How the Shutdown Affects Immigration Court

As the shutdown goes on, the breadth of its impact is becoming clearer. It closed the immigration courts for non-detained cases, so those scheduled to be heard during the shutdown have had to be rescheduled. Detained cases continue, but according to a study released by the Transactional Records Access Clearing House at Syracuse University a week ago, 43,000 cases hearings have been cancelled and rescheduled. Those who conducted the study contend that another 20,000 are cancelled each week, so the number should be more than 60,000 now. The schedule doesn’t simply back up, though. Those whose hearings were affected by the shutdown move to the back of the line, which in New Orleans means they won’t get back into court until 2022—three years from now. Some courts are even more backlogged than that. 

According to the report, “Since few cases are being resolved during the shutdown, each week the shutdown continues the practical effect is to add thousands of cases back onto the active case backlog which had already topped eight-hundred thousand (809,041) as of the end of last November.”

That delay means that those with matters before the court will remain in status limbo for the three or more years that it will take them to be heard, which adds a layer of uncertainty to an already-anxious situation. As NPR’s Laura Benshoff wrote, “Pushing back a hearing could mean an immigrant who qualifies for status now may not in the future if immigration policies are restricted. Or, if an immigrant doesn't have a strong claim for status, a delay means more time in the U.S. and maybe even qualifying for another form of immigration status in the interim."

That uncertainty extends to the details of the rescheduled hearings. Not only might the law change between now and then, but the witnesses for a respondent (an immigrant in court) may not be available when the court date finally arrives. The work that goes into a hearing will have to be done again when the court date approaches, and in the case of asylum seekers, the painful circumstances that they’re trying to flee will have to be revisited and relived as they prepare for questioning. 

What is clear is that the human toll caused by the delay will be severe. Many respondents will not be able to leave the country until their matters are resolved. If they have husbands, wives or children outside the country waiting outside the U.S. to join them, that wait will now be another three or more years. Those who will need to renew their work authorization will be able to do so, but there will be additional filing fees and lawyer costs that they’ll have to pay. Those who have hearing scheduled still need to drive hours in some cases to the nearest court and confirm the status of the shutdown and their court appearance. They may know there’s a shutdown and court is likely closed, but since a consequence of failure to appear is deportation, many make the journey anyway. 

Those who have hearings cancelled by the shutdown need to consult an experienced immigration attorney to make sure that they know how the shutdown affects them specifically. Attorneys can’t make the docket move more quickly, but they can help minimize the pain and uncertainty that accompanies this shutdown.