By Cara Bayles
January 27, 2019
Luz had been looking forward since October to her Jan. 9 court date, which would have decided whether she was eligible to stay in the United States, where she's lived for 46 years.
"We went through Christmas and New Year's, just counting the days down," said Luz, who asked that Law360 not use her last name for privacy reasons.
But when her Legal Aid Society attorney, Margaret Garrett, called New York Immigration Court last month, she was greeted by a recording that said "due to a lapse in appropriations, court operations are limited to cases involving detained individuals."
"Non-detained cases will be rescheduled when the court reopens for regular operations," the recording said.
The judge would have decided whether Luz was eligible to seek relief from removal proceedings.
"It's really frustrating," Garrett told Law360. "We want to just present it and move forward."
Luz is one of 5,320 New Yorkers whose hearings had been canceled as of Jan. 11 — a number that's no doubt gone up since then.
Unlike federal district court, immigration court falls under the purview of the U.S. Department of Justice and has been subject to partial closures due to the government shutdown that began in December. Immigration judges are hearing only the cases of people who are in custody, and according to a study from Syracuse University, the court's backlog for non-detained immigrants is rapidly growing. Nationwide, courts have canceled about 20,000 hearings per week.
By Friday, an estimated 86,000 hearings for non-detained immigrants had been canceled nationwide, according to numbers from Syracuse. Because the caseload was already large before the shutdown, and judges' calendars are jam-packed, those hearings might be rescheduled years in the future.
The Backlog Grows
It isn't easy to guess how long it will take to get canceled hearings back on the calendar. That depends on backlog, which varies wildly from judge to judge, according to Judge Ashley Tabaddor, president of the National Association of Immigration Judges. She said some members of her organization have 5,500 cases, and their calendars are already booked through the end of 2020.
On Friday, the president signed a bill ending the shutdown for three weeks while lawmakers continue to negotiate a long-term funding compromise. But even if a deal is reached before Feb. 15, the monthlong shutdown's effect on immigration courts will outlast the protracted battle between President Donald Trump, who refused to approve a budget without funding for a wall along the U.S.-Mexico border, against Democrats, who said they wouldn't negotiate over border security as long as the shutdown continued.
"The irony isn't lost on us that the immigration court is shut down over immigration enforcement," Judge Tabaddor said. "This is not the first time that we see action on the part of the agency and administration that has been inconsistent with their stated position of reducing the backlog."
But Andrew Arthur, a former immigration judge who is now a law and policy fellow at the Center for Immigration Studies, said that view only looks at the short term. The center is a nonprofit think tank that advocates for more restrictive immigration policies.
The president's proposed immigration package would have added 75 more immigration judges to decide cases, he said, and he contended that ramped-up border security would mean fewer immigrants entering the country.
"If the proposals the president has put forward are adopted, we would have the capacity to do those cases more quickly," he told Law360. "The president's strategy, if successful, will deter additional individuals from entering the U.S., have them processed in a safer fashion, and would prevent many cases from entering the general immigration system. In the long run, that would cut down on the backlog."
Caught in a Holding Pattern
Luz finds herself trapped in the middle of this policy debate over the U.S.-Mexico border, even though when she emigrated from the Dominican Republic at the age of 9 as a lawful permanent resident, the only border she crossed was through customs at John F. Kennedy Airport in New York City.
In 2015, immigration officers knocked on Luz's door in Westchester, New York, confronting her about criminal convictions for writing bad checks. The crux of Luz's ability to fight removal proceedings rests on the argument that none of her convictions — all nonviolent crimes — were aggravated felonies.
In October, Garrett filed a motion making that argument. If the immigration judge agrees, Luz can apply for relief by arguing deporting her would create hardship for her husband, who is recovering from a botched gastric bypass surgery, and her 39-year-old daughter, who underwent treatment for leukemia and has been permanently disabled from a stroke. Both are ailing U.S. citizens who rely on her. The hearing scheduled for Jan. 9 has yet to be rescheduled.
Meanwhile, Luz says, she's in a holding pattern. She came to the U.S. as a child, and says she doesn't have family to turn to in Santo Domingo. The delay took a toll on her daughter, who has attended all of Luz's court hearings and visited her in detention. The daughter is prone to seizures and was admitted to the hospital shortly after her mother's hearing was canceled.
"It's been a daily battle," Luz said. "We don't know what the future's going to hold. You have a lot of sleepless nights. Every time you hear a knock on the door, you're jumping up. I'm taking Zoloft, because my nerves are very, very bad."
Garrett said her only other experience with a canceled hearing in New York immigration court was the result of a snow day, and in that case the hearing was rescheduled for a year later.
"I have absolutely no idea when the case will be rescheduled for," she said. "All my clients are suffering from severe to moderate stress about being in proceedings. It's always hanging over their heads. I just imagine them going about their day and all of a sudden it pops into their head: 'I could be deported.'"
Due Process in the Balance
The stress of those caught in immigration court can be exacerbated by the fact that delay can change the strength of a case, according to Jeff Chase, a former immigration judge now working as an immigration attorney in New York.
The U.S.' official country conditions assessments can change so that asylum seekers are no longer eligible for refugee status, he said. People pleading exceptional hardship for a U.S. citizen could lose their bid if an elderly relative dies, or a child ages out of minor status.
"There are so many moving parts in this. People are really unfairly having their likelihood of success impacted," he said. "Witnesses may become unavailable, people's memories may begin to fade over time. To get put to the end of the line and wait another two to three years and see if they even still have a claim is certainly a denial of due process."
The shutdown's severe impact on judge's dockets has contributed to a larger years-long backlog crisis, Judge Tabaddor said.
During Jeff Sessions' tenure as attorney general, he implemented several new case management policies, including quotas requiring judges to complete 700 cases per year. He also nixed the ability of judges to administratively close cases that can't be adjudicated until outside factors — like the grant of a visa or a state court ruling — are decided.
But Arthur said that administrative closures got out of hand during the Obama administration and were used to hide the backlog.
"They swept cases under the rug in order to make the problem seem smaller than it really was," he said. "It's not a good policy. It runs contrary to direction in the regulations and Supreme Court precedent that cases be completed as quickly as possible."
However, Judge Tabaddor said the change has meant she must call hearings during which nothing can happen, a process that's "saddling the court with extra work."
"If it wasn't so tragic, it would be comical," she said. "Instead of the time we need to focus on cases, we have to waste time being a bean counter. It's an unbelievable misconception of what a judge and a court should be."