It has now been two weeks since the government shut down.  During that time, the media has spent a lot of time on closed national parks and Tea Party politicians storming barricades at the World War II Memorial–a recent addition to the National Mall, whose barricades are less daunting than those stormed in Normandy, France in 1943.  Yet the day-to-day machinery of the government has also closed in much less visually melodramatic ways.  The unsexy administration of justice has ground to a halt and hundreds of thousands of American businesses, employers, families and individuals await the resolution of the budget/health care impasse so that they can get on with their lives and their work.

As an immigration lawyer, my focus tends to run to the agencies that administer the immigration laws.  In fact, most of them are operating.  Customs and Border Protection, which guards the airports and the borders is unaffected by the shutdown.  U.S. Citizenship & Immigration Service, the decider of applications for status in the U.S., is open for business, due to the fact that it is funded by the immigrant applicants themselves and not the federal budget.  Immigration & Customs Enforcement, responsible for overseeing the removal of individuals from the U.S. and representing the government before the U.S. immigration courts, is also operating if not quite at full steam.  The deportation and investigation officers remain busy identifying those subject to removal, detaining them and removing them from the U.S.  However, the lawyers for the government who appear before the courts are furloughed and the courts they appear in front of are also offline.

The Executive Office for Immigration Review (EOIR), the nation’s immigration courts, has received the brunt of the “funding hiatus,” as the voice mail messages of the furloughed employees say.  The immigration courts are largely shuttered. In courts around the country, that would normally hear thousands of cases a week, operations are suspended.  Courts continue to hear detained cases, but the vast majority of cases are not detained and those cases are not being resolved, adding to the court’s already notorious backlog.  When cases are not heard, people’s lives are upended.  Individuals are waiting for asylum hearings that may allow them to bring their family from danger abroad.  Many long-term residents look forward to having their day in court where they can remove the specter of removal which has haunted them for, in some cases, years.  For example, I have a client whose hearing was cancelled last week.  Now twenty years old, she has resided in the U.S. since she was three.  The government and the judge agree that she should receive her residence, yet a number of factors, none of them her doing, have conspired to leave this case in limbo.  Hurricane Sandy cancelled one hearing, the Congressional quota on visas in her category cancelled another and the budget/health care impasse has cancelled a third.  No one can say when she will get her hearing and she and her family will continue to wait while they figure out what will become of their lives.  The old axiom of “justice delayed is justice denied” has rarely been more true.

Yet, detention and removals continue.  Congress has mandated that 30,000 detention beds remain full.  Thus, ICE stacks up bodies in for-profit detention centers without regard for dangerousness or flight risk. The costs of detaining so many immigrants gets little attention and, as we face a budget showdown, it is amazing that no one in Congress has scrutinized the gross amounts of money paid to for-profit prisons to detain the non-dangerous.  One does not need to be a cynic to believe that the lavish contributions of the for profit prison industry to Congressional campaign put the kibosh on such inquiries.  The shutdown of the immigration courts while the removal machine goes on with barely a hiccup is a grotesque parody of the government’s love affair with enforcement while paying only grudging lip service to the administration of justice.

However, immigrants and their families will continue to dream. They, unlike Congress, will rise daily and do their jobs growing our food, caring for our children, and cleaning our cities.  In this shutdown, they will have little relief from the specter of sudden arrest, detention and removal, but also little hope that they will get a fair chance to prove why they deserve to remain.  That knowledge rarely diminishes the immigrant spirit.  Five hundred and twenty one years ago, intrepid explorers left Spain for the unknown and landed on this continent, forever changing the course of the world.  Every day, idealistic and entrepreneurial immigrants leave their homes and families in an effort to achieve the American dream, a process that goes on undaunted, no matter how much political dysfunction undermines those values.

By Andres Benach, Member, AILA Amicus Committee