Immigration courts remained open Wednesday, even as much of the government shut down. Unlike previous shutdowns, they are continuing to handle cases of immigrants outside of detention centers.
The Executive Office for Immigration Review, which operates immigration courts, listed all courts as open as of Wednesday. The American Immigration Lawyers Association alerted its members Wednesday morning that cases for immigrants not held in detention centers are proceeding.
“Court seems to be moving forward as quickly as possible,” said Kerry McGuire, a Minneapolis-based senior attorney for the Catholic Legal Immigration Network, Inc.
The Department of Justice cited President Donald Trump’s declaration of illegal immigration as a national emergency, along with the backlog of millions of cases in its Sept. 29 contingency plan. It declared 90% of employees at the office that handles immigration courts as excepted from a furlough.
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“EOIR currently has a backlog approaching four million cases which would be greatly exacerbated during a shutdown absent excepted activities,” the document states.
That’s a break from the past: During the 2019 government shutdown, only 48% of EOIR’s employees continued working. More than 80,000 hearings were canceled, according to TRAC Immigration, a nonprofit data research center at Syracuse University.
EOIR, which is part of the Justice Department, did not respond to a request for comment.
The operational decision fits into the Trump administration’s broader efforts to keep deportations and other immigration matters moving, regardless of funding fights.
But it caused confusion at courthouses, according to attorneys. The contingency plan specified that the staff members who handle cases related to detained respondents would be “excepted” from the shutdown, causing many immigration attorneys to believe other cases would be put on hold.
That wasn’t the case, said Aaron Hall, an attorney and a member of the American Immigration Lawyers Association’s EOIR committee.
“This morning, we start to get word from lawyers across the country that there was confusion at the courthouses, even with court staff, but that ultimately they got word that all the cases were going to go forward,” Hall told NOTUS.
He said it was hard to know whether any concerns would arise in court operations in the coming days without more transparency from the government.
McGuire said there’s still uncertainty among lawyers about how courts will function during the shutdown as other government workers are furloughed.
“It’s not clear to me yet how that will impact the abilities of the courts to operate, and how that could impact folks and noncitizens who are in removal proceedings,” McGuire said. “And it seems like a lot of these decisions are being made more last minute than they have ever been before.”
The immigration court system is already dealing with mass layoffs of judges, with nearly 20 firings last week, according to NPR.
Other parts of the country’s immigration enforcement network will continue operating with most employees. Multiple Department of Homeland Security accounts on X have highlighted their excepted status during the shutdown.
“We will not stop working until every illegal alien has been removed from our shores,” the DHS posted on X. Immigration Customs and Enforcement posted that “U.S. immigration laws and enforcement efforts remain unchanged.”
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