We use cookies on this site to enable your digital experience. By continuing to use this site, you are agreeing to our cookie policy. close

Shutdown Hits Federal Courts, Grows Immigration Backlog

By Emma Cueto | January 6, 2019, 8:02 PM EST

Immigrants uncertain if they should show up for court dates and mounting case backlogs. Judges pausing civil disputes. Planned improvements to court facilities put on hold.

As the shutdown of the federal government, now entering its third week, upends the lives of hundreds of thousands of federal workers, there's another group of people whose futures have also been thrown into uncertainty: Those who use federally funded court systems.

The U.S. Courts system — the primary system of federal courts — remains open and is expected to be fully funded, and thus fully staffed, through Jan. 11. But the shutdown has been felt much more acutely in immigration courts, where all nondetention cases have been halted, according to an announcement by the Executive Office for Immigration Review, which administers those courts.

This likely means about two-thirds of all immigration cases are "in a state of limbo," Aaron Reichlin-Melnick of the American Immigration Council estimated.

"With the courts closed, no one is being is being ordered removed and no one is being granted permanent relief," he said. "As you can imagine, this is beneficial for some and negative for others."

It also caused a great deal of confusion. Immigration courts handle a wide variety of important matters, including removal proceedings, asylum petitions and status adjustments. Many people with pending cases were uncertain if they should show up for hearing dates and called immigration courts or tried to reach individual judges, trying to find people — or even automated messages — to clear up their questions, Reichlin-Melnick said.

"Some people traveled 10 hours to get to their nearest immigration court for a hearing only to find out that the court was closed," he added.

And for some, the shutdown has already caused long-lasting problems that will continue long after the government reopens.

Because the courts have such backlogs, rescheduling hearings can take months or even years, which can result in some people never getting age-specific benefits they might otherwise have qualified for, Reichlin-Melnick said. And the problem of delays is only exacerbated by the shutdown.

"All in all, this is only going to increase the immigration court backlog," he said.

At the close of 2018, there were more than 780,000 pending cases in immigration courts, more than double the 350,000 that were pending just five years before at the end of 2013, according to EOIR statistics. Every month last year, the court closed about 16,000 cases and accepted 25,000 new cases.

Every day the shutdown is in effect, the backlog grows larger.

"Immigration court wait times are already about three years in some places," Reichlin-Melnick said. "Cases are already being scheduled for 2022. This is just going to put even more strain on the system and lead to people in yearslong limbos."

EOIR did not respond to a request for comment.

Nor are the problems confined to just immigration courts. Even the U.S. Courts system can't stay fully staffed forever; once funding runs out, judges and essential staff will stay on the job as per constitutional requirements — though only judges are constitutionally required to be paid — but some courthouse staff will go home.

In an effort to conserve resources, judges in some states have already paused civil cases, and some projects, such as technological upgrades, have been scrapped.

Cases involving the federal government have also been disrupted, with the government asking to put some civil cases on pause — though judges have not always granted those requests.

A spokesperson for the Administrative Office of the U.S. Courts told Law360 that it's possible the Jan. 11 deadline could be stretched further.

"Budget staff at the Administrative Office are closely monitoring the status of the funding sources and spending rates," the spokesperson said. "The judiciary also is working to conserve available funds by delaying or deferring expenses, such as new hires and non-case-related travel, when possible."

--Editing by Katherine Rautenberg.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.