More Immigrants in Limbo as Government Shutdown Due to COVID-19 Leads to Widespread Immigration Court Hearing Cancellations
The partial shutdown of the Immigration Court in the wake of COVID-19 has already impacted hundreds of thousands of immigrants awaiting their day in court. Because of the Court's current backlog of more than a million immigrants waiting for their cases to be heard, canceled hearings due to COVID-19 will certainly increase hearing delays for months and probably years to come.
Compiling exact numbers of immigrants affected at this point is simply not possible[1]. As of the end of May, TRAC's estimate—given currently available data—is that 368,000 immigrants with cases now before the Immigration Court have already been adversely affected. However, this does not represent the full scope of the long-term impact of COVID-19 on the Courts. TRAC estimates that once scheduling delays for the rest of the individuals in the Court's backlog are taken into account, 850,000 immigrants—or more than three-quarters of a million—may well be affected by the shutdown[2].
How TRAC Derived These Estimates
TRAC divides those directly impacted thus far into three groups: (1) removal cases that were not concluded because the final hearing was canceled; (2) new removal cases filed during the shutdown which will have to wait much longer before an initial hearing will even be scheduled; and (3) existing removal cases already in the Court's huge backlog at the beginning of the shutdown, which were not at the final stage in the hearing process and which had their hearing canceled[3].
The number of hearings canceled for immigrants at the end of the hearing process—i.e. group (1) above—is of particular interest, since the inability to hold a final hearing means the Immigration Judge cannot decide the case. Therefore, a decline in final hearings is reflected in a decline in case closures, represented in Figure 1. Case closures declined dramatically since the hearing cancellations began at the beginning of the shutdown. The data cover closures through the end of April, which is based on the latest case-by-case data TRAC received from the EOIR.
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As shown in Figure 1, monthly case completions were running around 42,000 in January and February of this year. When Court closures began in mid-March, case completions dropped sharply. By April, after an entire month of canceled hearings, case completions fell to less than 6,500.
At the end of May, TRAC estimates that over 85,000 immigrants have already had their hearings canceled. These immigrants will now have to wait many months—if not years—before they have their day in court when their cases finally get resolved[4].
However, the impact of Immigration Court closures is more far reaching than this. Each month, a flood of new cases are added to the Court's workload—group (2) above. During April, the EOIR recorded 41,233 new cases had been filed with the courts. This number is likely less than the true total of filed cases because there are often delays between when a case is filed with the Court and when the Court records a filing in its database. While this delay is typical under normal circumstances, this delay is likely to be longer during the shutdown. The Courts will likely not be able to take action on these cases until the Court reopens and an initial hearing date then can be set. Also, the court may be short-staffed as a result of the pandemic. Thus, it is unlikely that the Court is updating its records as each new arrival comes in.
Even at a 40,000 per month—which is certainly an undercount—it is likely that, as of the end of May, 100,000 new removal cases have been filed during the two-and-a-half months of the current shutdown. Court records indicate that detained cases made up only 12% of new cases. This is significant because unlike non-detained cases, the Court has (for the most part) continued to schedule hearings for detained cases during the shutdown. The remaining estimated 88,000 non-detained cases are impacted not because their hearings were canceled, but because they have to wait even longer before their first hearing is scheduled.
Most immigrants in removal proceedings are not at the beginning of the process nor at the end, but somewhere in the middle of the Court's backlog when the shutdown began. According to data TRAC received from the EOIR, the Immigration Courts had already canceled 219,219 hearings as of the end of April due to the government shutdown according to the recorded reasons for cancellation[5]. With hearing cancellations continuing throughout May, hearing cancellations recorded due to the shutdown have undoubtedly grown. A conservative estimate would be that cumulatively at least 280,000—or more than a quarter million—cases have already been canceled through the end of May, although not all cancellations have been recorded yet.
As discussed above, 85,000 out of the estimated 280,000 hearing cancellations were for final hearings, as reflected in the drop in case completions. The rest of the estimated hearing closures will face months or years of delay before the immigrant's next hearing can be scheduled—with more hearings needed even after the next one to fully resolve each immigrant's case.
Indeed, four out of ten (38%) of these cancellations were for the initial master calendar hearing—that is, their first hearing. Eight out of ten (89%) of these cancellations included initial and reset master calendar hearings. In these hearings, typically a group of immigrants appear together. The rest were primarily individually scheduled hearings that were canceled where arguments contesting removal were to be heard. Around 500 canceled hearings were bond hearings, even though detained immigrants were not supposed to have bonds hearings canceled.
Finally, a more realistic count of immigrants impacted would include those whose scheduled hearings were after the end of May since for some their next scheduled hearing is many, many months into the future. For many if not most of these who are at earlier stages in the hearing process, they will need to schedule further hearings after the one now scheduled. Their subsequent hearings will also be delayed because of the increasingly clogged schedules of immigration judges. This group could easily number half of a million.
Footnotes
[1] There are three reasons why precise data about hearing cancellations and delays is not yet available. First, there is a typical delay between the time a hearing is canceled and the time that Court staff enter a reason for the delay into the Courts case management system. The Court's database does not yet contain a reason code for many cases that were recently canceled. Second, there is a decline in accuracy for entries in the field that provides a reason for hearing cancellations. Third, the EOIR's case management system has built-in limitations that do not always make it possible to determine whether or not a scheduled hearing actually took place. Moreover, EOIR's internal studies reportedly show significant errors in the recording of the reasons for hearing closures. Unfortunately, the agency is refusing to release these statistics to TRAC even though such factual information is required to be publicly available under the Freedom of Information Act.
[2] The conservative estimate includes 88,000 newly arriving cases who are yet to have their first master calendar hearing scheduled due to Court closures, plus 280,000 whose hearings have been canceled. The three-quarters of a million figure adds in those currently in the backlog whose hearings have not yet been canceled, but face increased delays in getting their hearings scheduled which will be needed to resolve their cases.
[3] Usually removal proceedings involve a series of hearings. An initial "master calendar" hearing, very much like an arraignment in a criminal case occurs. Subsequent master calendar hearings are usually scheduled to give the immigrant time to find an attorney, and, once an attorney is found, to prepare the immigrant's case. If the immigrant contests their removal then a further individual hearing to hear their arguments will usually then take place.
[4] The data show that the cancellation of hearings during March reduced case completions by 15,094 as compared with numbers in February. For April, the drop was 35,333. Given there has been little change in court closures in May as compared with April, TRAC's estimate for May is a drop similar to April's. (15,094+35,333+35,333=85,760)
[5] This includes hearings that were canceled because the detained immigrant was quarantined due to COVID-19.