A previous version of this piece ran on Dec. 26, 2018.
President Donald Trump dug in his heels on the issue of the wall along the Mexican border that he promised during his 2016 campaign, resulting in a government shutdown that’s been going on for 28 days, and counting. Trump announced once again on Friday that he will be making a “major announcement” about the border situation Saturday at 3 p.m. at the White House.
I will be making a major announcement concerning the Humanitarian Crisis on our Southern Border, and the Shutdown, tomorrow afternoon at 3 P.M., live from the @WhiteHouse.
— Donald J. Trump (@realDonaldTrump) January 18, 2019
Ironically, however, Trump’s determination to keep undocumented immigrants out of the United States through a wall has had the effect of keeping many of them in the U.S. longer.
The effects of the shutdown at Immigration Court were recently described this way by Documented:
Since Donald Trump threw the federal government into partial shutdown over the “crisis” surrounding $5.7 billion in funding for a wall with Mexico, however, the space has been deserted, with a lone guard sitting at a table across a message board labeled “Immigration Court” on a recent Wednesday afternoon. As a result, far away from the border where Trump wants to keep immigrants out of the U.S, a new—and real—crisis is brewing in the country’s immigration courts.
The backlog of cases before the nation’s administrative immigration courts has reached over 800,000 cases nationally, according to data maintained by the TRAC project at Syracuse University. As the government shutdown becomes the longest in U.S. history, immigration courts like the ones at 26 Federal Plaza, which are part of a Justice Department section called the Executive Office for Immigration Review (EOIR), remain unable to process caseloads of thousands of hearings per day.
It estimated that if the shutdown continues until the end of January 2019, the number of canceled hearings for detained undocumented immigrants will climb to 10,000.
The article went on to talk about how employees were blindsided by the shutdown and court stall.
“It’s not like they sent out notices to the clients who were set to go to court, or the attorneys,” Director of the Immigrant Protection Unit at the New York Legal Assistance Group Jodi Ziesemer said. Instead of notices about cancellations, she was greeted by “a locked door.”
The case backlog is creating problems now, but that is bound to continue once the government reopens, given the number of cases. The shutdown may also pose problems for other courts. It was said that the U.S. District Court for the Southern District of New York is running out of funding and will stop adjudicating habeas corpus petitions.
A habeas corpus writ is “used to bring a prisoner or other detainee (e.g. institutionalized mental patient) before the court to determine if the person’s imprisonment or detention is lawful.” In short, defense attorneys will be able to file their petitions but the court will not be taking any action until funding is back. Only in the case of an “emergency need” could that a person be released. The upshot here is that proceedings to determine whether people have been lawfully detained could soon be on hold.
Ziesemer would otherwise add that the huge case load will likely cause problems in court.
“Everything is already scheduled, so once the government reopens there might be hundreds of cases that same day,” she said. “That is definitely a problem, because there is a lack of communication and information, and the burden is so high for immigrants who have to go to court. If they miss their hearing, they’ll be ordered removed.”
The surprise among attorneys about the effects of the shutdown was plain to see early on.
Immigrants and immigration attorneys alike were caught by surprise on December 26 when they went to scheduled hearings in immigration courts all over the country. They showed up only to find out that, due to the shutdown, their cases were postponed without prior notice from the body that oversees them, the Department of Justice’s Executive Office of Immigration Review (EOIR).
People were not happy.
Immigration court for non-detained cases is deemed “non-essential” and closed during the shutdown. No funding no court. Apparently that also means no notice. There is absolutely no comprehensible information out there to inform people that court is closed.
— Stacy Tolchin (@TolchinImm) December 26, 2018
— Key, Esq. (@kishenybarot) December 26, 2018
I called NYC To confirm. BUT GODDAM POST A NOTICE OR SOMETHING.
— Stacy Tolchin (@TolchinImm) December 26, 2018
It really is ridiculous. The only notice I’ve seen is on @DOJ_EOIR regarding Christmas eve and then that dense DOJ contingency plan posted on the courts’ site.
— Kevin Lo (@kevinchlo) December 26, 2018
It wasn’t until hours into the day when EOIR sent out the following notice:
During the current lapse in appropriations, the following operating status is in place for EOIR:
Detained docket cases will proceed as scheduled.
Non-detained docket cases will be reset for a later date after funding resumes. Immigration courts will issue an updated notice of hearing to respondents or, if applicable, respondents’ representatives of record for each reset hearing.
EOIR tweeted an announcement saying that immigration courts would be closed due to an executive order from President Trump. No such announcement was tweeted about Wednesday. The EOIR website had a notice saying, “Due to the lapse in appropriations, Department of Justice websites will not be regularly updated.” The same appeared to apply to their social media accounts. I emailed EOIR about this at time, and—not surprisingly—no one responded.
The fact that the government didn’t tell people about this is awful, and so are the unintended consequences. It’s also notable that the reason their cases are being delayed is pretty inconsistent with the Trump administration’s hardline stance on immigration. Only “essential” government functions continue during the ongoing shutdown. The reason why non-detainee cases aren’t being heard right now is because they have not been deemed essential.
Who makes that determination? President Donald Trump himself.
That’s right, the man who blasted the Obama administration for letting so many defendants in illegal border crossing cases go free, whose own administration insisted on locking up every single offender, resulting in family separations, doesn’t seem to think prosecuting all of these cases is essential.
That means that all of the people in these cases who are being prosecuted for being in the country illegally will now get to remain here longer in order stick around for their next court date. In some situations that could be months, in others, where judges have a larger case load, it could be years.
From a president who describes the undocumented immigrant population as being largely comprised of dangerous criminals, this makes no sense whatsoever.
Ronn Blitzer is the Senior Legal Editor of Law&Crime and a former New York City prosecutor. Follow him on Twitter @RonnBlitzer.
[Image via Win McNamee/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.