The shutdown is over for now, but big delays loom in Immigration Court

The end of the partial government shutdown is expected to reopen the nation’s shuttered Immigration Courts. That’s the good news.

The bad news: The 35-day closure caused immigration hearings to be canceled at a rate that was approaching 20,000 a week, meaning that many people will have to wait additional years to have their day in court, according to immigration lawyers and former judges.

An estimated 86,200 Immigration Court hearings were canceled between Dec. 22, the start of the shutdown, and Jan. 25, according to the Transactional Records Access Clearinghouse at Syracuse University. California led the nation in canceled hearings, with 9,424 through Jan. 11. New Jersey ranked fifth, with 1,894, and Pennsylvania 10th, with 1,163.

“This moves the court system closer to implosion,” said former Immigration Court Judge Jeff Chase, now in private law practice in New York.

Some migrants who already have waited two, three, or even four years for their hearings may have to wait two or three years more.

“All the cases that were missed will be delayed significantly,” said Philadelphia lawyer Brennan Gian-Grasso, chairman of the city chapter of the American Immigration Lawyers Association. “I think it will result in extra years for the most busy dockets.”

The effect of the lag could be profound for people trying to prove they should be allowed to stay in the United States. Migrants who might have won their hearings now could end up losing them later, because of the passage of time, said Chase, an immigration judge from 1995 to 2007.

He offered an example: A client facing deportation seeks to be granted a cancellation of removal based on extreme family hardship. That’s a legal avenue of relief. Maybe the client has an elderly, sick parent. Or serves as primary caretaker to a child.

Three years from now, that elderly parent may have died. A child could have aged to the point that he can take care of himself. In both cases, potentially winning grounds would have disappeared.

The Immigration Court system now has a lot more work to make up — but still has the same roughly 400 judges presiding in 62 courts around the country. Immigration Court in Philadelphia is at the Robert Nix Federal Building at 900 Market St.

“It’s chaos on top of disaster,” said retired Immigration Court Judge Paul Wickham Schmidt, who left the bench in 2016 after 13 years hearing cases in Arlington, Va. “People with good cases are denied justice, while others postpone their day of reckoning indefinitely. Many of these cases will never be decided unless Congress reforms this broken system.”

Philadelphia immigration lawyer Ajua Hawkins said one of her clients, a Haitian mother of two seeking asylum from political violence, can’t stop worrying that she’ll miss a crucial hearing.

“She’s like: ‘The government closed? How is that possible?’ ” Hawkins said. “It’s scary, because this is someone’s life."

The shutdown stands as the longest in American history. The previous record was 21 days under President Bill Clinton. On Friday, as airports reported major delays because of a shortage of air traffic control staffers, President Donald Trump announced an agreement to reopen the government for three weeks.

It’s unclear what will happen after that.

About 380,000 federal employees were furloughed, and an additional 420,000 were required to work without pay.

During the shutdown, Immigration Court accepted filings only for migrants in detention. Everyone else was out of luck, knowing only that, according to the Justice Department, canceled hearings would be rescheduled when funding resumed.

“There are so many people that have cases that are ready to go, that are bona fide immigration cases, ready for their day in court,” said Gian-Grasso. “That’s undermined.”

Immigration court is different from what most people think of as a typical court. For one, it comes under the umbrella of the Justice Department, not the judiciary. At the top of the Justice Department stands the attorney general, a political appointee who has the power to issue binding decisions on how immigration judges operate.

Immigration court is a civil proceeding, even though the consequences for the people involved can be life-or-death.

The backlog of active Immigration Court cases topped 809,000 at the end of November.

That figure soared during the last decade because of three main reasons: President Barack Obama’s deportation aims, the increase of unaccompanied minors arriving at the southern border, and President Trump’s aggressive immigration enforcement, according to the Bipartisan Policy Center in Washington. All that “severely limited the courts’ ability to process more cases,” the center said.

“The practical effect of the shutdown,” Gian-Grasso said, “is going to be that more cases just get postponed on the same judge’s docket, not lessening their load at all.”