Shutdown would mean even more delays in overwhelmed U.S. immigration courts

WASHINGTON — A looming partial government shutdown will put added pressure on an already strained system — U.S. immigration courts.

Canceling or rescheduling court cases that many immigrants have awaited for years will cause even more backlogs, immigration attorneys and judges have warned.

“Where we’ll really kind of see the backlog continue to build will be in the non-detained docket, so these are folks who have been released, who are living in their communities, working and have to appear before the immigration court when they’re hearing notice to appear,” said ManoLasya Perepa, policy and practice counsel at the American Immigration Lawyers Association.

Immigration court cases on the non-detained docket cases will be reset for a later date when federal funding resumes, because those courts will not be open should a partial government shutdown commence when the federal fiscal year ends at midnight Saturday.

The only exceptions are courts that are operating in detention centers, according to a Department of Justice contingency plan in the event of a government shutdown. There are more than 35,500 migrants in Immigration and Customs Enforcement detention centers.

The Justice Department office that oversees the immigration courts, the Executive Office for Immigration Review, does not have an updated contingency plan should a partial government shutdown happen.  

“The Executive Office for Immigration Review would continue to process all immigration cases and appeals involving detained respondents including individuals subject to electronic monitoring,” an EOIR official said in a statement to States Newsroom. “All non-detained cases would need to be rescheduled for each week of a shutdown and would not occur until funding is restored.”

Most cases are already scheduled out to 2025, and it’s unclear how long a partial government shutdown will last, Perepa said.

“Fitting in where these rescheduled folks should go is really kind of living in uncertainty for the people who are hoping to have their day in court now,” she said. “It’s also a lot of burden and extra work for immigration court staff to figure out, where is the time in the schedule to put these folks on the calendar again in the future.”

As of August, there is a backlog of more than 2.6 million pending immigration cases, according to the Transactional Records Access Clearinghouse, known as TRAC, a research center at Syracuse University. TRAC also found a 19% increase for the month of August in new immigration court cases, to 180,000 just for that month.

There are about 650 immigration judges located in 69 immigration courts and three adjudications centers across the U.S.

Immigration judges can typically get through a handful of cases a day, said Hon. Mimi Tsankov, president of the National Association of Immigration Judges.

Tsankov herself hears four cases a day, but she works at one of the busiest immigration courts in New York and has thousands of cases on her docket.

“Imagine if you can’t get to a few weeks worth of cases, those are going to be pushed out to the end of the docket. And that just means that these people will really not get their day in court. Their cases become stale, new evidence has to be prepared, assembled, presented,” she said. “It’s inefficient.”

Hoping for a short shutdown

Perepa is hoping that the shutdown will be short, and is not as long as the 35-day shutdown during the Trump administration.

“It takes a long time, I think, to claw out the things that are stopped during a shutdown,” she said.

The shutdown in 2018 caused nearly 43,000 court cases to be canceled, according to a report by TRAC.

“Individuals impacted by these cancellations may have already being waiting two, three, or even four years for their day in court,” according to the TRAC report.

So far, Congress has not passed any of the 12 appropriations bills into law, which need to be in place by the end of the fiscal year on Saturday. A group of far-right Republicans is pushing for steeper cuts to nondefense federal spending, even after several months ago House Speaker Kevin McCarthy and President Joe Biden struck a deal.

In order to give lawmakers enough time to finish the annual spending bills, a continuing resolution, or CR, is passed, but lawmakers in the House and Senate have been unable to agree on a CR so far.

The Biden administration, in its budget request to Congress, asked for $1.4 billion for fiscal 2024 to help reduce its backlog by using funds to hire more judges and court staff.

And not every state has an immigration court. Only 28 states do, meaning immigrants who have pending cases might have to travel thousands of miles to show up for their court dates.

That means, taking off time for work, finding child care or elder care options, Perepa said.

States that do not have an immigration court include Alabama, Alaska, Arkansas, Delaware, Idaho, Indiana, Iowa, Kansas, Kentucky, Maine, Mississippi, Montana, New Hampshire, North Dakota, Oklahoma, Rhode Island, South Carolina, South Dakota, Vermont, West Virginia, Wisconsin and Wyoming.