TBA Law Blog

Posted by: Christy Gibson on Dec 16, 2013

By Bruce E. Buchanan*

When the Federal Government was shutdown between October 1 and 16, 2013, it had different effects on government operations covering immigration.


The U.S. Citizenship and Immigration Services (USCIS) did not close during the government shutdown because it is a fee-based agency, which is not dependant on federal government funding for its operations.  Thus, the USCIS continued to process petitions and applications, fingerprint applicants, and conduct interviews. 


However, E-Verify, which is jointly administered by the USCIS and the Social Security Administration, was not in operation during the government shutdown.  Thus, employers, who utilize E-Verify to verify the employment authorization of new employees, could not submit new hires to E-Verify nor could employees challenge a non-confirmation during this period of time.  At the conclusion of the shutdown, the USCIS issued guidance on how employers should deal with those issues that arose during the government shutdown. 


Immigration Courts were shut down, except for cases involving detained individuals.  Since Memphis, our only Immigration Court in Tennessee, does not handle detained cases, the Memphis Immigration Court was closed for the duration of the government shutdown. 

One of the initial effects of the shutdown was the postponement of cases set for October 1 to grant Cancellation of Removal to Respondents.  (In fiscal year 2013, the maximum number of the granting of Cancellation of Removal was reached well before the end of the fiscal year; thus, many cases were set for October 1, the first day of FY 2014 in order for Immigration Judges to formally grant Cancelation of Removal after hearing the cases toward the end of FY 2013.)  After the shutdown ended, the Immigration Judges initially re-set the cases for October 31 and November 1.  However, in many of those cases, the Immigration Judges issued written orders granting Cancellation of Removal without a hearing.

For other Immigration Court Cases set for Master Calendar or Individual Calendar hearings, the cases have been re-set for six months or later.  In some cases, where Respondents have a weak case for relief or no relief is available, this delay is helpful for Respondents.  However, for those cases where it is probable that relief will be awarded, Respondents are suffering because of this delay. 


The effect of this shutdown on Immigration and Customs Enforcement (ICE) varied.  The ICE attorneys assigned to the non-detained Immigration Court docket and worksite enforcement cases were furloughed.  On the other hand, ICE attorneys assigned to detained Immigration Court docket, such as Oakdale, Louisiana, remained on the job.  ICE agents, who are non-attorneys, remained on the job conducting business as usual. 


The Department of Labor, who processes Labor Certifications and Labor Condition Applications and investigates certain immigration-related cases, was closed throughout the government shutdown.  Thus, many employment-based cases were delayed for at least two and one-half weeks.  Likely these cases were delayed even longer because when the shutdown ended, there was a backlog of cases to handle. 

Overall, the government shutdown had some detrimental effects on immigration cases, which will take many months to bring back to pre-shutdown normal operations.