New Biden Administration Policies Impact Asylum for Four Nationalities

Published Jan 18, 2023

The Immigration Court backlog of asylum cases surpassed 800,000 for the first time at the end of December 2022. More specifically, as of December 31, 2022, the asylum backlog reached 806,494 with average wait times for a hearing—and even longer for a final decision—of over four years. Asylum cases are a large component of the Court’s overall workload both in terms of numbers, as well as in the time devoted to these cases.

Pending Immigration Court cases of all types reached 2,056,328 at the end of last month, another all time high. Once cases reach the Court, it usually takes time for immigrants to file their formal asylum applications. Because of this, recent growth in the Court’s overall backlog will likely continue to fuel increases in the Court’s asylum workload going forward.

Responding in part to these expanding workload challenges, the Biden administration on January 5, 2023, announced it was effectively cutting off the ability to seek asylum for individuals from three new countries – Cuba, Haiti, and Nicaragua – who joined Venezuela whose asylum avenue was similarly cut off last October.

Now individuals from these four countries face expanded use of expulsions and expedited removal, and may not be permitted to even claim asylum when attempting to enter this country. In its place, the administration established a limited legal pathway to enter the country for up to two years via advanced parole for “urgent humanitarian reasons or significant public benefit.” Individuals, however, must apply after first obtaining personal sponsors from within the U.S. who agree to provide them with financial support during the duration of their stay.

This report examines the likelihood that these new policies targeting specific nationalities will help reduce the stream of new cases arriving at the Immigration Court. The sections which follow provide a detailed month-by-month examination of the changing nationality makeup of these new cases using database records which TRAC recently obtained from the Executive Office for Immigration Review (EOIR) in response to Freedom of Information Act (FOIA) requests.

In the analyses which follow, we use the dates on Notices to Appear (NTAs) issued by Department of Homeland Security (DHS) officials recorded in this database, rather than actual Court filing dates. The Court records analyzed by TRAC typically covered NTAs from the point they were issued to immigrants who had arrived at and between ports of entry. [1]

How Important Are New NTAs from These Four Countries?

In January 2022, Venezuelans at the beginning of this past calendar year made up over a quarter of all new NTAs. Together, these four countries accounted for over half (57%) of all new Notices to Appear (NTAs) issued by the DHS seeking a deportation order by an Immigration Judge. See Table 1. By December 2022, the share of cases from these four countries had fallen to just 30 percent, and Venezuelans made up only 8 percent.

However, the fact that the proportion of Venezuelans has dropped from over a quarter to only 8 percent during this recent 12-month span of time is not necessarily attributable to the Administration’s new policies.

First, as shown in Table 1 and Figure 1 (where new NTAs from Venezuelans appear shaded in gold), there is no clear trend. Rather what we see is large month-to-month fluctuations both up and down. And there is no substantial drop since October. For Venezuelans, April and May marked the lowest points in terms of case numbers, and even as recently as September new Venezuelan cases were lower than they were in any of the months following the implementation of the Administration’s policy change in October.

Second, even in the absence of any change in policy, individuals from Cuba, Haiti, and Nicaragua also declined after August 2022 in both their numbers as well as their proportion of total NTAs. See Table 1.

This suggests that there are a myriad of other important factors impacting immigration flows and the issuance of new NTAs. This makes it challenging if not foolhardy to forecast -- based on these data -- how these specific administration policy changes will influence future filing trends.

Other Countries Fuel New NTAs

Citizens from a number of other countries are now showing up seeking entry at this country’s borders and being issued Notices to Appear in Immigration Court. The top fifteen (15) nationalities based on NTA totals for calendar year 2022 are shown in Table 2. [2] These fifteen countries account for nine out of ten (90.5%) of new Court NTAs this past year.

These top nationalities are not limited to foreign nationals from countries in the Western Hemisphere. They include immigrants from India and Russia. And while India reached its high during June, those from Russia have been growing. In fact, Russians were the second largest component of NTAs in December 2022.

There are other important components including individuals and families from four countries in South America: Colombia, Peru, Ecuador, and Brazil. Individuals and families from Ecuador have been showing quite recent upticks seeing their peak during November. An increasing number are now from the Caribbean nation of the Dominican Republic which saw its highest totals also in November.

New Court NTAs further include the families from the three Northern Triangle countries of Central America – Guatemala, El Salvador and Honduras. Title 42 immediate expulsions at the border also have not stopped a fairly steady growth in individuals and families with Mexican nationalities. Indeed, Mexicans accounted for the largest number of new NTAs among all nationalities in December.

A Closer Look at Regional Variations in Immigrant Destinations

The flow of new Immigration Court cases to different locales within the U.S. is even more varied, and often differs from these national trends. This is because immigrants from a specific country tend to head to communities in which they have family or other ties.

This tendency for a given nationality to locate in specific states is the rule, rather than the exception, with only smaller numbers dispersing more widely across the country. For example, the vast majority of Cubans have located in Florida and their cases are being handled by Immigration Judges in Miami and Orlando. In contrast, the majority of Russians have been heading to California and New York, and thus are being heard by Courts in those states. Immigrants from India have also headed to California communities, particularly those centered around San Francisco, with a smaller contingent centered in the New York City region.

Venezuelans are largely concentrated at Immigration Courts in Orlando, Miami and Dallas. Those from Brazil have located in Massachusetts and their cases are being heard by judges based in Boston. Individuals from Ecuador have largely headed to New York and New Jersey. Individuals from Mexico have greater dispersion. Their NTAs are being handled by Immigration Judges in courts such as those based in San Francisco, Los Angeles, Chicago, Charlotte, Dallas and Atlanta.

TRAC features a newly updated free web query “Immigration Filings” tool to make it easier for anyone to drill more deeply into these trends. In addition to examining nationalities and where immigrants locate, users can drill deeper by their ages and gender, as well as language spoken.

The public can also see whether or not those with new NTAs have been able to obtain attorneys to assist them in presenting their cases. Representation can be examined by state and county of residence in the Filings tool, as well as visually via TRAC’s “Immigration Lawyers” mapping tool.