The Border Patrol had more than 2.2 million encounters with illegal crossers between ports of entry on the Southwest border in fiscal 2022.

A recent report from the DHS Inspector General indicates that most of the illegal crossersare not put in detention facilities or expelled under Title 42, but rather are processed for outcomes allowing them to be released into the United States to wait for immigration hearings. This has overwhelmed the immigration courts.

The immigration court backlog was 1,262,765 cases at the end of fiscal 2020, which was the last full fiscal year of the previous administration. Under the current administration, it has risen to 2,023,441 cases as of the end of November 2022.

Almost 800,000 of them have submitted asylum applications and are waiting for an asylum hearing. The average wait from when an application is filed to when an applicant’s case will be heard is 1,572 days, or 4.3 years.

Moreover, many others have been allowed to enter the United States to wait for an asylum hearing but have not filed an asylum application yet. And the number of asylum seekers is likely to increase greatly when Title 42 is terminated.

The administration seems to want to deal with this problem by finding faster ways to adjudicate the applications instead of admitting fewer asylum seekers to give the immigration court a chance to catch up.

For instance, on May 28, 2021, the administration announced a new Dedicated Docket which is supposed to expeditiously and fairly make decisions on the immigration cases of newly arrived families who are apprehended between ports of entry at the Southwest Border. INA §1325(a) provides that such entries are crimes subject to imprisonment for up to two years.

DHS Secretary Alejandro Mayorkas says in the announcement that, "Families who have recently arrived should not languish in a multi-year backlog; today’s announcement is an important step for both justice and border security."

He is referring to newly arriving families, not the families who already are languishing in the multi-year backlog.

The announcement concludes that while "the goal of this process is to decide cases expeditiously, fairness will not be compromised."

Dedicated Dockets are not new or fair.


Published originally on Fox News.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at: