As the partial government shutdown drags toward its fifth week, immigration courts are another aspect of government caught in the middle of the standstill in Congress.
The National Association for Immigration Judges, the union organization for these judges, estimated that 300 immigration judges across the country — including three in Utah — are furloughed, according to Ashley Tabbador, the association’s president. Tabbador also works as an immigration judge in Los Angeles.
“They are essentially being prevented from earning a living, and all the cases that they had on their docket are being canceled on a daily basis,” Tabbador said.
Data from the Transactional Records Access Clearinghouse or TRAC, a nonprofit research center based at Syracuse University suggests that over the first 25 days of the shutdown, about 43,000 immigration court hearings have been canceled since the government’s funding lapsed. In Utah, it’s estimated that 206 immigration court cases have been canceled as of Friday.
The canceled cases involve immigrants who are not currently in detention. Cases involving immigrants in custody are still ongoing.
Jennifer Ha, a local immigration lawyer with the JLJ Law Group, said only one of her clients’ hearings has been canceled so far, but she expects more of her clients’ hearings could be shifted as the days pass, including one man who is seeking asylum.
“This very much puts their lives in limbo,” Ha said.
TRAC estimates that if the shutdown continues past Feb. 1, it could result in the cancellation of more than 500 immigration court cases Utah. If it continues into March, that number could be as high as 893.
The delay can also be a risk for some immigrants if they are stopped by law enforcement, Jennifer Ha said.
That’s because Immigration Customs Enforcement or ICE is still operating despite the shutdown and deportations are still ongoing.
If immigrants’ cases don’t show that there is anything pending, Ha said there is a chance they could be removed from the country if there were to encounter an immigration official.
Tabbador expects the shutdown will compound the current backlog in the country’s immigration court system. There were about 800,000 pending immigration court cases in the system as of November 2018, according to TRAC.
For Tabbador, the government shutdown illustrates the problem with having the immigration courts under the Department of Justice and the Attorney General. The association has recommended that immigration courts be removed from the Justice Department not only so they can have a separate source of funding, but also so they can avoid conflicts of interests.
“It’s the most dysfunctional way of running a court,” Tabbador said.
But the backlog won’t be resolved after the shutdown is over.
Most immigration courts don’t have the staffing capacity to reschedule all the cases that have been canceled during the shutdown, which further complicates the issues, Tabbador said.
“When a judge looks at his or her calendar and sees that the next available date they have is 2022, then the most logical response is put that case in the back of the line,” she said.
For some immigrants, their hearings could be set back by years. Tabbador said that for people with weak immigration cases, a delay is exactly what they want because it will give them time to develop a stronger argument for why they should be allowed to stay in the country.
For others, a reschedule hearing date could cause them to forget key details in the testimony or make witnesses harder to track as time goes by.
It’s a lose-lose situation for the Department of Homeland Security, who wants to have these immigration cases resolved, for the immigrants waiting for hearings and for the immigration judges with overwhelmed dockets, Tabbador said.