With an already large 800,000 case backlog, the “partial government shutdown” has been devastating for the immigration courts. The closing of most facilities has already led to the cancelling of approximately 52,000 “deportation” hearings by the immigration courts. The number of cancelled hearings will grow to over 100,000 by the end of January. Nearly 400 immigration judges have been furloughed during the shutdown. The only judges reporting to work are those who are hearing cases for immigrants held in detention.
The first week of the shutdown, over the Christmas holiday, saw relatively few hearings cancelled because most judges were on vacation. That week, there were only 5,579 cancellations. With the holidays behind us, roughly 20,000 hearings per week are being cancelled.
New York has seen the second largest number of cancellations. Over 6,000 hearings have been put on hold. That number will grow to 12,000 by the end of this month.
The end of the shutdown, even if it comes soon, will not lead to quick hearings on the cancelled cases. Judge Stephanie Marks, former president of the National Association of Immigration Judges, told PBS that it could take three or four years for immigrants whose hearings were cancelled for their cases to be rescheduled. This means no court grants of asylum or other humanitarian protections for years for those entitled to them, and no deportation orders for those found not to qualify. Donald Trump, in demanding that the government close if he cannot get funding for The Wall, has essentially stopped nearly all deportations in the United States.
Even if the shutdown ends, chaos in the courts will not quickly be resolved. An immediate call for a return to work will not produce open courts the next day. For every immigration judge, there are several low-wage support staff who will also need to be recalled. Judges, clerks, and interpreters are not waiting by the television for the word of a recall.
Many of the subordinate staff of the courts are working other temporary jobs and may not be able or willing to return to work immediately. They are often living paycheck to paycheck and are, in many cases, already looking for work elsewhere. Many immigration judges, who are better compensated, are reportedly travelling during the furlough and might not be available to return to work for days or even weeks after a shutdown ends.
Immigration judges are all attorneys, and there is a ready market in the private bar for their services should they choose to leave the courts. Several employees of the immigration courts and the Department of Homeland Security have told me that they worry that there may be more shutdowns over the next two years and that the current crisis might be repeated as early as next September over the Federal debt ceiling. With that depressing prospect, they say, it may be time to move on from Federal service.
While some immigration court positions are relatively easy to fill, immigration judges go through a long selection process including extensive background checks. They then must complete a detailed training program that some have compared to “being back in law school.” If a large number of immigration judges leave government service, they might not be replaced until 2020, further disrupting the courts.