The Trump administration has attempted to postpone at least nine challenges to its immigration policies during the government shutdown, including cases that could determine whether people can be held in detention centers without bail.
Federal judges have repeatedly said no.
In the detention-without-bail case, Judge Brianna Fuller Mircheff said that if the deportation apparatus is still running during the shutdown, an immigration-related challenge should continue too.
“Despite the government shutdown, Immigration and Customs Enforcement continues to remove noncitizens from the community; noncitizens continue to be detained under the policy that is challenged in this case; and immigration courts continue to process cases involving detained respondents,” the court’s Friday order states.
“Given that individuals are continuing to be detained subject to the challenged policy, the Court declines to indefinitely stay adjudication of whether such individuals are lawfully detained,” it states.
Immigrant advocacy groups filed the class action lawsuit in California against a July 8 policy change ending bond eligibility for people who have lived in the country for years but are in detention centers while their immigration cases continue.
It’s one of at least nine legal challenges to the Trump administration’s immigration policies that the Department of Justice has sought to pause during the shutdown, which is now in its second week with no progress toward an end.
Most judges are insisting on keeping their scheduled deadlines, pointing to continued immigration enforcement and urgency of the lawsuits, which also include challenges against the end of temporary deportation protections for Venezuelans, Kilmar Armando Abrego Garcia’s deportation and federal funding freezes for so-called “sanctuary” jurisdictions.
Starting Oct. 1, the first day of the government shutdown, DOJ attorneys began approaching courts with requests to delay immigration-related proceedings as part of the department’s plan to limit civil litigation during the lapse in federal funding.
The DOJ shutdown contingency plan states that it will continue to deal with cases where the safety of human life or protection of property would be compromised significantly by a delay. It also states attorneys have to keep working if judges deny the department’s requests.
Some groups suing the government over immigration matters argue that there would be serious impacts to putting the cases on hold.
The case over whether the Department of Homeland Security can end temporary protected status for Venezuelans, for example, affects about 600,000 people directly and could have repercussions for others with these protections.
“It is important because it’s one of the only hopes with little possibility of continuing the protection for people with TPS,” said Jose Palma, a national coordinator for the National TPS Alliance, which is suing Secretary of Homeland Security Kristi Noem over ending TPS for Venezuelans.
Palma said moving ahead with the legal challenge is particularly vital in light of a Supreme Court decision Friday that allows the government to cut off deportation protections and work authorization for Venezuelans while the ultimate fate of TPS for the population is determined in lower courts.
The case is set to move forward in the 9th Circuit Court of Appeals, where a three-judge panel denied the federal government’s request to pause the case on Friday because of the government shutdown. However, a federal judge agreed to pause a similar case out of the U.S. District Court for the District of Massachusetts until the end of the shutdown.
Despite DOJ’s efforts to pause proceedings in the lawsuit seeking to stop the second deportation of Abrego Garcia, U.S. District Judge Paula Xinis in Maryland is requiring the DOJ to bring to a Friday hearing witnesses with first-hand knowledge of the steps the government has taken to deport him to Eswatini, Costa Rica or any other country.
During a Monday hearing, Xinis lost her patience with the government attorneys’ inability to provide information about the administration’s plan to once again deport Abrego Garcia, who was wrongfully deported to a maximum security prison in El Salvador. She said she wouldn’t pause the case because of “important fundamental questions” at stake, according to Bloomberg.
DOJ also failed to secure an indefinite pause in the lawsuit filed in February by several cities and counties over the Trump administration’s attempts to withhold funding for “sanctuary” jurisdictions. Santa Clara, California, and San Francisco, along with multiple other counties and cities, have been granted preliminary injunctions by District Judge William Orrick twice, as the lawsuit has grown to include other counties, most recently at the end of August.
Following the most recent ruling, the Trump administration’s attorneys had a deadline of Oct. 16 by which they could respond, but on Oct. 1, they filed for a motion to stay, similarly citing the government shutdown as the reason for the need for an extended deadline.
“Absent an appropriation, Department of Justice attorneys and employees of the federal defendants are prohibited from working, even on a voluntary basis, except in very limited circumstances, including ‘emergencies involving the safety of human life or the protection of property,’” the DOJ motion states.
Attorneys representing Santa Clara cited the DOJ’s own contingency plan in response, noting “the Department’s [contingency] plan assumes that the judicial branch will continue to operate, though possibly at a reduced level, through the lapse.”
Orrick promptly denied the motion to stay, and the administration has until the original deadline to reply to the ruling.
The judge’s motion “helps ensure that accountability doesn’t stop when it’s inconvenient for those in power,” said Jonathan Miller, the chief programs officer at Public Rights Project, which is representing some of the cities in the lawsuit.
“The federal government can’t use a shutdown as an excuse to halt oversight while continuing to pursue the policies we’re challenging,” he said.