The Impact of Criminalizing Unauthorized Migration

The Current State of Immigration Court Cases

The dramatic increase in unresolved immigration cases is illustrated by the charts below. The first chart shows the underlying cause, an increase in the number of migrants attempting to enter the U.S. (Data for 2024 is annualized based on trend analysis.).

The rise in border encounters after 2020 is matched by a rise in pending deportation cases, as shown below:

Where Does The Backlog Come From?

Since 9/11, immigration enforcement has been the job of the Department of Homeland Security. In the wake of the terrorist attacks, immigration regulation and enforcement were hardened in line with anti-terrorism aims. Then-Attorney General John Ashcroft summed up the new approach in a speech to U.S. Mayors in October 2001: “Let the terrorists among us be warned: If you overstay your visa - even by one day - we will arrest you. If you violate a local law, you will be put in jail and kept in custody as long as possible. We will use every available statute. We will seek every prosecutorial advantage. We will use all our weapons within the law and under the Constitution to protect life and enhance security for America.”

With this change, undocumented immigration, which used to be largely dealt with through administrative proceedings, became a criminal matter. Undocumented immigrants are now charged with felonies, like unauthorized entry, and processed through immigration courts run by the Department of Justice.

Federal immigration prosecutions now represent a substantial percentage of federal court cases. Of 7,142 federal court convictions nationwide in July 2024, 2,703 (37.3%) were for immigration violations. The problem is much bigger in areas with high undocumented populations. Of 1,014 federal court convictions in Arizona in July 2024, 902 (89.0%) were for immigration violations.

The resources devoted to immigration cases have not kept pace with demand. In 2020, there were about 550 immigration judges. At the end of 2023, the number had grown to 750 – a 36% increase, but far short of the massive spike in pending cases shown in the earlier figure.

This lack of resources generates a backlog in two ways. First, when an undocumented individual is detained, they can plead guilty and be deported, or ask for a full trial in the hope that a judge will allow them to stay. Waiting for a trial requires them to stay in custody for months or years, but given the conditions that motivate people to leave their country (see our brief), detention is often preferable to being sent back home.

At the same time, the Immigration and Customs Enforcement (ICE) agency only has a limited capacity to house detainees. As a result, migrants claiming asylum are released to relatives or social services agencies and given a future hearing date. If these individuals fail to appear, a deportation case is filed. However, ICE does not have the resources to pursue these individuals. The primary way these cases resurface and are resolved is if these individuals are arrested by local police, who determine their immigration status and turn them over to ICE.

The Takeaway

The backlog of immigration cases in federal courts is the result of a significant increase in Southwestern border encounters and policy changes that criminalize undocumented immigration without adding sufficient resources (federal judges and detention facilities) to accommodate the changes.

Addressing this backlog will require either hundreds of new federal judges, much larger detention facilities, or a dramatic reduction in both undocumented entry and asylum claims.

Proposals for mass deportations of the undocumented ignore the fact that under current law, these individuals can delay their departure by asking for a full criminal trial. Significant deportations would likely require months or even years.

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