The immigration court shutdowns caused by the COVID-19 pandemic have hit New York City particularly hard. In July 2020, judges in New York City’s immigration courts completed 273 cases combined, a fraction of the estimated 2,200 cases completed in July 2019. While the judges were slowing down, ICE filed over 100,000 new immigration cases nationwide during just the first two-and-a-half months of the current shutdown. At this rate, the immigration courts are unlikely to make a dent in the 14,503 new immigration cases filed in New York City’s courts in fiscal year 2020.
The combination of ICE filing new deportation cases and reopening old cases, as well as widespread hearing cancellations caused by court closures, means that the immigration court backlog will continue to grow. There are nearly 300,000 New York City residents who are currently in removal proceedings and are waiting in limbo to hear if they will be allowed to remain in the United States.
The court shutdown has caused immigration judges’ productivity to plummet nationwide. At the beginning of the year, the immigration courts were completing around 40,000 cases per month, according to Justice Department data analyzed by Syracuse University’s Transactional Records Access Clearinghouse. But that number dropped to less than 6,000 per month for May, June, and July after most hearings were postponed or cancelled.
In addition to starting new cases, Michael Davis, ICE’s Executive Deputy Principal Legal Advisor, told immigration attorneys at the annual conference of the American Immigration Lawyers Association, that the agency’s courtroom attorneys are using the time they would normally spend in the courtroom to file motions to reopen or recalendar cases that were administratively closed in the past.
Reopening and recalendaring cases further adds to the case backlog by sending immigration judges additional cases to schedule on their already hectic court dockets and potentially pushes higher priority or more urgent cases even further down the line.
For immigrants that have few options to stay in the United States lawfully, these delays may provide additional time to prepare for the challenging process of leaving the country. But for immigrants who are fighting their deportation charges, court closures are forcing them to wait even longer to reach a meaningful conclusion to their case.
Mishandling of immigration court closures by the Executive Office for Immigration Review, the arm of the Justice Department that oversees the immigration court, has also added to the crisis.
Throughout the pandemic, EOIR has announced court closures through the agency’s official Twitter account. Some Tweets announcing court closures were sent after midnight the day before a court was scheduled to close or even after the scheduled start for hearings the same day.
While some announcements explained that closures were due to reported cases of COVID-19, most did not, leaving attorneys in the dark about whether they had already been exposed to the virus or whether they would be exposed to the virus by attending court the following day.
For instance, on March 20 at 10:12 am, well after the start of usual hearings, the EOIR announced via Twitter that the agency’s Denver immigration court would be closed that day. Announcements like this contributed to confusion for attorneys and clients who were waiting for hearings that day while also raising the alarm for attorneys who had been in court the day before who may have been exposed to someone with COVID-19. The EOIR’s approach mirrored President Trump’s use of Twitter as a platform not just for announcing policy, but for shaping policy.
This isn’t the first time a government shutdown has impacted the immigration courts. In late 2018, the federal government—including most immigration courts—shut down for over a month due to Congress’s failure to pass a budget.
The 2018 shutdown caused the immigration courts to cancel over 80,000 hearings while thousands of new immigration case filings piled up without being entered into the court record and without new hearings being scheduled. The shutdown added to the court’s backlog of (then) over 800,000 cases. New York’s immigration courts were among the hardest hit by the shutdown, with more immigration hearings cancelled than any other state except for California, according to TRAC.
In contrast to the 2018 shutdown, court closures during the COVID-19 pandemic have been inconsistent and chaotic. This is due in part to the geographic unevenness of coronavirus outbreaks, which began in coastal cities like Seattle and New York City before moving inland. More importantly however, the EOIR’s approach to closing courts with little notice, announcing closures on social media, and closing court for an undetermined amount of time before suddenly reopening, means that each court has been operating on its own independent time table. Even as most immigration courts closed at least once, many detained immigration courts remained open, adding to the inconsistency of the EOIR’s approach.
With more than 60 courts and even more hearing locations across the country, confusion has been widespread.
This constantly shifting patchwork of court closures creates confusion, particularly for attorneys in New York City who are likely to practice not only in courts in Manhattan, but also in Newark, New Jersey and surrounding states.
In fact, even as the courts in New York City remained closed, the court in Newark remained open as usual, raising concerns about exposure. In August, attorneys filed a lawsuit against the EOIR for reopening the immigration court in Newark in the middle of July as the pandemic raged on.
Unlike at the government shutdown end of 2018, in 2020 the EOIR is being viewed as responsible for the confusion because the agency itself—not Congress—is directly in charge of court closures.
At the beginning of 2020, immigration judges nationwide were on track to speed through tens of thousands of cases. In fiscal year 2019, judges completed nearly 70,000 asylum cases, the highest on record and more than double the number completed in 2017, which promised to put a dent in the enormous backlog of over 1.2 million cases.
Yet the lack of a comprehensive federal response to the pandemic, inconsistent social distancing guidelines across the country, and mixed-messaging from the president and public health specialists about how to limit the spread of the virus, have contributed to a protracted pandemic that still causes 1,000 deaths per day. As a result, the confusion and delays that were bound to impact the immigration courts are more serious and protracted than expected, and New York residents waiting for their day in court will have to wait even longer.
Austin Kocher is a Whitman Faculty Fellow at Syracuse University’s Transactional Research Access Clearinghouse.