A DHS Shutdown Would Halt These Immigration Services—But Not Enforcement

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When the Department of Homeland Security’s money expires on February 13, 2026, Immigration and Customs Enforcement agents will keep investigating, detaining, and deporting people. Immigration courts will close. This imbalance is intentional.

This protects enforcement from budget fights that can shut down other federal agencies. Immigration courts depend on money Congress approves each year. When that money runs out, judges stop working and hearings get canceled—but ICE keeps operating.

For someone with an immigration hearing scheduled in late February, the case gets postponed indefinitely. For someone detained by ICE, continued detention occurs without access to the court that would normally review whether that detention is legal.

Detention facilities stay staffed. Deportations proceed. The machinery that removes people operates independently of the system designed to determine whether removal is justified.

Immigration Courts and Visa Processing Close

The Executive Office for Immigration Review closes entirely during shutdowns because its funding comes from yearly approvals. Judges don’t work. Hearings don’t happen. Cases don’t move forward.

Cases get rescheduled months or years later. People who had waited years for their hearing date find themselves waiting years more.

The system employers use to apply to hire foreign workers (called FLAG) goes completely offline during shutdowns. Employers can’t file new applications. Pending applications freeze mid-process.

E-Verify, which employers use to check that new workers can legally work, shuts down because it depends on yearly funding. Companies hiring workers must use alternate verification methods.

Visa services at U.S. embassies and consulates nominally keep running because they’re funded by application fees. High-volume posts with substantial fee revenue keep operating normally. Smaller embassies in countries with less visa demand may reduce services to emergencies only.

Fee-Funded Agencies and Enforcement Operations Keep Running

USCIS, which handles most legal immigration applications from people already in the U.S., stays substantially operational because it’s funded by application fees rather than Congressional approvals. USCIS keeps accepting applications, scheduling interviews, and processing cases.

Background checks need FBI workers, who are sent home during shutdowns. USCIS has indicated it will focus on national security cases first, which means routine applications move to the back of the line.

ICE keeps enforcement operations running. Detention facilities remain staffed. Deportation flights keep going. Enforcement sweeps proceed.

Customs and Border Protection similarly keeps operating, meaning Border Patrol agents keep patrolling and port inspectors keep processing travelers.

The Transportation Security Administration maintains airport security screening with nearly all officers working—without pay.

Multi-Year Budget Authority Outside Annual Approvals

The asymmetry between what stops and what continues stems directly from how Congress chose to fund enforcement. ICE and CBP now have access to money that remains available regardless of whether Congress passes new funding bills.

This wasn’t an oversight. Enforcement advocates deliberately structured things this way to insulate ICE and CBP from budget leverage. Congress can no longer constrain enforcement operations by withholding money—the money has already been provided for multiple years.

Congress still controls funding for courts, visa processing, and administrative functions, but gave up control over enforcement funding. When Democrats threaten to block DHS funding to get policy changes on enforcement, the threat primarily affects services that protect due process rights, not the enforcement operations Democrats want to constrain.

Why Congress Separated DHS From Other Agencies

Congress gave DHS only a continuing resolution through February 13, creating a separate deadline while other agencies received full-year funding.

The separation was strategic. Democratic leaders wanted leverage to demand changes to ICE’s operational practices. Republicans rejected nearly all of them, arguing that how ICE runs its operations should be decided by the President’s team rather than being dictated through policy requirements attached to budget bills.

This disagreement raises a basic question: Can Congress limit ICE when ICE’s funding doesn’t need yearly Congressional approval? If ICE keeps running no matter what Congress does, how can Congress control it?

Detention Without Court Access Raises Due Process Questions

In Zadvydas v. Davis, the Supreme Court ruled that the government cannot detain removable individuals indefinitely. Detention must be limited to a reasonable time while the government works on deporting someone—usually 90 days, with extra time if deportation is actually happening.

When courts close and individuals remain in detention without access to the judges who would determine whether that detention is lawful, a gap emerges: the government keeps holding people in custody, but the administrative process that would review whether that custody is legal doesn’t operate. People can sue in federal court to challenge whether their detention is legal, but immigration court—the main place to challenge detention—is closed.

Scholars argue this violates people’s right to a fair legal process. The government can’t use a shutdown rule to avoid giving people their legal rights.

No court has clearly ruled on this problem. Some detainees sought emergency relief in federal district courts during the 2018-2019 shutdown, but the question of whether shutdowns create a constitutional violation when detention continues but courts close remains unresolved.

The 2018-2019 Shutdown Created Lasting Backlogs

The 2018-2019 government shutdown lasted 35 days—the longest in U.S. history. ICE is a law enforcement agency, so more of its workers were required to keep working. Detention facilities remained fully staffed.

Courts closed completely, canceling hearings. After the shutdown ended, courts had to reschedule all those cases, placing them months or years further out on the calendar. Eight months later, courts were still working through the backlog.

Asylum seekers who had waited months or years had to wait even longer without knowing their status. Some cases were rescheduled 6 to 12 months later. Others were pushed years into the future.

USCIS stayed open because it’s funded by application fees, but it slowed down because FBI workers were sent home. Green card applications took longer. Work permit renewals experienced delays. Naturalization applications requiring background checks moved more slowly.

The Labor Department stopped processing applications for foreign workers and wage requirements. When the shutdown ended, employers faced a substantial backlog. During the shutdown itself, employers who needed to sponsor workers couldn’t proceed at all.

Private Prison Contractors Keep Operating With Multi-Year Funds

During a shutdown, it’s unclear whether ICE can force contractors to keep running detention facilities if there’s no money to pay them. The government used its multi-year funding to promise contractors they’d be paid during the 2018-2019 shutdown.

ICE has indicated it will use its multi-year budget authority to ensure contractors keep operating and receive daily payments during the February 2026 shutdown. This means detention facilities will keep running with roughly 40,000 to 45,000 individuals in custody.

Reopening Creates Lasting Backlogs and Delays

When Congress passes new funding, the government doesn’t reopen right away. Courts must reschedule canceled hearings. Backlogs must be processed. Systems must come back online.

After the 2018-2019 shutdown ended, courts took weeks to issue new hearing notices for canceled cases. Clerks worked to reschedule hearings. Individuals received new notices by mail. Some notices were lost or misdirected. Some people didn’t know their hearing was rescheduled and missed it—which can result in a deportation order.

Courts fell further behind for months as they handled rescheduled cases and new cases at the same time. The work of rescheduling delayed decisions on other cases.

USCIS started processing applications again, but delays continued even after the shutdown ended. The agency focused on security cases first, delaying regular applications.

The Labor Department reopened, but employers had to wait for applications that were stopped halfway through to be finished. The backlog created during the 2018-2019 shutdown extended well into spring, with applications experiencing delays of months.

Democratic Leverage Primarily Harms Non-Enforcement Services

Democrats are threatening to shut down DHS to force changes to how ICE operates. The shutdown primarily harms non-enforcement services—courts, visa processing, asylum administration. Enforcement operations keep running unimpeded.

This creates a strange negotiating situation. Democrats threaten to shut down DHS, but the shutdown doesn’t stop ICE. It stops the courts that would check whether ICE is breaking the law.

Republicans argue this means Democrats have no real power—that threatening to shut down DHS doesn’t stop ICE, so Republicans can let the shutdown happen. Democrats counter that Republicans should want to avoid a shutdown because even though ICE keeps running, other functions halt, and the human and political consequences are real.

This debate shows a real problem: different parts of government are funded differently, so shutdowns affect them differently.

Potential Solutions Congress Has Not Pursued

Congress could change how ICE and CBP are funded so they need yearly Congressional approval. This would give Congress real power and mean that if funding runs out, both enforcement and administrative functions freeze together. Republicans have explicitly rejected this, arguing that enforcement shouldn’t be subject to budget leverage.

Congress could say courts are essential and must stay open during shutdowns. This would require legislative action that hasn’t been proposed.

Congress could pass laws limiting how ICE operates instead of tying those limits to budget bills. Republicans have resisted this, arguing that operational decisions should remain with executive officials.

Congress could change how multi-year funding works so it has to be approved every year. Both parties would have to agree that multi-year funding is a problem, and Republicans have shown little interest.

In the short term, Congress will probably pass a temporary fix. Democrats might accept a longer temporary funding bill with small limits on ICE, or Republicans might agree to require body cameras in exchange for full-year funding. The basic imbalance would still exist.

A System That Works One Way

The current crisis exposes structural flaws in how enforcement and adjudication are funded. Congress created a system where ICE keeps operating when shutdowns close the courts that would check if ICE is breaking the law.

A government shutdown creates hardship for millions of immigrants: they wait longer without knowing their status, can’t see a judge, and have no idea when decisions will be made.

People who support ICE prefer shutdowns because ICE keeps operating no matter what Congress does. This creates a problem: people trying to limit ICE can’t use shutdowns to do it.

Until Congress changes how ICE and courts are funded, this problem will keep happening. Future shutdowns will create the same problem: ICE keeps operating while courts close, so people stay detained without seeing a judge.

Fixing this requires Congress to decide how to fund ICE and courts—something both parties have avoided.

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