Published May 15, 2023
The federal government is facing a flurry of immigration-related civil lawsuits in court. In February 2023 alone, the federal civil courts recorded 943 immigration-related lawsuits, the highest immigration-related lawsuits for any single month on record. So far in FY 2023, from October to February, the courts recorded 4,175 total civil immigration filings. At this rate, the total number of filings for the year is estimated to exceed 10,000, a new record. This growth in immigration lawsuits has been driven primarily by what are known as mandamus lawsuits, or lawsuits that are typically filed when the government fails to take action on a variety of immigration-related applications.
Figure 1 and Table 1 show the total number of immigration-related lawsuits in federal court broken down by whether the lawsuit included a writ of mandamus in the cause of action. Prior to 2021, mandamus lawsuits typically made up less than 30 percent of the overall number of immigration suits and never more than 1,300 in a single year. In 2021, however, mandamus lawsuits jumped to 2,719, making up 48.1 percent of all immigration suits. In 2022, this jumped again to 5,284 (64.7% of the total) and is projected to reach nearly 7,000 by the end of FY 2023. This represents more than two-thirds (68.5%) of all immigration lawsuits filed in federal court.
|Fiscal Year||All Civil Immigration Filings||Mandamus Lawsuits||Other||Percent Mandamus|
Writs of mandamus have become more important in recent years as government delays, often by U.S. Citizenship and Immigration Services (USCIS), on various immigration petitions and applications have grown and these delays have received more public attention. Attorneys have filed more mandamus lawsuits to compel the government to take action on clients’ cases. In fact, a class action lawsuit against USCIS was filed in January 2023 because the agency had delayed in rendering decisions on unlawful presence waivers that are necessary to become Lawful Permanent Residents.
USCIS itself acknowledges that delays at the agency have increased in recent years. In March 2022, USCIS issued a public statement describing the steps it planned to take to address backlogs. In that statement, USCIS identified the current exacerbation of delays as due to the global pandemic and recent under-resourcing at the agency: “Due to the COVID-19 pandemic and resource constraints resulting from the prior administration, USCIS inherited a significant number of pending cases and increased processing times.” The agency also makes processing times available online.
Since TRAC reported on this growth in July 2022, the number of immigration lawsuits grew faster than expected. In fact, TRAC’s previous projection of just over 6,000 immigration lawsuits for FY 2022 fell far short of the 8,162 that were actually filed by the end of the year. It’s possible, therefore, that current projections could again fall short of reality.
Civil filings in court are grouped by the nature of suit. The numbers in this report represent those filings where the nature of the lawsuit was labeled as immigration. Immigration suits can be further divided into four types: deportation, naturalization applications, habeas corpus filings for alien (i.e. non-citizen) detainees, and other immigration actions. Other immigration actions include various types of filings, but mostly filings related to the Administrative Procedures Act (APA) and writs of mandamus, both of which typically involve procedural complaints against the federal government such as failing to take action on a petition. Note that although mandamus actions make up a large fraction of cases under “other”, they can also be found in deportation, naturalization, and habeas corpus filings, too.
Deportation lawsuits represent the smallest number in FY 2023 so far with just 4 such suits. Naturalization application lawsuits are the next smallest. Habeas corpus lawsuits, filings intended to challenge the detention of non-citizens, was somewhat higher at 165 so far this year. Other immigration actions are by far the highest, with 3,860 filed in FY 2023 so far – 1,041 are non-mandamus actions. Figure 2 provides a breakdown of each type of immigration filing as a fraction of all immigration filings so far this fiscal year.
When comparing these immigration categories over time, the growth of mandamus and other types of immigration actions becomes clearer. Habeas corpus lawsuits and other immigration actions were filed in approximately the same numbers until the fall of 2018, when other immigration actions began to grow slowly. Then, early in the COVID-19 pandemic, the monthly number of habeas corpus lawsuits spiked when attorneys filed suit to release migrants who were in detention and therefore at higher risk of contracting the virus. However, habeas corpus lawsuits declined quickly and have remained low.
Mandamus lawsuits have climbed markedly since the start of 2021, when they totaled just 184 in January, to a high of 667 in a single month in August 2022. The latest month for which TRAC has data, February 2023, saw the number of mandamus lawsuits reach its second highest ever at 655. Other immigration lawsuits (not including mandamus lawsuits) have also climbed from 113 in January 2021 to 228 in February 2023, their highest month ever. Since many of these lawsuits also challenge procedural matters at immigration agencies, including USCIS, these record numbers also signal dissatisfaction in the administration processing of immigration-related matters.