6 Immigration Courts Reopened For Filings Amid Pandemic

By Suzanne Monyak
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Law360 (March 25, 2020, 3:54 PM EDT) -- The U.S. Department of Justice has partially reopened six immigration courts in New York and other major cities after previously closing them in response to the spread of the new coronavirus, giving attorneys less than a week to submit any filings due during the closure.

The DOJ’s Executive Office for Immigration Review, which oversees the U.S. immigration court system, said on Twitter on Tuesday night that effective Wednesday, immigration courts in Atlanta, Houston, Los Angeles, Memphis, New York City and Sacramento would be reopened for the limited purpose of accepting filings.

EOIR initially tweeted shortly after 6 p.m. that all filings that had been due during the weeklong closure, which had been set to last until at least April 10, would be due the following day, but the agency deleted that tweet soon after and set a filing deadline of March 30 for those courts.

Ashley Tabaddor, president of the immigration judges' union, said that immigration judges were not all notified of the reopenings ahead of time by the agency. It is “as if there is no rhyme or reason to how things are done," she said. “They’re just making it up as they go."

The revised tweet, posted at 7:51 p.m., also said that documents do not need to be filed in-person. But partially reopening courts will require court staffers to come to work and perhaps even take public transportation, which could expose them and their families to the virus, said Laura Lynch, senior policy counsel for the American Immigration Lawyers Association.

“I can’t read the tea leaves into why EOIR made this decision,” Lynch told Law360 on Wednesday. “But they’re completely failing in their obligation to provide a safe environment.”

Lynch also said it will be difficult for attorneys to file a week's worth of filings by March 30. Those who don’t want to come to the court in person or who live in cities that have issued shelter-in-place orders would have to prepare filings even earlier to ensure they arrive in time by mail.

“I think that this is absolutely added pressure for attorneys at a time where there is such anxiety in facing this global pandemic day-to-day, both professionally and personally,” she said.

Lily Axelrod, a Memphis, Tennessee-based immigration attorney at Siskind Susser PC, told Law360 that Tuesday night’s tweets had prompted “confusion and outrage” from attorneys who thought they had until after April 10 at the earliest before those filings would be due.

The tweets prompted particular panic in Memphis, where a shelter-in-place order was set to take effect less than an hour after EOIR’s first tweet announcing a next-day deadline.

“They said, 'Surprise — your court is opening tomorrow and all filings are due now.' We assumed we had two weeks,” she said.

Even a March 30 deadline could be difficult for attorneys like herself, who have had to take on child care duties on top of the challenges of practicing law remotely, Axelrod added.

With the partial reopenings, just five of the 69 immigration courts nationwide are fully closed, including Louisville, Kentucky’s immigration court, which has been closed since August for reasons unrelated to the virus. The other four fully closed courts are in Charlotte, Newark, New York's Federal Plaza and Seattle.

All immigration court hearings for immigrants not in detention remain postponed. Immigration court hearings for migrants waiting in Mexico under the Trump administration Migrant Protection Protocols have also been suspended.

Meanwhile, immigration judges and attorneys have continued to ramp up calls to close the immigration courts altogether, warning that keeping the courts open puts court staff and immigrants at risk and flies in the face of the Centers for Disease Control and Prevention’s recommendations to stay home.

Federal and state courts across the U.S. have closed their doors in response to the coronavirus pandemic. Yet EOIR has chosen instead to close its immigration courts in a more piecemeal fashion, even as confirmed and suspected cases of COVID-19, the disease caused by the coronavirus, were reported in immigration courts in Atlanta, Denver, New York City and Elizabeth, New Jersey.

After those reports, EOIR announced that the Varick Street court in Manhattan and the Elizabeth court, which handles detained cases, would be closed on Tuesday but then both courts were marked open a day later.

Lynch also faulted EOIR for consistently posting immigration court closures and other updates on Twitter after East Coast business hours. Attorneys have started creating Twitter accounts just to follow the agency and keep abreast of these changes, Lynch said.

After the agency initially tweeted that a week’s worth of filings would be due the following day, a deadline Lynch said was “absolutely not feasible,” Lynch received more than a dozen calls, texts and emails from worried attorneys. About an hour-and-a-half later, the deadline was changed to March 30 with no explanation.

“It really demonstrates that the immigration court, it’s not like other courts,” she said. “It is being politicized, and they’re just creating policies very easily via tweet. But that’s not a real court, that’s not how real courts do justice.”

A spokesperson for EOIR didn’t respond to a request for comment Wednesday.

--Editing by Gemma Horowitz.

Update: This story has been updated with a comment from the president of the immigration judges' union. 

Correction: An earlier version of this story misstated when Memphis' shelter-in-place order took place. The error has been corrected. 

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

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