Originally Published in The Daily Beast.
Nearly five years after fleeing government oppression in her native Togo, Aicha hoped that her long journey through the American immigration system was finally coming to an end. But three weeks before a long-scheduled hearing in U.S. immigration court, the federal government ground to a halt over President Donald Trump’s proposed border wall—and Aicha fears she may have to start the asylum process all over again.
“From 2015 to 2018, I didn’t hear anything, until I received a letter to appear before the immigration court, which is where I’m supposed to be on Tuesday,” said Aicha, who spoke to The Daily Beast through an interpreter and under a pseudonym out of fear for her safety. “But with this situation, I’m not sure I will be there, or what the outcome will be if I can’t be there.”
As the partial government shutdown over Trump’s long-promised border wall enters its third week, the president appears no closer to accepting a deal that doesn’t provide money for a physical barrier along the U.S.-Mexico border. But among the many government functions that have stalled during the shutdown are proceedings in the nation’s immigration courts, exacerbating the very crisis that Trump claims his border wall would solve—and leaving immigrants like Aicha worried that their asylum cases will be delayed for years.
Federal immigration courts across the country, under enormous administrative strain even before the government ceased to function, have been forced to push back thousands of cases per day as scheduled proceedings on asylum cases, removal hearings, and appeals against deportation are delayed indefinitely, awaiting what the Department of Justice’s Executive Office for Immigration Review called a “reset” once funding resumes.
Immigration lawyers told The Daily Beast that the delays are devastating for their clients, many of whom have already waited years to have their day in court.
“It’s almost like another traumatic event in that person’s life,” said Jason Dzubow, a Washington D.C.-based immigration attorney specializing in asylum law who represents Aicha. “For them, they’ve already suffered a trauma which is the basis of their claim for asylum, but then they suffer a second trauma—the process of seeking asylum in the United States.”
“The psychological effect on people who are already pretty vulnerable is very damaging,” Dzubow continued. “They’re telling me, ‘the things that happened in my home country were bad, but this wait is really causing me to be suicidal.’”
Federal immigration courts face a backlog of at least 800,000 cases, according to the Transactional Records Access Clearinghouse at Syracuse University, not including another 300,000 closed cases that the Department of Justice has ordered to be reopened. Because immigration proceedings are considered civil, rather than criminal, the only immigration hearings being conducted as scheduled are for undocumented immigrants currently being detained in federal custody. Those hearings are considered priority cases in part because the government is paying for detainees’ housing and food—although government employees still won’t be paid in the meantime.
Nearly all other immigrants, including asylum-seekers with “rock-solid” cases, are being moved to the back of a years-long line for a time slot on a judge’s docket, said Michael Wildes, an immigration attorney and mayor-elect of Englewood, New Jersey, who represented Melania Trump and her family in their immigration proceedings.
“Immigration is riddled with Band-Aid approaches to enforcement—this just hurts us as a nation even further,” Wildes said. “There is no national interest in slowing down the courts.”
With no process for fast-tracking hearings for immigrants whose cases are reset during the shutdown, moving to the back of the queue could add years to a person’s case, causing “enormous delays,” Wildes said. “Hearings will back up even more egregiously than they already have.”
Wildes hopes that when a deal is struck between Congress and the White House, it includes a massive increase in funding for immigration judges.
“There is an enormous divide between the amount of traffic and judges,” said Wildes. “In many ways, immigration has been looked upon as a stepchild in our legal system, where people recognize that it’s only a civil matter rather than a criminal matter. It actually has greater import—particularly when someone is facing banishment from the country.”
Unless Congress and President Trump can come to an agreement by Tuesday, Aicha’s scheduled hearing will be one more added to the backlog.
Aicha served as a high-ranking pastor in Togo, a country in West Africa that has been under the rule of the Eyadéma family following a military coup in 1967. There, she advocated for Togolese women and children’s rights, activities that earned her the attention of Togo’s repressive government.
According to a 2017 report published by the State Department, Togo’s military-backed government’s human rights violations include arbitrary arrest, lack of due process, and government restrictions on freedom of assembly—particularly political assembly. For those reasons, Aicha came to the conclusion that her life was no longer safe in Togo.
“I was in danger because the government threatened me, harassing me, saying that I was pushing Togolese youth and women against the government, and giving them the wrong ideas,” Aicha said. “That’s why I ended up coming here in this country to seek asylum and to see if I could maybe be protected, and have the right to speak freely and help save people’s lives in Togo, especially women and children, who are living in very, very bad conditions.”
Aicha left Togo for the United States in 2014, leaving behind two children who later fled the country themselves.
“My children ran away from Togo, quitting school, [to stay] in Ghana,” Aicha said, “but because the government was following them, even to Ghana, they decided to go even farther away from Togo—so they went away to China.”
If Aicha’s asylum case is approved, her children are both eligible to join her in the United States after nearly five years of separation. But with the government shutdown almost certainly stalling her hearing, Aicha fears that she will remain in legal limbo—and separated from her children for years.
“I was hoping that the case would be resolved” on Tuesday, Aicha said. “I have been under such distress, depressions, for a long, long time. My life has not been easy.”
Until the shutdown ends, immigration attorneys have no answer for clients who hope to know when they will be able to see a judge.
“No clue. We literally have no idea,” Kate Chaltain, an immigration attorney based in New York City, told The Daily Beast, adding that the additional wait time could range from three months to more than two years, or even longer.
“Last year when the government shut down, I had a client who had a merits [hearing] that was cancelled,” Chaltain said. “It was rescheduled for 2020.”
The first week of the shutdown didn’t result in immediate mass resets for scheduled hearings, in large part because the caseload was lighter during the holiday season. But with the start of the new year, Dzubow said, the backlog is poised to be compounded by an already crowded hearing schedule, a “chain reaction” that will lead to even more delays in the future.
“January is a busy time for immigration court—hearings get pushed into the new year because of the holidays, so we’ve already got a backlog even when the government isn’t shut down,” Dzubow said. “If this thing drags on, it snowballs, and more people are going to be affected.”
The delays can have potentially catastrophic effects on immigrants hoping to receive asylum, a process that, by design, prevents them from leaving the United States in order to see relatives in their home country. Meanwhile, those relatives may face danger or even retaliation by hostile governments as an asylum seeker waits for a hearing on the merits of their case.
“Any time you add time to a case like that, if that person is separated from family in their home country, it increases the time they are apart,” said Chaltain. “Sometimes people die; sometimes spouses and children are in more danger; sometimes country conditions change. And so the person who has been waiting for seven years doesn’t have a strong case anymore, which can be complicated if they’ve spent seven years here establishing a life, or have new children.”
One of Dzubow’s clients, an Algerian human rights activist, had a long-scheduled hearing cancelled last week, and now has no idea when he’ll be able to see his family, who remain in Algeria and are relying on his asylum claim to help them find safe haven in the United States.
“He’s got his wife and his children in Algeria, and he’s concerned about their safety, and now they don’t know when his next court date is going to be,” Dzubow said. “For people like that who want to move their cases along, it’s going to be very difficult… People come here expecting to seek help, and then they’re caught in this system.”
Ironically, the shutdown’s effect on the court system is gumming up the mass-deportation apparatus envisioned by President Trump, the shutdown’s primary architect, who has said that the shutdown will last “months, or even years” until he gets $5.6 billion in funding for the border wall. Trump’s demand effectively delays removal proceedings for hundreds of thousands of undocumented immigrants who would likely not be granted asylum.
“The whole point is, Trump’s trying to deport people, and this is causing cases to be pushed off,” said Dzubow, who noted that the large percentage of asylum seekers who would have their claims rejected cannot enter removal proceedings until the immigration courts are funded again.
“Their deportation is going to be pushed off further,” Dzubow said. “It’s sort of an ironic result of the shutdown.”
But while Trump may be cutting off his nose to spite his face, the delays are hardly a silver lining for those who might face removal proceedings.
“There are some cases that we want adjudicated quickly, and there are other cases where it’s not in the client’s interest to move as quickly,” said Carlos Moctezuma García, an immigration attorney working in McAllen, Texas. “But the uncertainty of not knowing what’s going to happen is super stressful regardless.”
“Obviously for [immigrants] who don’t have strong cases to begin with, then a delay might seem good for them,” said Chaltain. “But generally, in my experience, it’s a hardship.”
One client, Chaltain said, told her after his hearing was rescheduled that he was willing to return to his home country to be with his family, “even though he probably would be killed.”
“He couldn’t bear his family being away and in danger anymore. But if they killed him, his family might be left alone,” Chaltain said.
Short of Congress passing an emergency funding resolution to keep the immigration court system running, there is little that judges, attorneys, or those losing hearing dates can do in the meantime but wait.
“My message would be to ask the Congress to be able to work together, and to open the offices so that people can work and to help my case,” Aicha said. “Not knowing what my situation is… I’m very distressed.”