NY Immigration Attorneys Demand Coronavirus Safeguards

By Emma Whitford
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Law360 (March 26, 2020, 10:17 AM EDT) -- In a Wednesday evening letter to federal agencies, 208 New York immigration lawyers, firms and legal services agencies demanded swift action to help them safely and adequately represent their clients during and after the COVID-19 pandemic.

"During these extraordinary times, it has become difficult to the point of being nearly impossible for individuals and their legal representatives to prepare cases and meet deadlines," attorneys wrote.

The letter, shared with Law360, calls for stripping court functions to the bare essentials, as well as ample time for attorneys to safely prepare cases and applications for relief. It is addressed to the U.S. Attorney General William P. Barr and the directors of the Executive Office for Immigration Review, U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, and U.S. Immigration and Customs Enforcement

Even as federal and state courts across the country have closed their doors, the Executive Office for Immigration Review has chosen a piecemeal approach, despite recent confirmed cases of COVID-19 in New York City and Elizabeth, New Jersey. Currently, just five of 69 immigration courts nationwide are fully closed.

All nondetained cases have been deferred to April 10 in direct response to COVID-19.

But immigration attorneys would like to see all nondetained courts closed for the duration of the crisis, and "skeletal staff" to handle emergencies like detained cases and bond hearings. The latter should move to phone or video conferences, with electronic filing so cases can proceed if attorneys feel ready. 

"Basically, let the respondent determine if they want to go forward," Camille Mackler, director of immigration legal policy at the New York Immigration Coalition, told Law360 Wednesday.

"We're going to be asking for contact mechanisms so emergency cases can be heard, because we don't want to be completely cut off from courts," she added.

Attorneys and clients are stuck as long as it's not safe for them to meet in person with their clients, according to Wednesday's letter.

"Remote client meetings are often not an option because clients lack access to technology," the attorneys wrote. "Communication with clients, especially those who need interpreters, becomes increasingly complicated over telephone and televideo."

It is also difficult to collect supporting documents, they noted, when so few clients have access to scanners and printers at home. Immigration attorneys often need to collect documents from hospitals and law enforcement, which are both currently overburdened battling COVID-19.

With this in mind, immigration courts should extend all nonemergency filing deadlines before the Board of Immigration Appeals to at least six months after the courts reopen, attorneys said. Motions to reconsider a case should be due no sooner than a year after the courts reopen. 

This week, the EOIR gave attorneys at six immigration courts in New York, Atlanta, Houston, Los Angeles, Memphis, and Sacramento less than a week to submit filings due during a one-week court closure.

The New York attorneys' letter also demands that USCIS instate an "extraordinary circumstances" exception to the one-year filing deadline for asylum cases due between March 1 and at least six months after the courts reopen.

Immigrant clients with work authorizations and Deferred Action for Childhood Arrivals status should get automatic three-month extensions of their protected status, renewable throughout the crisis.

USCIS announced March 17 that it was canceling face-to-face appointments and events, but did not waive deadlines.

"USCIS will assess various options in coordination with DHS as the situation evolves," a spokesperson told Law360 Thursday. "In the meantime, USCIS will continue to provide special consideration or expedited processing for those who may need it on a case-by-case basis."

ICE should stop all interior enforcement immediately and release clients from custody, the letter states. "Absent a meaningful assurance that enforcement will in fact be suspended, immigrant community members will fear seeking medical and other help," attorneys wrote.

ICE said in a March 18 memo that it will "focus enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds."

Today's letter is just the latest of a flurry of demands from immigration attorneys across the country.

On March 15, the American Immigration Lawyers Association published a rare joint statement with the American Federation of Government Employees Local 511, which represents ICE attorneys, and the National Association of Immigration Judges calling on all nonemergency immigration hearings to be suspended for at least two to four weeks.

AILA has sent four letters since, and has a running database on its website of nongovernmental organization sign-on letters, as well as letters from AILA chapters across the country.

Laura Lynch, senior policy counsel for AILA, told Law360 on Wednesday that immigration courts' unique location within the Department of Justice makes it "subject to politicization of various administrations."

"ICE already has the parole authority to release individuals from detention on their own," Lynch added. "They don't need to burden the courts. So in our letter we urged ICE to utilize the authority, particularly for those individuals over the age of 60."

On March 23 and 24, EOIR announced via Twitter one-day closures of the Elizabeth Immigration Court in New Jersey and the Varick Immigration Court in Manhattan, which handle detained cases. In both instances, EOIR cited confirmed COVID-19 cases.

The courts reopened the next day. 

This week ICE confirmed the first COVID-19 case inside a detention facility, the Elizabeth Detention Center in New Jersey.

Wednesday's letter is an effort by the Immigrant Advocates Response Collaborative, a group of attorneys who organized at John F. Kennedy International Airport in the immediate aftermath of President Donald Trump's 2017 travel ban against majority-Muslim countries.

"It's not just the lawyers and the clients [the courts] are putting at risk, it's literally everyone," Mackler, a founding member of the collaborative, said Wednesday. "That's how community spread works. The virus doesn't stop and figure out who is a U.S. citizen and who's not."

The EOIR did not immediately respond to requests for comment. ICE shared a link to its COVID-19 policy page. 

--Additional reporting by Suzanne Monyak. Editing by Katherine Rautenberg.

Update: This story has been updated with comment from USCIS and ICE. 

Correction: An earlier version of the story misnamed the group of attorneys who spearheaded this letter. 

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

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