The Changing Make-Up of Immigration Court Cases Now That Title 42 Has Ended

Published Aug 16, 2023

A large influx of new Immigration Court cases was widely expected after the termination on May 11, 2023, of Title 42 -- a public health policy that allowed individuals arriving at the U.S.-Mexico border to be immediately expelled without a hearing. According to the latest data released by the Immigration Courts, this influx did not occur.

Before May 11, the number of Notices to Appear (NTAs) issued each week had climbed above 40,000. After Title 42 was terminated, the weekly total dropped to as low as around 25,000. However, the drop was short lived. By the end of July, new cases arriving each week at the Court had climbed back up to almost 39,000—above the level that had prevailed before the sudden peak as immigrants rushed to enter to beat the May 11 end of Title 42.

The latest case-by-case court records, now updated through the end of July 2023, show the number of immigrants issued NTAs by Department of Homeland Security (DHS) officials has actually increased. Since Title 42 expulsions ended, a total of 366,467 new NTAs were recorded in court records as being issued. This is 12.6 percent greater than the 325,510 NTAs that were issued in the same number of days before the end of Title 42.[1]

Figure 1 plots the number of NTAs by their date. A weekly cycle is clearly evident with more NTAs issued during the regular workweek of Monday through Friday than on Saturday and Sunday. A large initial drop shortly after May 11 in the number of NTAs is also shown, after a lag of a few days as DHS officials worked through immigrants who had arrived on or by May 11th. But NTAs then began to rise. Whether this upward trend in Court filings will level off or continue to climb is not clearly signaled yet by these data.

Immigrant Origins Are Shifting

While new NTAs have resumed their former levels and show signs that they may continue to increase, the composition of these immigrants arriving at the Court is undergoing substantial change. While it continues to be true that most individuals with newly issued NTAs entered the U.S. at the Southwest Border, fewer of those being admitted and given court dates are coming from such far-flung places as Russia and India.

These very recent nationality shifts in the makeup of incoming Court cases should be seen against the changes that have taken place over a longer time frame that were traced in TRAC’s recent report. While immigrants from South America, Eastern Europe, Asia, and Africa had become the fastest growing segments, this is no longer true in the latest post-Title 42 period. Instead, the Court is seeing increasing numbers of Mexicans and immigrants arriving from the three Central American countries of El Salvador, Guatemala, and Honduras reverting to the pattern observed in earlier periods. Those from South America and abroad have dropped. See Figure 2.

It appears clear that the package of new Biden administration policies put in place – many which single out some nationalities for different treatments – is having a substantial impact on the identity of those who manage to surmount entry barriers and win a coveted NTA. These immigrants then have a chance for a hearing before an Immigration Judge to determine whether they will be allowed to legally remain in the U.S.

The remainder of this report examines these recent nationality shifts in more detail. It follows an earlier TRAC report that examined the shifting nationalities which were seen during calendar year 2022 while Title 42 was still in effect, and TRAC’s most recent report that examined these trends through a wider lens.

Nationality flows had been shifting even before the Biden administration announced on January 5, 2023, that it was effectively cutting off the ability to seek asylum for individuals from Cuba, Haiti, and Nicaragua, in addition to individuals from Venezuela whose asylum avenue was similarly cut off in October 2022. There are a myriad of other important factors impacting immigration flows and the government’s issuance of new NTAs, so predictions of how these and the additional specific administration policy changes will influence future filing trends remains uncertain.

This report takes an early look at the composition of new Court cases now that Title 42 has ended. Results are based on detailed case-by-case court records analyzed by the Transactional Records Access Clearinghouse (TRAC). These data were obtained by TRAC through a series of Freedom of Information Act (FOIA) requests. For comparison purposes, available data for the post-Title 42 period covers May 12, 2023 – July 31, 2023 (81 days). The comparable “Title 42 period“ in this report covers NTAs issued from February 20, 2023, through May 11, 2023 (also 81 days).

Title 42 Period: Most Immigrants Came from South America and Beyond

The largest segment (45%) of immigrants with new Immigration Court cases towards the end of Title 42 came from South America. Individuals from Venezuela and Colombia made up three out of every ten South Americans. The other countries with the largest numbers were Peru, Ecuador, and Brazil.

The next largest segment (22%) were from countries outside of North and South America. Here immigrants from India, Russia, and China were most numerous. These were followed by immigrants from Mauritania, Uzbekistan and Turkey, each with closely similar numbers.

The remaining third came from countries north of South America. Leading the list were Central American countries accounting for 13 percent, followed closely by Caribbean nations with 11 percent. The rest were Mexicans who made up 8.5 percent. After Mexicans, the next largest nationalities were Haitians, followed by Nicaraguans, Hondurans and Guatemalans. See Tables 1 and 2 at the end of this report.

Post-Title 42 Period: Increasing Cases Involve Mexicans and Central Americans

The post-Title 42 period brought a doubling of immigrants from Mexico and Central American countries. While immigrants from South America still made up the largest segment, their numbers dropped and their proportion had fallen from 45 percent to 33 percent, although trends varied markedly by country.[2]

The number from Central America surged past those from outside North and South America. Central Americans during the post-Title 42 period have grown so they now make up 25 percent. The largest jump was for individuals from Honduras, followed by Guatemalans. Those from Nicaragua declined while El Salvadorans doubled in number.

Immigrants from abroad including Asia and Africa fell to 17 percent. However, trends again differed depending upon the country. Fewer numbers came from India and Russia, while those from Mauritania and Uzbekistan grew. See Table 2 at the end of this report.

What Lies Ahead?

With the Biden administration’s border policies under attack in court from both conservative states and immigrant rights advocates, the future of these policies remains uncertain. The question of who ends up in Immigration Court is still shaped by DHS policies at the border concerning who is let in and who is turned away. The expected spike in new cases following the end of Title 42 was not born out in the data; indeed, the opposite happened in the short-term. What is clear is that the makeup of migrants who are added to the Court’s docket continues to fluctuate over time, not only in terms of who is arriving at the border, but in terms of which nationalities are designated by current policies for inclusion versus exclusion.