On Monday, January 21st, we entered the sixth week of the federal government shutdown, making it the longest shutdown of the federal government in U.S. history. Government agencies that receive federal appropriations and are not deemed “essential service” providers do not have the required funding to continue operating and have been shuttered until further notice. This includes the non-detained immigration courts, which are responsible for handling removal and deportation proceedings, including asylum cases being heard by immigration judges, as well as the Immigration & Customs Enforcement (“ICE”) Office of Chief Counsel, which is the official name for the office that prosecutes removal and deportation cases. Practically speaking this means that all immigration court cases that were scheduled for hearings during the shutdown period have been canceled and will be rescheduled for future dates when the government reopens. Given that the backlog of immigration cases awaiting adjudication in the courts resulted in a 2-3 year scheduling delay PRIOR to the shutdown of the federal government, absent an increase in staffing and reorganization of removal cases at the court level, the shutdown is likely to increase the delay significantly. For some immigrants -for example, those facing removal/deportation who do not qualify for permanent immigration benefits – this delay may be welcome. For others, however, – such as asylum-seekers who are uncertain about their futures and separated from family overseas – this further delay may be devastating. It is also possible that the shutdown will result in the cancellation and rescheduling of cases that are scheduled for the weeks and/or months immediately following the reopening of the government as the immigration courts and the ICE Office of Chief Counsel struggle to restart normal administrative processes (such as file transfers and submission and review of evidence) post-shutdown.
United States Citizenship & Immigration Services (“USCIS”), which adjudicates most applications for immigration benefits for immigrants not in removal or deportation proceedings (benefits such as family and employment-based visa petitions and work permits) is still open and processing benefit applications. This is because USCIS is fee-based and not reliant on federal appropriations to maintain operations. So far USCIS has indicated that the shutdown is not expected to affect the adjudication of these types of petitions, even if the shutdown continues long-term. Importantly, affirmative asylum applications (meaning asylum applications filed with USCIS by immigrants that are not in removal proceedings in the immigration court), which do not require a filing fee, are still being adjudicated according to the pre-shutdown processing order, which is last in first out. This means that individuals that file an affirmative asylum application this month can expect to receive an interview at the Asylum Office that has jurisdiction over their address within 6-8 weeks of filing. The ICE Office of Enforcement & Removal Operations (“ERO”), which is the enforcement component of ICE that employs the deportation officers that most people commonly think of when referring to ICE, is still fully operational. This means that individuals who have scheduled check-ins with ICE and/or their deportation officers MUST report to their check-in during the shutdown, or risk being classified as a “fugitive alien” and subject to immediate removal from the United States.
SMA removal defense lawyer Kate Chaltain was recently interviewed by The Daily Beast about the effect of the government shutdown on clients in removal proceedings. You can find the article HERE.