One common theme running through the press concerning the government shutdown is the effect it is having on the immigration-court backlog. For example, as Bloomberg reported on January 11, 2019:
The shutdown of the federal government over the president's campaign promise to build a wall along the southern U.S. border is taking its toll on already backed-up immigration courts.
Hearings for non-detained individuals are being taken off the calendar due to the lack of funding and will need to be rescheduled once the partial shutdown ends. The problem will be finding an opening for those cases on judges' calendars, which are already filled up for the coming three years or more.
Here is a modest proposal: Assign each of the immigration judges (IJs) who are furloughed to detained calendars, and have them hear cases from those respondents who are newly arrived and who have been referred to removal proceedings to file asylum applications after positive credible-fear determinations.
Many immigration courts already have video teleconferencing (VTC) capability, or at least access to VTC. Having heard hundreds of cases via VTC, I can assure you that it is an effective way to complete proceedings, and consistent with due process. Case files can be sent via FedEx or the U.S. Postal Service (USPS) to those remote courts, and late-filed documents can be sent via PDF.
Having at least some proportion of those IJs hear detained cases would serve four purposes: It would enable them to work during the shutdown; it would help to mitigate any increase in the backlog (and would likely reduce it in the long run); it would free up detention space; and it would serve the interests of justice by speeding up the asylum process for those who are detained, and who have applications pending.
Is there a need? Yes. For example, as the journal America reported on December 26, 2018:
In Laredo, detention centers are full and there are too few immigration judges, [Benjamin de la Garza, the executive director of Catholic Charities in Laredo] said. While immigrants and asylum seekers wait for the cases to be decided, Catholic Charities and other groups step in to help.
As the Bloomberg article above suggests, IJs in detained courts are generally considered "essential", and therefore have to report (even if they are not getting paid yet). It would appear that those IJs are interested in getting back to court to cut down on the backlog. For example, as IJ Dana Leigh Marks, former president of the National Association of Immigration Judges (NAIJ), told NPR on December 29, 2018:
We've never been in a situation that is so dire with regard to the backlog of immigration cases nationwide. There are an estimated 1.1 million cases pending before the immigration courts across the United States. And when we have to shut down, those cases are delayed, sometimes for years, before we have space on our dockets to be able to reschedule them.
Similarly, The Hill quoted current NAIJ President Ashley Tabbador, who said that IJs "have been told that they cannot return to work or even volunteer their time until the shutdown is over." Tabaddor also stated that "she worries that they will have a 'monumental' task on their hands once the shutdown is over."
It is important to note that hearing asylum cases while respondents are detained is an effective way to shrink the future backlog. Those cases can generally be completed more quickly, at least while the respondents are in detention. As I noted in a December 6, 2018, post: "ICE's average length of stay in immigration detention is about 40 days, while the average length of time for immigrants not in custody to have immigration cases on court dockets is more than eight years." By utilizing the expertise of otherwise furloughed IJs, those aliens who are in detention with meritorious claims can have those claims heard quickly, and be released. Similarly, those aliens who do not have meritorious asylum claims can be ordered removed, thereby freeing up detention space.
I am sure that there are logistical issues that would need to be accommodated, and paperwork that would need to be completed, in order to ensure that this process would run smoothly, effectively, and most importantly, in accordance with the rules governing the shutdown. Given the scope of the backlog, however, it is worth it for the Department of Justice to at least explore this option.