Coronavirus and the Immigration Crisis

March 16, 2020 - the Executive Office for Immigration Review - the agency that oversees our nation’s immigration courts -  announced they were postponing all non-detained master calendar hearings. All other hearings were proceeding as scheduled.

March 18, 2020 - the United States Citizenship and Immigration Services (USCIS), under the Department of Homeland Security (DHS),  announced they too were closing their doors for all " routine in-person services." The news spread quickly as immigration practitioners scrambled to fully comprehend the gravity of the closures.

March 18, 2020 -  the Immigration and Custom Enforcement (ICE) announced they were scaling back arrests during the pandemic except for individuals deemed “mission critical” or to “maintain public safety and national security.”   ICE, also under the DHS, was created after the 9/11 attacks. ICE is the enforcement arm of immigration - the police officers if you wish.  

The United States Immigration Courts is the entity in which Judges conduct removal proceedings against individuals.  The process consists of two hearings. The Master Calendar Hearing (MCH) and the Individual/Merits Hearing (IH). The MCH is similar to the first appearance in the criminal setting.  Nothing terrible typically happens at a MCH.  In fact, most can be conducted telephonically.  It is where the Judge informs the individual of why the “charges” are being brought against them.  This is typically done in open court. The individual is asked to plead to a number of charges. Keep in mind, there is no right to an attorney during these proceedings.  

On the other hand the IH is where the case is “tried”.  It is where the final order of the immigration judge is rendered.  It is where, if the individual fails to mount a defence, he/she will be ordered removed from the United States.

There are currently 733,365 pending immigration cases.   There are approximately 350 immigration judges.  This means that each immigration judge has over 2000 cases.  The average wait time for a court date is 721 days - close to two years.  Certainly the immigration court system has its challenges. 

The USCIS, the administrative arm of the mega agency, the DHS also closed their doors.  This closure is not as drastic only because the USCIS is not as understaffed. This agency adjudicates petitions filed by individuals that are seeking immigration benefits.   Unlike the Immigration Courts, USCIS does not order indivdiuals removed from the United States. The wait times for the adjudication of petitions with the USCIS varies from field office and jurisdiction. 

In FY 2019 USCIS naturalised 834,000 new citizens, granted lawful permanent residence to 577,000 individuals, processed 2.2 million work authorization and processed 40 million cases though e-verify. Very few individuals wait over two years, for their cases to be processed by the USCIS.  So a closure of USCIS will not be as detrimental. 

On the contrary a closure or disruption of the Immigration Courts can mean added wait times for hundreds of individuals.  For those individuals that lose their place in the immigration court line due to court closure - this could be devastating.  It should be noted the Courts have decided to continue holding Individual Hearings. Keeping in mind, these hearings require in-person appearances by all parties involved.  If ordered removed, the individual will have 30-days to appeal the ruling of the Court. The appeal must be filed and received within the 30 days.  

The decision by the Court to move forward with IHs and cancel MHs can mean the end of the road for many.  For the lucky few - it will be a chanced opportunity to finally have their immigration matter resolved - in most cases after having waited for many years. 

There are over 40,000 detainees currently in ICE custody.  Some are considered high-risk for exposure to the novel Coronavirus.  These detention centers are not owned by the Department of Homeland Security - but are operated by third party owners.  Detention centers are hot-beds for the spread of this virus. Even so there has been no move to release detainees based on their risk level.  Citing concerns, the American Civil Liberty Union and the Northwest Immigrants Rights Project filed a lawsuit demanding the release of high-risk detainees.  In response to the lawsuit, ICE maintains they are implementing measures to quarantine the elderly.   The United States immigration system was a crisis before the Coronavirus.  As we wait to see where COVID-19 will take us, it is incumbent upon individuals to continue pursuing their immigration relief and resolution.  Immigration was and will continue to be a priority for the current administration.  

WHAT'S NEXT? 

• If an individual has a MCH - this will be rescheduled until further notice.  Always ensure the Court has the most up-to-date address if and when your notice is mailed. 
• If an individual has an IH - these are still scheduled.  Individuals should plan on attending. 
• For matters with the USCIS, the agency has suspended “routine in-person” matters. Ensure the agency has your most up-to-date address by filing form AR-11.

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Attorney Dionnie Wynter Pfunde is an immigration law attorney. She practices law in the continental United States. She specializes in removal defense. She can be contacted at www.wynterimmigration.com.