Normally, the twelfth floor of the federal building at 26 Federal Plaza in downtown Manhattan is bustling with activity, as immigrants, their families, attorneys, and personnel from Homeland Security and the Justice Department come and go to immigration courtrooms that see dozens of hearings a day.
Since Donald Trump threw the federal government into partial shutdown over the “crisis” surrounding $5.7 billion in funding for a wall with Mexico, however, the space has been deserted, with a lone guard sitting at a table across a message board labeled “Immigration Court” on a recent Wednesday afternoon. As a result, far away from the border where Trump wants to keep immigrants out of the U.S, a new—and real—crisis is brewing in the country’s immigration courts.
The backlog of cases before the nation’s administrative immigration courts has reached over 800,000 cases nationally, according to data maintained by the TRAC project at Syracuse University. As the government shutdown becomes the longest in U.S. history, immigration courts like the ones at 26 Federal Plaza, which are part of a Justice Department section called the Executive Office for Immigration Review (EOIR), remain unable to process caseloads of thousands of hearings per day.
Based upon the number of non-detained hearings that had already been scheduled, TRAC estimates that between start of the shutdown on Dec. 22 and Jan. 11, over 5,300 hearings were canceled in New York State. If the shutdown goes on until the end of the month, the number will break 10,000. Hearings for detained immigrants have continued, but according to attorneys representing non-detained clients, hearings are being cancelled without notice and with no word as to when they might be rescheduled.
“It’s not like they sent out notices to the clients who were set to go to court, or the attorneys,” said Jodi Ziesemer, the director of the Immigrant Protection Unit at the New York Legal Assistance Group. The only indication that hearings were not moving ahead was “a locked door” at 26 Federal Plaza, she said. There doesn’t appear to be any mechanism by which immigrants without attorneys would have been alerted ahead of time to the fact that their hearings were canceled.
A bewildering setback
Jen Williams, the deputy attorney-in-charge of the Legal Aid Society’s Immigration Law Unit, said, “Nobody has any idea if we’re looking at cases being scheduled out to 2020, 2021, 2022… There’s no reason why they would have to prioritize these cases.” For some clients, the extra time might be a welcome opportunity to further flesh out cases and find additional evidence. For many others, it’s a bewildering setback, another point of uncertainty in an opaque system and a delay in a process that may have already taken years. Williams described one client whose case was re-calendared after having been administratively closed years ago, in compliance with a directive from former Attorney General Jeff Sessions. The client has severe cognitive impediments, and she said he was unable to fully comprehend that he had a new hearing that is now indefinitely postponed.
Others are waiting for their own adjudications on formal asylum with the hope of being able to sponsor spouses or children who remain abroad and in danger. “We have people worried about their children, who would almost certainly qualify for asylum, and they can’t apply,” said Anne Pilsbury, the executive director of Central American Legal Assistance.
There is also the salient and unaddressed matter of how time-sensitive filings will be treated. By law, asylum protections can only be sought within one year of an asylum-seeker having entered the country unless there are changed or extraordinary circumstances, and it’s not clear whether this would apply in this case.
Immigration judges also give immigrants deadlines to submit motions and evidentiary documentation, often by mail, and attorneys are not sure whether or not the packages are being received and registered. “There may be a policy saying that anything that is recorded once the government resumes will be considered timely filed, or we might have to litigate that. There’s nothing in the regulations or the statues about what to do in terms of a shutdown,” said Ziesemer.
EOIR and Immigration and Customs Enforcement spokespeople have been furloughed and are not responding to requests for comment.
Courts will be flooded with cases
Once the government reopens, the courts are likely to be flooded with cases. “Everything is already scheduled, so once the government reopens there might be hundreds of cases that same day,” said Ziesemer. “That is definitely a problem, because there is a lack of communication and information, and the burden is so high for immigrants who have to go to court. If they miss their hearing, they’ll be ordered removed.”
Supervisors fear that the return will be chaotic and disorganized in very high-stakes proceedings that leave little room for error. Camille Mackler, the director of immigration legal policy at the New York Immigration Coalition, compared the situation to the 2005 New York City transit strike, in which striking unionized workers caused most of the city’s public bus and subway transit to cease for about two days.
“It wasn’t like ‘okay, we’re reopening everything, everybody get in your subway trains and let’s go.’ It takes a while to start everything back up,” she said. “We always go through this when there’s bad weather. The courts don’t tell us until 5 in the morning whether [hearings are] happening or not.” If mistakes are made in the initial days back, people could get deported.
“How much notice are we going to have that cases are now going to go forward? Every asylum case requires a lot of preparation, and typically you prepare testimony a few days before the hearing… You can’t just prepare a case one day and not think about it for six months,” said Pilsbury. “We don’t know if we’ll have a week, we don’t have if we’ll have any notice at all.”
Soon, it might be more than just the immigration courts that are affected. Ed Friedland, the district manager of the U.S. District Court for the Southern District of New York, confirmed that the federal court is expected to run out of appropriations funding on Friday. If and when it does, habeas corpus petitions for those seeking to contest the legality of a person’s detention will not be adjudicated. Friedland said lawyers would still be able to bring the petitions, but they would be immediately stayed until the government reopened unless it was an “emergency situation,” in which the lawyers could prove an “emergency need” to have someone released.
Habeas petitions are often used by immigration attorneys to force the government to release clients who have been in detention for a prolonged period of time, or who are about to be deported when lawyers believe they have some avenues for relief. Xiu Qing You, a father and small business owner who was arrested by ICE agents during a marriage interview as part of his process to regularize his status through his U.S. citizen wife, and Danny Michel, a man who was illegally detained by ICE in contravention of an earlier court order filed successful habeas petitions. Legal Aid Society Deputy Communications Director Redmond Haskins said in an email that the organization had filed 30 habeas petitions throughout 2018.
“Pending habeas actions will be put on hold, as will be affirmative litigation. Courts are often the last line of defense against the abuses of the Trump Administration, and our clients and others will undoubtedly have fewer options for relief,” said Hasan Shafiqullah, the attorney-in-charge of Legal Aid’s Immigration Law Unit, in a statement. Decisions by the administrative Board of Immigration Appeals, which is the appeals court for the EOIR immigration courts, can be escalated to the U.S. Court of Appeals for the Second Circuit, which would presumably also run out of funds and put ongoing litigation on pause.
The district manager of the U.S. District Court for the Eastern District of New York, which also serves New York City, did not respond to a request for comment, though it is likely that the court would respond to a lack of funds in the same way as its Southern District counterpart. Friedland, the district manager of the Southern District, said that naturalizations at the court are scheduled to continue on as usual even in the event of federal funds running out. He could not say if they would go on indefinitely if the courts remain unfunded.