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How the Shutdown Actually Kept Thousands of Undocumented Immigrants in the U.S.

As a result of the shutdown, an estimated 80,000 court hearings will have to be rescheduled.
Immigration court hearings are frequently booked years in advance. With a growing backlog of over 800,000 cases, court staff cannot simply reschedule all the missed cases for the week after the shutdown.

Immigration court hearings are frequently booked years in advance. With a growing backlog of over 800,000 cases, court staff cannot simply reschedule all the missed cases for the week after the shutdown.

In a twist of irony, President Donald Trump's government shutdown over border wall funding will keep tens of thousands of undocumented immigrants in the country for much longer, analysts say, as immigration court staff returning to work this week struggle to reschedule postponed hearings.

More than 80,000 immigration court hearings were postponed during the shutdown that began in late December, according to estimates by the Syracuse University non-profit data research center, Transactional Records Access Clearinghouse.

Immigration court hearings are frequently booked years in advance. With a growing backlog, preceding the shutdown, of over 800,000 cases, court staff cannot simply reschedule all the missed cases for the week after the shutdown; many defendants will have to wait months if not years until a judge takes up their case. It appears that in his all-consuming push to construct a border wall that many analysts say will do little to keep undocumented migrants out of the United States, Trump actually kept tens of thousands of them in the country, awaiting trial.

"The shutdown will have the effect of keeping undocumented people here for longer, probably years longer," says Jean Reisz, a University of Southern California law professor and supervising attorney at the university's immigration clinic. "These include people with criminal convictions. The push for a wall at the southern border has decreased the overall effectiveness of an already broken and strained deportation system."

Immigration court staff faced more chaos Monday morning, as they struggled to resume operations after 35 days with 75 percent of judges and staff furloughed.

"We were notified over the weekend that the shutdown is over and everyone is expected to return to work on 'business as usual' for Monday," says Ashley Tabaddor, president of the National Association of Immigration Judges.

But the courts were bogged down by a push to jump-start activity that had come to a near standstill for over a month.

"Everyone is doing their best to just be able to hear the cases that are scheduled for this week before turning their attention to the thousands of hearings that were cancelled because of the shutdown," Tabaddor says. "There are piles and piles of mail that have been delivered over the weeks. [The Department of Homeland Security] has continued to file new cases which now need to be scheduled for initial hearings. Some courts continued their master calendar hearings if they did not have enough time to pull the files."

Immigration court defendants will experience delays of various lengths on the postponement of their cases.

"The delay in getting those cases back on calendar will depend on the court, but for example, in Los Angeles the non-detained cases will not be heard for another year or so," says USC's Reisz.

And the delays resulting from the shutdown may continue, even now that the government is open, Reisz warns. "You also have to take into account that 35 days of shutdown means that all those cases with deadlines for filing applications, exhibits, supporting documents, etcetera during that time was not done. So even people with cases this week and the next few weeks may have to be continued because judges and government counsel won't be prepared, because they have not received or had time to review pertinent documents and prepare for cases."

The Trump administration has repeatedly come under fire for funding an immigration court backlog that it has pledged to slash. Following Trump's inauguration in 2017, the White House told journalists it would slash the backlog by half before the 2020 presidential election. By the end of November, Syracuse University's TRAC found that the backlog was 50 percent larger than it had been at the end of January 2017. 

Analysts have blamed an array of Trump administration policies for exacerbating the backlog. Under the administration of former Attorney General Jeff Sessions, the Department of Justice ended the use of administrative closures, a practice in which immigration judges withheld rulings while plaintiffs underwent immigration application procedures. The practice allowed judges to prioritize more urgent cases. The department also required that immigration judges close at least 700 cases a year with a low rate of appeal in order to receive a favorable review. But analysts have said that the quota frequently necessitate appeals. As the judges find themselves forced to plow through their caseloads, the odds of defendants challenging their decisions skyrockets.

The shutdown may amount to the administration's latest blow to its own promise to alleviate the backlog. "This only exacerbates the immigration court backlog which has not been helped by the increase in removal enforcement, reduction in enforcement priorities—so everyone is a priority, zero tolerance policies, and the ending of certain programs including prosecutorial discretion," Reisz says. "It also defeats some of the current administrations recent attempts to address the backlog by adding judges, courtrooms, and setting a case quota for immigration judges. In addition to all this, it really affects the morale of those federal employees tasked with enforcing deportations and removal which, arguably, could weaken security systems already place."

It remains unclear why an administration that has pledged to streamline the immigration court system and ramp up deportations has so frequently done just the opposite.