Government shutdown will hinder the overtaxed immigration courts

The federal government’s looming shutdown promises to slow the already backlogged immigration courts. As have all Executive Branch departments, the Justice Department—the federal agency that includes the Executive Office for Immigration Review which houses the Board of Immigration Appeals and the immigration courts—expects to furlough thousands of workers if Congress doesn’t approve a budget to keep the government funded past midnight Monday.

According to the DOJ’s contingency plan for dealing with a revenue shortfall—a “lapse in appropriations,” as the agency put it—the EOIR will continue to process certain immigration case matters. U.S. Department of Justice, FY 2014 Contingency Plan 1 (September 27, 2013). Some employees will need to continue coming to work, the agency’s plan states, because they “are needed to process all immigration cases and appeals involving detained aliens, including criminal aliens; provide Headquarters oversight of excepted functions; [and] provide administrative support for excepted functions….” Id. at 5

With immigration courts chronically under-resourced and cases taking an average of 556 days to get through the immigration court system, a reduction in government staff threatens major problems. They key to determining just what kind of impact a shutdown will have on EOIR’s operations, of course, is to have a sense of just how many of its employees will be required to keep going to work. The Justice Department reports that it has approximately 1,339 employees working in the EOIR. Of these, 30% (402) will be “excepted” from the furlough produced by a shutdown. Id. at 11 tbl.2. The rest will stay home. Of these 402 EOIR workers who will be required to keep going to the office, 153 are classified as attorneys and the other 249 as “other staff”. Id.

In a separate response to the American Immigration Lawyers Association, the EOIR stated that, if furloughs were to happen, “it will affect hearing times.” EOIR/AILA Liaison Meeting Minutes 11 (April 11, 2013). This sounds like an understatement. Already overwhelmed immigration courts will have a tough time keeping up with the work that they already have. Importantly, the government’s immigration law enforcement agencies will not see a similar reduction in personnel. The Department of Homeland Security’s contingency plan indicates that its Immigration Enforcement and Removal Operations unit, ICE Homeland Security Investigations, port-of-entry services, and border security operations will continue to operate during a lapse in appropriations. All of these, DHS explains, are law enforcement operations “necessary for safety of life and protection of property” and thus exempted from the effects of a shutdown.

Hopefully any shutdown that does occur won’t last long. Aside from its impact on the country generally, which I’ll leave to others to address, a shutdown would place enormous constraints on the overburdened immigration court system and leave unknown numbers of individuals and families in a legal limbo that no one deserves.

Update (10/1/13): The EOIR has provided a list of every immigration court and indicated its operating status during the shutdown. By my count, 16 courts are entirely closed. Another 25 are open to hear detained cases only. The remaining courts indicate they are “open”–presumably on a more-or-less normal status. In addition, the BIA continues to accept emergency stay requests for detainees, and the BIA clerk’s office remains open for all filings.