Previous administrations left President Trump with an immigration court backlog that has made it impossible to reduce the undocumented alien population in removal proceedings conducted by immigration judges.

The backlog has risen every year since fiscal 2006. It reached 733,365 cases in June 2018.

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In the first two quarters of fiscal 2018, the immigration court completed 92,009 cases. Even if DHS stopped arresting deportable aliens, it would take four years to eliminate the backlog at this rate.

The backlog doesn’t just inhibit the deportation of aliens who are apprehended when the make an illegal entry into the United States. It also inhibits the deportation of aliens ICE arrests in the interior of the country.

According to the 2016 Yearbook of Immigration Statistics, ICE arrested a total of 5,370,849 undocumented aliens from the interior during the Obama administration. But the Executive Office for Immigration Review reports only 1,515,163 case completions for the immigration court during this period. That accounts for only 28 percent of arrests. (The court’s cases included aliens arrested by CBP who were admitted for an asylum hearing, not just aliens ICE arrested in the interior.)

Reducing the population of undocumented aliens

The only chance Trump has of reducing the population of undocumented aliens while he works on eliminating the backlog is to concentrate his enforcement resources on apprehending aliens who can be removed without a hearing.

He already is utilizing expedited removal proceedings. The only other source of deportable aliens who can be removed without a hearing is the Visa Waiver Program (VWP).

The VWP allows eligible visitors from the following 38 countries to enter the United States for 90 days as nonimmigrant visitors for business or pleasure without obtaining a visa from a U.S. consulate abroad. The program includes:

Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, Malta, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom.

If a VWP alien does not leave at the end of his admission period, he can be removed without a hearing on the order of a district director, unless he applies for asylum or withholding of removal, and relatively few VWP aliens are able to qualify for either. Most of them are from Europe and it is difficult for aliens from Europe to establish asylum eligibility.

Moreover, there is a one-year time limit on applying for asylum.

The main evidentiary difference between asylum and withholding is that asylum just requires a well-founded fear of persecution, and withholding requires the applicant to establish that persecution is more likely than not.

But withholding does not entitle aliens to remain in the United States. It just prohibits deporting them to the country where they would face the risk of persecution.

VWP overstays is a serious problem

Entry/exit data for VWP visitors are only recorded at air and sea ports of entry. No one knows the overstay rates for the alien visitors who use land ports of entry.

The VWP was established by the Immigration Reform and Control Act of 1986 (entries began in 1988), but overstay records were not available until 2016.

According to the first overstay report, 20,974,390 VWP visitors were expected to leave the United States in fiscal 2015 but 136,807 of them did not leave (0.65 percent).

There were 21,616,034 VWP visitors who were expected to leave in fiscal 2016 and 128,806 of them did not leave (0.60 percent).

And there were 22,472,710 VWP aliens who were expected to leave in fiscal 2017. This time, 114,121 of them did not leave (0.51 percent)

The VWP visitor overstay total for this three-year period is 379,734. No one knows how many VWP aliens overstayed in the 27-year period between the inception of the program in 1988, and when DHS began recording entry/exit data for fiscal 2015.

No administration has conducted a large-scale, nationwide campaign to apprehend and remove VWP overstays, so it is difficult to predict whether such a campaign would be successful.

But I am sure that Trump can’t rely on the immigration court to reduce the population of undocumented aliens until the backlog has been eliminated.

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.