October 1, 2022 to September 30, 2023) and see what we can learn.
The biggest development during FY 2023 was the rapidly growing case load in Immigration Court. At the beginning of the fiscal year, there were 1.8 million cases pending. At the end of the fiscal year, there were nearly 2.5 million cases pending. This represents the largest increase in the history of EOIR. And since the beginning of FY 2024 (on October 1, 2023), the numbers have only increased–surpassing 3 million cases last December (this, despite record hiring at EOIR that brought the total number of judges to 734 by the end of FY 2023).
Not all of the pending cases are asylum. According to EOIR’s numbers, at the end of FY 2023, there were 937,611 pending asylum applications in Immigration Court. That’s actually down slightly from the last fiscal year, when there were 943,648 applications pending, which I guess represents progress of a sort. Still, it’s nearly ten times as many applications as were pending in FY 2008 (94,386).
Most new asylum applications are “defensive.” These are applications filed by people in Immigration Court (as opposed to applications filed at the Asylum Office and referred to court). I suspect that the large majority are filed by people who arrive at the border, get admitted and scheduled to see a judge, and who then file for asylum. In FY 2023, asylum seekers filed 465,874 defensive applications in Immigration Court. The next busiest year for defensive cases was FY 2022, when “only” 236,547 cases were filed. Prior to that time, the busiest year for defensive asylum applications was FY 2020, when 158,208 cases were filed. The rapid uptick over the last few years helps illustrate the challenge for Immigration Courts–how to adjudicate so many often-complex asylum cases with the limited resources available.
The number of affirmative asylum applications (cases filed at the Asylum Office and then denied and referred to court) were much more modest. I’ve written before about the concerning level of reversals in court–where the Immigration Judge approves a case that the Asylum Office denied. But here, what stands out is that the number of cases referred to Immigration Court in FY 2023 is way down. A total of 13,011 cases were referred to court, in contrast to FY 2022, when 23,435 cases were referred to court. In fact, FY 2023 saw the lowest number of referrals since at least FY 2008 (the beginning of the data set). I suspect this is because the Asylum Offices were focused on the Southern border and were thus unable to interview many affirmative cases.
One surprise for me was the low grant rate for asylum cases in Immigration Court. The overall approval rate for court cases in FY 2023 was only 14.40%, which is slightly better than FY 2022, when courts granted a paltry 14.18% of asylum cases. In fact, grant rates have been falling since FY 2011 (when 31.35% of asylum cases were approved), but the last two years have had the lowest asylum grant rates since at least 2008, lower even than during the Trump years, when grant rates ranged from 19.13% to a generous 20.69%. The low approval rates might be explained by the fact that these numbers include detained cases, which are more likely to be denied (due to criminal convictions or the one-year filing bar) and cases for people who arrive at the border, who can often not demonstrate a nexus to a protected ground. Also, of course, it is difficult for people in detention and at the border to gather evidence or find a lawyer.
While the last two fiscal years have seen the lowest asylum grant rates in years, they have also seen the lowest asylum denial rates since at least FY 2008. In FY 2022, judges denied 16.71% of cases and in FY 2023, the denial rate was just 15.67%. Compare this to the Trump years, when denial rates ranged from 32.83% to 54.49%. How can the Biden Administration have both the lowest grant rate andthe lowest denial rate? This seems to be because most cases (60.95% in FY 2023) were disposed of through “abandonment, not adjudicated, other or withdrawn.” It is unclear (at least to me) what these terms mean, but I suspect what is happening is that many cases are being dismissed based on prosecutorial discretion.
When judges do make decisions, asylum grant rates vary widely from one court to the next–from 0% in Adelanto, CA and Ulster, NY, to more than 60% in Salt Lake City, UT. The data from EOIR shows grant rates for each court. If you want grant rates for individual Immigration Judges, which is probably more useful, you can find that at TRAC Immigration.
EOIR has also published asylum approval rates by nationality. The agency released preliminary approval rates by nationality in July 2023, before the end of the fiscal year. At the time, I complained about the unreliability of the data, and the new numbers seem to confirm these problems. One example is Norway. The July 2023 figures state that there were 462 asylum cases from Norway and that 293 (63%) were granted. The new numbers indicate that there were zero cases from Norway, which makes more sense, but which also highlights how EOIR’s data is untrustworthy. So while there is no harm in checking your country’s asylum approval rate, these numbers should be treated with a healthy skepticism.
Although it is difficult to have full confidence in EOIR’s data, it’s clear that the Immigration Courts are busier than ever. While the agency is hiring new judges, it is not keeping pace with the growing caseload. Indeed, if cases weren’t being dismissed through prosecuturial discretion, the backlog would be much worse. All this points to the need for immigration reform, both at the border and for those who are waiting. Without that, the Immigration Courts will never make real progress towards resolving their 3+ million case backlog.
