On December 22, 2018, the government shut down when an agreement could not be reached on President Trump’s request for Congress to approve funding of $5.7 billion to build a wall on the US-Mexico border. As a result, some federal agencies were forced to cease all operations including non-essential services. Immigration judges hearing cases involving non-detained individuals fell within that category. Judges were placed on furlough and all immigration courts dealing with non-detained individuals closed and will remain closed until the government opens up again. All non-detained deportation cases scheduled for hearing during the shutdown have now been continued. On the other hand, cases for detained individuals are considered essential and immigration courts handling detained cases have remained operational.
The immigration court system is the entity in which immigration judges conduct removal (deportation) proceedings. Individuals in removal proceedings include but are not limited to those who entered the United States illegally, entered legally but overstayed their visas, or have committed certain crimes making them deportable. Immigration courts are operated by the Department of Justice’s Executive Office for Immigration Review (EOIR), under the authority of the Attorney General. EOIR is comprised of 60 immigration courts throughout the United States and an appellate body, the Board of Immigration Appeals (BIA). In order for it to operate, each fiscal year the EOIR submits a budget request to Congress for funding. The fiscal year 2019 budget request for EOIR totals $563.4 million.
There are approximately 400 immigration judges throughout the United States. As of November 2018, there were 809,041 pending immigration cases across the United States, which means that the average immigration judge would have a backlog of over 2,000 cases. The backlog is at an all-time high and as the caseload increases so do the wait time before a case is scheduled for a first hearing, known as an initial master hearing. The average wait time for an initial master hearing to be scheduled is about two years; wait times in San Antonio, Chicago, Imperial, CA, Denver, and Arlington, VA average over 1,400 days (nearly four years) as of June 2018. However, the initial master hearing is only the first of many hearings that are set on a single immigration case, meaning it can take several more years before a final ruling is made. Lawmakers continually try to find ways of effectively handling the backlog without depriving an individual of his or her constitutional right to due process. So far, no positive results have ensued, and it does not look like they will in the immediate future either.
While the Department of Homeland Security is among the federal agencies feeling the impact of the shutdown, several agencies with law enforcement functions, including U.S. Immigration and Customs Enforcement (ICE), remain operational. This means that many undocumented immigrants are still being detained and placed in removal proceedings, yet the courts remain closed and the backlog continues to grow.
As noted above, the shutdown also has a huge impact on foreign nationals already placed in immigration court. Almost all the immigration court hearings that were scheduled during the shutdown will be rescheduled for a later date and add to the delay. Individuals that would have been deported after their hearing will stay in the country even longer while they await their new court date. For others, the closure keeps them in a state of limbo not sure of what their future holds for them and they are forced to wait.
The irony of the government shutdown is it has resulted in the exact opposite outcome of what the wall is intended to accomplish. President Trump hopes the wall will be a method of stopping illegal immigration, limiting the number of people placed in immigration court, and eliminating the massive backlog. Yet, delaying court hearings puts additional strain on the immigration system, while allowing those who would have been deported to remain in the country for possibly years longer as they await new court dates. We sincerely hope that the politicians do what they were elected to do and open up the government and therefore the courts as well.
Derek Poulsen is an associate attorney at the Orange office of Wilner & O’Reilly, APLC. He focuses his practice on removal defense cases. He graduated from Utah State University where he earned his Bachelor of Arts degree in Sociology with a Minor in Spanish. He earned his Juris Doctor degree from Creighton University School of Law. During law school, he was selected to be on Creighton’s National Trial Team and earned the Honorable Lyle E. Strom Trial Advocacy Award. His previously practice included criminal defense, where he gained valuable knowledge of the negative immigration consequences that differing criminal activity has on an individual’s ability to remain in the United States. He also worked on family-based immigration, U-Visas, Special Immigrant Juvenile Visas, and 601/601A waivers. While in Nebraska Derek provided pro bono legal service at the Latino Center of the Midlands where he provided legal advice to immigrants.
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.Mr. Wilner has received the coveted Martindale-Hubbell AV Rating, the highest legal and ethical rating that one can receive from one’s peers in the legal community. Similarly, he has been awarded the title of Super Lawyer from 2007 to the present. He is best known for his work in advising Fortune 500 companies, middle and small market businesses, entrepreneurs and foreign nationals of extraordinary ability in athletics, arts, and sciences in the complex area of U.S. Immigration and Nationality Law.