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Immigration Law Blog

Why Are So Many People Stuck In Immigration Limbo?

Posted by Jacqueline Delgado | Sep 14, 2022

The number of foreign nationals waiting for their immigration cases to be processed by U.S. immigration courts has soared to record-breaking heights. The Migration Policy Institute reports that at the beginning of the year, 1.6 million were waiting for their immigration claims to be processed in immigration court. The typical wait time is now almost five years.

Contrast this with 2009, when the backlog stood at around 200,000 and the wait time was about 15 months.

What happened?

The backlog can be attributed to several factors: delays caused by the Covid-19 shutdown, immigration law-enforcement techniques, denial of resources that would allow immigration courts to function more efficiently; and at the base of it all, permanent congressional gridlock preventing any legislative reform for the foreseeable future. According to the Migration Policy Institute, the practical effect of these backlogs is to leave migrants in legal limbo indefinitely.

The Department of Homeland Security (DHS) oversees border security, immigration, and customs. Two DHS agencies are primarily responsible for immigration policies: U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP). These agencies are tasked with divergent and sometimes conflicting missions.

Why DHS handles both terrorism and immigration

DHS was formed in the wake of the September 11 terrorist attacks after public hearings revealed that multiple agencies had withheld crucial national security information from one another. When the executive branch combined disparate missions–combating terrorism and dealing with undocumented immigrants–at a time of high alarm about foreign terrorism, the result was heightened hostility toward all those entering the country without authorization, regardless of their motivations.

The Migration Policy Institute has pointed out that when ICE attorneys devote the same amount of resources to prosecuting immigrants whose only crime is entering the U.S. without the proper paperwork as they devote to criminals and national security threats, it delays the removal of those who are truly dangerous.

Responding to this situation, in 2021, the Biden Administration issued guidelines asking ICE to focus on high-priority cases. But between the announcement and its implementation a few months later, ICE and CBP ratcheted up the number of arrests, despite the overwhelming number of those arrested did not fall into any of the high-priority categories.

Those in charge of enforcement may have disapproved of the new guidelines or wished to signal others who might be contemplating crossing the border once the loosened guidelines went into effect. Regardless of the cause, the result has been the highest number of immigrants caught in legal limbo in U.S. history.

A report issued by the Transactional Records Access Clearinghouse, a Syracuse University research institution, states, “It is not as if Congress or the federal government has been kept in the dark about this problem.” TRAC points out that it has been publishing reports about systemic problems for a dozen years. But everyone agrees that Congress isn't prepared to pass immigration reform legislation any time soon.

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About the Author

Jacqueline Delgado

Jacqueline Delgado is the Founder and Managing Partner at Delgado Law Group, focusing in the area of Immigration Law. Ms. Delgado has vast experience representing businesses and investors in their applications for EB-5 green cards, E-2, H-1B, L-1, O, and P visas. Further, she ha...

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