By Hannah Albarazi

Law360 (March 31, 2020, 7:13 PM EDT) -- Immigration hearings in non-detained cases are postponed through May 1, 2020, the U.S. Department of Justice office that oversees the immigration court system announced Monday, while current and former judges are continuing to demand that all immigration court proceedings be halted during the novel coronavirus pandemic.

The DOJ's Executive Office for Immigration Review said Monday that Migrant Protection Protocols master calendar and merit hearings scheduled through April 22 are also rescheduled. The office had initially delayed all non-detained hearings through April 10.

As of Tuesday, only a handful of the dozens of immigration courts throughout the country had closed in an effort to slow the spread of the coronavirus.

The National Association of Immigration Judges — representing immigration judges, who are prohibited by law from speaking out publicly — released a sharp statement Monday urging immigration courts to close and calling on the Executive Office for Immigration Review to treat people with greater humanity.

One anonymous immigration judge wrote, "I don't say this lightly, but EOIR has demonstrated that [it needs] to be gutted and rebuilt from the ashes. I've never witnessed an utter lack of concern for people like I have here. In my former life, we treated captured Taliban and ISIS with more humanity. Moreover, I've never seen worse leadership. A crisis usually brings good and bad to the light. We have nothing but darkness."

The immigration judges' union said Monday that EOIR's failure to adequately respond to the pandemic and its failure to close courts promptly had created a dangerous environment for judges, court staff, detained respondents, practitioners and anyone else who must interact with the court process.

"EOIR's refusal to close detained courts causes a cascade of social interaction that puts all of us at risk," the union wrote. 

The fight to close immigration courts is also playing out in federal court, where immigration advocacy groups, with the support of former immigration judges and members of the Board of Immigration Appeals, are urging an Oregon federal judge to issue an emergency order mandating that U.S. immigration courts adopt policies and procedures that protect public health.

The immigration advocacy groups said that keeping the immigration courts open requires immigrant families and their lawyers to choose between going to court and endangering public health or risking deportation.

The former immigration judges and members of the Board of Immigration Appeals filed an amicus brief Monday backing the legal groups' request and urging the court to require that all immigration proceedings be halted, calling the EOIR's approach to the COVID-19 pandemic "scientifically and legally inadequate."

In their amicus brief, the former judges wrote that EOIR's "self-inflicted infrastructure defects hamper its ability to appropriately respond to the pandemic," adding that unlike the federal judiciary and state courts, the immigration courts lack a fully functioning electronic case management system, such as PACER/CM-ECF.

They urged EOIR to determine whether proceedings were essential or non-essential and then postpone all non-essential hearings through at least June 1, 2020. Essential proceedings should be conducted remotely or with additional safeguards, "including a presumption of release from custody," the former judges wrote in their amicus brief.

The EOIR's announcement Monday that it was postponing non-detainee hearings, the Migrant Protection Protocols master calendar and merit hearings comes after mounting scrutiny in recent weeks as immigration courts remained open while other courts across the country closed to slow the virus' spread.

Earlier this month, Ashley Tabaddor, president of the National Association of Immigration Judges, wrote a letter to James McHenry, director of the EOIR, warning that immigration hearings could bring dozens of immigrants and their attorneys into the courtroom at once, facilitating the spread of the virus.

The American Immigration Lawyers Association and more than 100 other legal services providers signed on to a letter expressing their "extreme concern at the lack of guidance or proactive initiatives" taken by the EOIR.

Sens. Elizabeth Warren, D-Mass., and Ed Markey, D-Mass., also urged the EOIR earlier this month to mandate that CDC posters in both Spanish and English be posted in immigration courts and asked the office what steps it was taking to safeguard people in the courts.

EOIR said in a statement posted on its website that it and the Department of Homeland Security are "deeply committed to ensuring that individuals 'have their day in court' while also ensuring the health and safety of aliens, our frontline officers, immigration court professionals, and our citizens."

An EOIR spokesperson told Law360 in a statement Wednesday that their office is taking the health and well-being of its employees very seriously and that it is continuing "to receive filings and to hold hearings for detained aliens while monitoring and minimizing risks presented by COVID-19."

EOIR is not requiring anyone to file documents in person and is encouraging the use of telephonic appearances, the spokesperson said.

"Recognizing that cases of detained individuals may implicate unique constitutional concerns and raise particular issues of public safety, personal liberty, and due process, few federal courts have closed completely," the EOIR spokesperson said. 

The office's current operational status is largely in line with that of most federal courts, the spokesperson said, noting that the EOIR courts that do remain open are receiving filings, conducting detained hearings, and conducting work not involving the presence of the general public.

--Additional reporting by Suzanne Monyak. Editing by Peter Rozovsky.

Update: This article has been updated with comments from the EOIR.

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