The more than 42,000 foreigners with cases in the immigration courts the partial closure of the federal government presents a mixed scenario.
José Guerrero, an immigration attorney who practices in Miami, Florida, described the case of one client who was due to report this week to Immigration and Customs Enforcement (ICE). "He has a deportation order, we submitted a remedy to stop it, but it was denied and he was called to an appointment," he said. Guerrero planned to file a motion to reopen the case so his client is not arrest and deported, "but since the courts are closed, we can't file it and so the risk of deportation is high," he added.
The scenario becomes more difficult as the days go by. "There are thousands of canceled hearings that will be rescheduled when the crisis passes. The problem is that nobody knows when it will be resolved."
More than 800,000 federal employees remain unpaid, with about half still working.
The other crisis
The partial closure began on December 22 after Congress failed to approve $5.7 million that President Donald Trump requested to expand the wall along the border with Mexico, one of his main campaign pledges.
The president argues that a "crisis" on the border threatens U.S. national security, though critics say the real crisis is south of the border which has prompted thousands to seek asylum in the United States. Indeed, the shutdown "has caused another crisis," said Matt Adams, director of the legal department of the Northwest Immigrant Rights Project in Seattle, Washington. With the majority of immigration courts few cases are being heard.
"People not in detention are having several problems," said Adams. "What we see most are cases of people who have waited three or four years for a final hearing. But their cases are suspended and we don't know if they will have to wait another three or four years for a judge to decide their cases."
Adams pointed out that the shutdown favors "anyone without a strong case," because it delays an eventual deportation order. "But for many it is a critical situation, especially if they have a case of asylum and are waiting for approval so they can bring their relatives," he said. Since the courts are closed, the hearings were suspended and must be rescheduled, with those cases potentially moving to back of the queue.
"There are many cases where immigrants waited years for the last hearing and now their futures hang in the balance," said Alex Galvez, an immigration attorney in Los Angeles. "The closure of the government is not a legal excuse to forgive or favor this type of cases," he added.
The Transactional Records Access and Information Center (TRAC) of Syracuse University said that as of January 11 the number of cancellations in immigration courts was estimated at 42,726, and that another 20,000 will be added every week the shutdown continues.
Prior to the shutdown, the immigration courts had a backlog of 786,303 cases.
Dana Leigh Marks, honorary president of the National Association of Immigration Judges (NAIJ), told Univision News that the rescheduling could take up to three years, depending on the length of the closure. That could make a critical difference in some cases, for example when an immigrant is seeking legal status through a minor who might suffer extreme hardship if they are deported. If the child reaches 21 before a judge takes a decision due the shutdown, they would no longer be able to argue extreme hardship.
A petitioner seeking to naturalize a foreign spouse who might have waited three years for a hearing canceled this week, might also have to wait several more years, meaning they would not be able to travel outside the country to visit relatives.
For immigrants in detention it's different. "Their trials continue, the courts have not suspended their hearings," said Jaime Barrón, an immigration lawyer in Dallas, Texas. "We continue to defend these people and present motions for each case."
Howver, Barrón warned that the courts "are only taking motions in emergency cases," with no guarantee, for example, that a deportation could be halted while other legal options are being considered.
Lawyers say that immigrants not in detention are not considered a national security priority and, therefore, do not require an emergency motion. "We are talking only about the detainees. The courts are still working to address these cases. But, they are only listening to emergency cases, "he said.
Other affected case:
- Immigrants waiting for a background check for residency
- Immigrants with seriously ill children who were waiting for a final hearing and the child is about to turn 21. If at the next hearing the child has turned 21, they will lose the case.
- Cases in which an entire family is arranging papers to receive residency (green card), including minors. If by the next hearing the children are 21 year old, they automatically will be excluded.