DOJ Seeks to Continue Civil Immigration Cases in Shutdown

The Justice Department has directed US attorneys to proceed on all civil immigration cases during the government shutdown, departing from protocols that restricted work on such matters when federal funding lapses.

Guidance from the deputy attorney general’s office “is that we should NOT seek a stay on any civil immigration matters, whether affirmative or defensive,” said Francey Hakes, director of the Executive Office for US Attorneys, in an Oct. 1 email to all 93 US attorneys that was obtained by Bloomberg Law.

That directive appears contrary to DOJ’s shutdown contingency plan published this week. The plan said “civil litigation will be curtailed or postponed to the extent this can be done without compromising to a significant degree the safety of human life or the protection of property.”

It further advised civil litigators to request that courts postpone active cases, except for those that meet the exception for cases where life or property is at risk.

While in prior shutdowns—including during President Donald Trump’s first term—DOJ interpreted this same exception to generally not permit civil immigration work unless judges denied motions to postpone, this one comes after Trump declared a national emergency due to what he called the national security threat posed by illegal migration.

That declaration may prompt the administration to assert a broader interpretation of which federal employees and types of work can continue when Congress fails to fund the government.

A department spokesperson declined to comment about Hakes’ shutdown guidance. Hakes is a former prosecutor and Fox News commentator appointed in July to run the department’s central office for advising the nation’s chief federal law enforcement officials.

Breaking From Practice

There are other indications that Trump loyalists within the Justice Department are interpreting shutdown protocols for civil litigators to break from past practice.

US attorneys based in Los Angeles, Miami, and New Jersey have ordered their staffs, including civil litigators, to continue working since the shutdown began Oct. 1, according to multiple people familiar with the situation.

The Washington, DC, US attorney’s office, which has spearheaded a White House crackdown on street crime, has yet to issue any officewide shutdown instructions, said two people familiar with the matter.

Other US attorney’s offices and legal divisions within the Justice Department’s headquarters have mostly furloughed civil litigators, except when when judges deny extension requests, said additional sources familiar with those offices.

“Plans are based on each U.S. Attorney’s discretion (in consultation with EOUSA) based on the nature and scope of the district’s case load and relative staffing, which of course varies considerably across the 93 offices,” a department spokesperson said in a statement, referring to the shorthand for the executive office for US attorneys.

Criminal prosecutors remain working across the department, as is customary in past shutdowns.

The prohibition on seeking stays comes even as at least 10 district courts have issued standing orders automatically extending some deadlines or pausing civil cases in which the federal government is a party.

It also contradicts the posture of DOJ’s civil division, which sought a stay Oct. 1 in a major legal challenge to the administration’s cancellation of temporary protected status for about half a million Venezuelans. But that case is being handled by the civil division’s office of immigration litigation, which has distributed a greater share of its caseload to US attorney’s offices this year.

Blanket Order

In practice, a blanket order forbidding DOJ lawyers from seeking stays in civil immigration cases would apply to a wide range of cases relevant to the Trump administration’s aggressive border security agenda. It would affect individuals appealing final deportation orders or visa denials, denaturalization proceedings, and lawsuits challenging administration immigration policies.

Department veterans said they were surprised by the guidance, given that litigation extensions were sought in most civil immigration proceedings during prior shutdowns.

“Approaching it with a broad stroke is a tough fit with the statutory requirements,” said Jeff Robins, a longtime career official at DOJ’s office of immigration litigation, who left last year. “I suppose it’s a good thing for everyone that they may still be open for civil defensive business, but it’s not the normal.”

The safety of life and protection of property standard is laid out in the Antideficiency Act, which requires DOJ and other federal agencies to cease certain functions that haven’t been congressional appropriated.

In theory, members of the public can request that the Justice Department’s inspector general investigate alleged violations of the statute. But it’s rare for that to result in employee discipline or other consequences.

People who coordinated prior DOJ shutdown plans said that they couldn’t recall an instance in which offices would automatically declare their entire civil teams exempt from furloughs before giving the courts a chance to rule on requests for postponements.

These former department officials, who like most people interviewed spoke on condition of anonymity out of fear of reprisal or to share internal deliberations, said the default was usually to ask judges for stays.

The exception for civil immigration cases was reserved for legitimate threats to national security or public safety, such as the removals of people convicted of violent crimes.

Various DOJ offices are also able to keep employees working if they have leftover funds from other noncongressional streams, such as from fees collected in settlements.