Immigration Judge, Atty Get Sick As Courts Remain Open

By Suzanne Monyak
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Law360 (March 17, 2020, 8:19 PM EDT) -- An attorney who appeared in an Atlanta immigration court on Monday has tested positive for COVID-19, the disease caused by the new coronavirus, and a Denver immigration judge is home sick with symptoms of the disease, the head of the immigration judges' union said Tuesday.

Ashley Tabaddor, the president of the National Association of Immigration Judges, told reporters on a Tuesday call that the attorney in Atlanta had reported the diagnosis to the court that morning, one day after physically appearing in the courthouse.

The Denver immigration judge has not been formally diagnosed but was told by her doctor that she likely had the disease, which the Centers for Disease Control and Prevention said has so far infected more than 4,200 people in the U.S. The judge, who was in immigration court as recently as Friday, was told to stay home and self-quarantine the remainder of the week.

A Denver attorney with U.S. Immigration and Customs Enforcement's legal unit who was in the courtroom with that judge is now "frantic," said Fanny Behar-Ostrow, president of the union representing ICE trial attorneys. Behar-Ostrow told Law360 after the call that the attorney recalled the judge was "coughing thickly the entire time she was on the bench," and that she only learned of the judge's condition after noticing that she had been taken off the calendar for the week, and inquiring.

"She is expressing dismay and concern over the fact that she now has been exposed with the virus," said Behar-Ostrow, who received messages by text and email from the panicked lawyer, who apparently had to approach the bench while the judge was coughing to retrieve an order.

That Denver attorney isn't the only one panicking, according to Tabaddor, who has joined with the American Federation of Government Employees, or AFGE Local 511, and the American Immigration Lawyers Association to call on the U.S. Department of Justice to close the immigration courts to mitigate the spread of the virus.

"This is what's happening across the country," Tabaddor said. "At every court, everyone is in basically panic mode because the appropriate measures have not been taken to protect people from exposure."

As federal and state courts across the U.S. close their doors and limit access in light of the CDC's recommendations to avoid public gatherings, the DOJ's Executive Office for Immigration Review has kept the immigration courts open. This forces immigrants and their lawyers to choose between protecting their health and trying to avoid being deported in absentia, advocates say.

The immigration courts bring large groups of people together "by definition," Tabaddor said. Behar-Ostrow also noted that the design of the courts, from small courtrooms to crowded waiting areas and elevators, put people's health at risk.

"The immigration courts need to close. Period," Jeremy McKinney, second vice president of AILA, said on the call. "The status quo presents a grave danger to public health, not only to the litigants and EOIR employees, but also to the community at large."

EOIR has agreed to postpone preliminary scheduling hearings, which are typically held in groups, for immigrants who aren't in detention, and has closed the immigration court in Seattle, a city that has been hit particularly hard by the virus' outbreak.

The agency had initially agreed to suspend the preliminary hearings in just six major cities, but facing intense pressure from immigration judges, attorneys and other stakeholders, it announced on Sunday night that these hearings would be postponed across the U.S., though the courts would remain open.

But the NAIJ, AILA and AFGE Local 511 have said that's still not enough and called on the Justice Department to suspend all in-person hearings and rely on video-conferencing technology to hold bond and other hearings for those in immigration detention.

They also urged the DOJ to issue clear guidance, noting that individual immigration judges are deciding procedures for their own courtroom on a case-by-case basis. McKinney said that one immigration judge in Atlanta refuses requests to conduct hearings over video "routinely," including today for a hearing scheduled for Thursday, though he didn't name the judge.

The American Civil Liberties Union of Maryland accused Baltimore Immigration Judge David Crosland on Tuesday of disregarding public health experts' recommendations by denying attorneys' requests to postpone trials and hearings.

According to the advocacy group, which announced Tuesday that it had filed an administrative complaint against the judge, Judge Crosland ordered an immigrant deported who had failed to show up to his hearing over fears of contracting COVID-19.

"No one should have to choose between the threat of deportation or of a severe illness that could lead to death," Nick Taichi Steiner, a staff attorney for the ACLU of Maryland, said in a statement.

Advocates have also faulted EOIR for what they call a lack of transparency and communication. After announcing that preliminary hearings would continue on Friday, EOIR tweeted on Sunday night around 11 p.m. that they would all be postponed.

"Everything we've learned is basically through a Twitter account," Tabaddor said.

An EOIR spokesperson didn't immediately respond to requests for comment late Tuesday.

--Editing by Emily Kokoll.

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

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