Immigration Judge Union Calls On DOJ To Suspend Hearings

By Suzanne Monyak
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Law360 (March 12, 2020, 7:55 PM EDT) -- The immigration judges' union on Thursday called on the U.S. Department of Justice office that oversees the immigration court system to postpone preliminary hearings for immigrants who aren't currently detained to mitigate the spread of the new coronavirus.

In a letter to James McHenry, director of the DOJ's Executive Office for Immigration Review, Ashley Tabaddor, president of the National Association of Immigration Judges, warned that these initial hearings can bring in dozens of immigrants and their attorneys into the courtroom at once, facilitating the spread of the virus, which causes the disease known as COVID-19.

"This is exactly the type of situation the White House, [the Centers for Disease Control and Prevention] and other public health authorities urge us to avoid, and we trust that you will agree that it is untenable and irresponsible in light of the current spread of COVID-19 infections across the country," Tabaddor wrote.

According to the union, an attorney who appeared at a large master calendar hearing on Tuesday is now experiencing flu-like symptoms and could have contracted the coronavirus infection, which has been labeled a global pandemic by the World Health Organization.

"We certainly hope that this incident will not involve a COVID-19 infection, but it stands to reason that even if it doesn't, it certainly will at some time in the upcoming weeks and months," Tabaddor wrote.

The NAIJ is not currently calling for merits hearings and preliminary hearings for those in detention to be suspended, as those trials do not require as many people to be congregated at once, Tabaddor said.

The union isn't alone in calling for information from the EOIR, which has yet to release formal guidance on immigration court procedures in light of the virus even as the Seattle immigration court closes.

The American Immigration Lawyers Association and more than 100 other legal services providers signed on to a Thursday letter expressing their "extreme concern at the lack of guidance or proactive initiatives" taken by the EOIR to protect the New York immigration courts, some of the busiest in the country.

Without guidance from the EOIR, immigrants experiencing flu-like symptoms may still show up to their hearings to avoid being deported in absentia, the organizations said.

They asked the EOIR to establish procedures for hearings to be rescheduled if immigrants or their attorneys are sick or have been exposed to the coronavirus and policies allowing telephonic appearances. They also called for "contingency plans" if schools are closed, preventing parents from appearing in court, and an improved notification system when a case is rescheduled.

Sens. Elizabeth Warren, D-Mass., and Ed Markey, D-Mass., also joined in on Wednesday to urge the EOIR to mandate that CDC posters, in both Spanish and English, be posted in immigration courts and asked what steps the office is taking to safeguard people in the courts.

The union's concerns come as federal courts close across the country out of fear of the virus. The U.S. Supreme Court closed to the public on Thursday, while federal courts in Massachusetts and Texas have postponed jury trials.

Federal and state courts in New York have imposed restrictions to prevent those who have traveled to certain countries or been exposed to the coronavirus from entering.

Immigration courthouses can become a "hotbed," Tabaddor told Law360 on Thursday. She also described "an increasing level of concern and frustration that we're all feeling in response to the complete lack of response by leadership."

In a statement to Law360, an EOIR spokesperson said that the Justice Department "continues to work closely" with the CDC and other government officials regarding the virus. The spokesperson also said that attorneys may file motions to continue or requests to postpone proceedings, if necessary.

"Although the operational situation may change as new information is received, immigration courts will continue to address cases, including any motions to continue, in accordance with the applicable law," the spokesperson said.

Tabaddor faulted the DOJ for recommending that the issue be addressed on a case-by-case basis, saying that this position "demonstrates the abject cluelessness of the department," particularly given that the immigration court case backlog has reached 1 million cases.

And while judges could attempt to issue standing orders to exclude certain less-essential people from court proceedings, that will only push more people into the waiting area of the immigration courthouse.

"It doesn't really address the issue; it just puts a Band-Aid over it," she said.

She added that the union has reached out to the Justice Department on this issue but has been "shut out of the process."

--Editing by Jack Karp.

For a reprint of this article, please contact reprints@law360.com.

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