Under Deportation Push, Immigration Courts Shift: Non-Detained Cases Deemed ‘Essential’ During Shutdown

U.S. immigration courts are operating under a significantly altered policy during the current government shutdown, with hearings for immigrants not held in detention now considered “essential” and proceeding as scheduled. This decision marks a sharp contrast to previous shutdowns, where such cases were suspended.

The policy change comes as the Executive Office for Immigration Review (EOIR), which runs the immigration courts, grapples with a massive backlog of over 3.4 million pending cases. The immense backlog includes specific national groups; for example, 9,659 cases involving Nepali nationals were pending in immigration courts as of August 2025. These cases are heavily concentrated in key cities: New York (3,674), San Francisco (1,909), and San Antonio (1,775), with smaller numbers spread across other locations like Concord, Denver, and Dallas.

During past government shutdowns, including the one in 2019 which saw an estimated 80,000 to 94,000 cases postponed, only hearings for detained individuals were typically allowed to continue. However, the Trump administration has designated the non-detained docket as essential this time, citing its expansive focus on immigration enforcement and border security.

“As of now, U.S. immigration courts (EOIR) remain fully operational. Hearings, filings, and case processing are continuing as scheduled,” said Bashu Phulara, an Immigration Attorney based in New York. “During previous shutdowns, all non-detained immigration court hearings were deemed ‘non-essential’ and suspended. This time, they are deemed essential.”

This departure from past practice is also highlighted by professional organizations. The American Immigration Lawyers Association (AILA) noted on its Practice Alert, “Please note: currently, cases on the non-detained docket are proceeding as usual. This is a departure from previous shutdowns, when generally immigration court cases on the detained docket would proceed while non-detained docket cases would be reset for a later date when funding resumes.”

New York-based immigration attorney Ramesh Shrestha confirmed the operational shift: “Despite the government shutdown, courts are open, and hearings are being held for both detained and non-detained cases. In past shutdowns, courts that conducted non-detained cases only would be closed.”

The decision to maintain full court operations is rooted in the administration’s stance on immigration enforcement and backlog management, as detailed in its continuity planning.

The U.S. Department of Justice FY 2026 Contingency Plan operations during a lapse in appropriations explicitly states: “A national emergency was declared by President Trump citing the threat to the national security and economy of the United States caused by illegal migration. EOIR’s primary mission is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws. EOIR currently has a backlog approaching four million cases, which would be greatly exacerbated during a shutdown absent excepted activities.”

“EOIR staff, including administrative oversight and support staff, that are needed to process immigration cases and appeals involving detained respondents, including criminal aliens, are excepted employees in the event of a shutdown. Non-court employees, including general counsel, policy, and human relations employees, will be reduced to the minimum necessary to support excepted operations. Employees are excepted on the basis of the recognized exceptions to the Antideficiency Act, including the exception for activities necessary to protect life and property,” the Contingency Plan further explains.