Gov't shutdown cancels nearly 43,000 immigration hearings, including 1K in Arizona

Nearly 43,000 hearings in immigration cases have been cancelled, including nearly 1,000 cases in Arizona, as judges and staff have been furloughed because of the partial shutdown of the federal government.

Driven by a fight over a White House demand for more than $5.7 billion for a border wall, the shutdown has entered its fourth week, leaving the nation's immigration court system paralyzed after a significant percentage of the Justice Department's judges, lawyers and staff have been effectively laid off.

The delayed hearings, which must be rescheduled, will result in an "avalanche" of cases that will clog the immigration docket for years, an experienced federal immigration judge said.

From Dec. 22 to Jan. 11, an estimated 42,726 hearings were cancelled, according to an analysis released Monday by the Transactional Records Access Clearinghouse, a project at Syracuse University. For each week the shutdown continues, the number of cancelled hearings will grow by another 20,000 cases, adding to an already overburdened federal docket. 

If this continues through the end of January, as many as 100,000 people will see their hearings cancelled, and by the beginning of March 185,071 hearing is as many as will likely be cancelled, TRAC estimated. 

Courts in California have been hit hardest by the shutdown as TRAC estimated that 9,424 hearings have been cancelled by Jan. 11, however, Arizona is also seeing a serious number of hearings called off. By Jan. 11, an estimated 997 hearings were called off here, and that number is expected to grow significantly if the closure continues into the next two months., adding 2,226 cases by Feb. 1 and 3,691 cases by March 1. 

About 52 percent of the employees of the Executive Office for Immigration Review, a part of the Justice Department, which handles the immigration court system have been furloughed during the shutdown, leaving just 327 attorneys and 482 staff members to deal with the current cases across the country. Most have been assigned to work on cases for immigrants in detention centers, including Arizona's two U.S. Immigration and Customs Enforcement facilities in Eloy and Florence. 

Just a day after Christmas, EOIR announced that the cases of those detained would continue as scheduled, but that "[n]on-detained docket cases will be reset for a later date after funding resumes. Immigration courts will issue an updated notice of hearing to respondents or, if applicable, respondents’ representatives of record for each reset hearing." 

The Justice Department said that federal courts are continuing to hear and decide cases using fees and "no-year appropriations," but as a Justice Department memo noted, "when this source of funding is exhausted, furloughs may impact the number of cases courts will hear." 

This means that while the immigration and asylum court in Tucson is almost completely closed, across the street at the U.S. District courthouse, an "Operation Streamline" fast-track immigration court that charges immigrants for illegal entry or illegal re-entry continues. During the closure, the court has processed 636 cases, or on average about 58 per day, according to analysis of court records by TucsonSentinel.com. 

The cancellation of non-detained cases adds to an already overburdened court system. By the end of November, the number of pending cases had already grown to 809,041 cases, a 50 percent increase compared to the 542,411 cases that were pending in January 2017 when President Donald Trump took office, TRAC said in a report published in December. 

"There's an incredible irony here. The Trump administration has pursued enforcement, and the court is integral to this process," said Judge Dana Leigh Marks, a spokeswoman and president emeritus of the National Association of Immigration Judges. The closure will require judges and staff to reschedule non-detention cases, and once the government is reopened, these cases will have to be "shoehorned" into future calendars, pushing other cases further out into 2021 or 2022. 

"We're facing an avalanche of cases when we come back," Marks said. 

This is especially difficult because some cases have already been on the courts' dockets for three to four years, and as cases go on they become more complex and more expensive, she said. "People can be prejudiced by delays and certain kinds of relief may dissipate as a case goes on," Marks said. 

Children who would otherwise qualify their parents for relief may age out, evidence becomes stale, and witnesses may disappear, she said. "It's extremely difficult and it's much more destructive that people realize, because of the emotional impact for someone who is waiting for their hearing to go forward."

The immigration court has been falling "woefully" behind for more than 10 years she said, noting that while the number of officials attached to enforcement operations at the Department of Homeland Security increased nearly 400 percent, the number of people in Executive Office for Immigration Review has only increased 72 percent. 

"This is the straw added to the camel's back and it breaks us," said Marks. 

"This report is definitely troubling, the shutdown has really moved cases to a halt on the non-detained, and the majority are on the detained docket," said Laura Lynch, senior policy counsel with the American Immigration Lawyers Association. "The non-detained docket has just moved to a halt and likely not be reset for two to three years, due to overwhelming backlog. We’re very concerned that the president’s shutdown is jeopardizing the lives of asylum seekers, and others who need their case resolved." 

"It’s true that the backlog of cases was large before, but the policies have exacerbated the backlog. The president’s shutdown is really going to devastate the functioning of the immigration court system," said Lynch. 

"As an American, I'm just so frustrated, I'm beyond frustrated really, that the American government is being held hostage over a policy issue," said Ruben Reyes, an immigration attorney based in Phoenix. 

Reyes said that about seven clients had their cases rescheduled. "My clients are humble people with limited education, so there's this huge uncertainty, and they just don't understand how the U.S. government can be closed," he said. 

Reyes said that he had planned to fly to Chicago as part of a client's case there, but now he wasn't sure if he should get on the flight for the Wednesday hearing, which means the flight's cost will be sunk, along with hotel reservations. "You can tell I've a lot of angst about this," Reyes said, sighing over the phone. 

Reyes said that he had family members who were working without paychecks, and that he was wondering if he should offer to loan some money.  The government shutdown is "shattering lives, and the fact that they're doing that day after day, is frightening and infuriating," Reyes said. 

"I lived in El Paso so I know the border, and for our president to incite fear over this and shutdown the government, it brings light to a real problem in our constitutional Republic," he said.

Mo Goldman, an immigration attorney in Tucson, said that so far his office had 10 cases that had been rescheduled. 

"In some cases, it's horrible, some asylum seekers are just waiting for their final hearing, but others don't have a strong claim and this delay may not be a bad thing," Goldman said. He noted that U.S. Citizenship and Immigration Services continues to process cases because the agency operates on a fee-based system, but other people seeking green cards or permanent residence may be forced to wait, and will be "disappointed" by the delays, he said. 

As backlog grows, advocates seek solution

While most federal judges are empowered under Article 3 of the U.S. Constitution, a historical wrinkle has placed immigration judges directly under the auspices of the Justice Department and the Attorney General, rather than being a part of an independent judiciary.

In recent years, this has caused considerable problems, because political appointees subject to the whims of a particular presidential administration may not be the best administrators of courts, Marks said. 

"The lack of foresight is particularly damaging" Marks said because it's not easy to increase the number of judges quickly and DOJ is not "sufficiently agile" to do this.

Because most immigration cases are conducted on a civil basis, rather than being criminal prosecutions, those involved do not have "speedy trial" rights under the 6th Amendment, and their cases can drag on for years.

Marks noted that the Trump administration has added to a long-running problem in the immigration court system. Over the summer, former Attorney General Jeff Sessions made two separate moves that caused issues for the immigration court. The first was his demand that officials in the Board of Immigration Appeals, a part of EOIR, brief him on "whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable 'particular social group' or purposes of an application for asylum or withholding of removal." Following those briefings, Sessions decided that being the victim of domestic and gang violence is "merely personal," and not indicative of a membership in a "particular social group." This decision stripped away one of five protected grounds for asylum that people can use as a shield from deportation.

In June, Sessions overruled a judge's decision in an individual asylum case, arguing that the decision to protect a Guatemalan woman from her abusive spouse was "wrongly decided and should not have been issued as a precedential decision."

Then, in October, Sessions implemented quotas, requiring each immigration judge to finish 700 cases per year or face disciplinary action. AILA along with the NAIJ and others objected to this quota requirement. 

"Unlike other judges who are reviewed based on the quality of their decisions, immigration judges are reviewed by the quantity of cases by supervisors who work for the Justice Department," said Marks.  

The Trump administration has piled on to a long-term problem, she said. From 2014 to 2016, the Obama administration pushed cases that involved Central American families to the front of the line seeking a deterrence effect, but this effort disrupted court functions and the "facts prove that it wasn't sufficient or effective." Now the Trump administration is trying the same thing, creating an "impossible situation." 

"We're fighting fires rather than doing fire prevention," Marks said. 

She also noted that despite an act of Congress, immigration judges still lack the ability to put DOJ and ICE attorneys in contempt. 

"The only enduring solution is to take us out of the Justice Department," Marks said.

In April, the American Immigration Lawyers Association asked Congress for a complete "structural overhaul" and pressed lawmakers to create an independent court system, modeled after the U.S. bankruptcy court, to handle immigration cases.

Along with NAIJ and the AILA, the American Bar Association, the Federal Bar Association and the National Association of Women Judges signed on, pushing Congress to pass a bill to solve this problem.

"In 2013, there was quite a long shutdown, and over 37,000 cases had to be rescheduled," said AILA's Lynch. "The number of judges has increased, so the shutdown’s effects might be much larger." 

Lynch noted that in New York, courts were "booked solidly" until 2021, so "it remains to be seen how they would add" more cases to those dockets. 

"One thing overall is the shutdown is having a devastating impact and this reveals that the courts should no longer be part of the Justice Department," Lynch said. 

Lynch echoed Marks' comment that the shutdown is "ironic." 

"We keep coming back to this, it’s just so ironic that a president who is anti-immigration has created an immigration benefit, even as enforcement has come to a virtual standstill," she said.