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Chaos, Confusion Reign As Immigration Courts Stay Open

By Suzanne Monyak
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Law360 (March 27, 2020, 10:58 PM EDT) -- On March 19, the mother of a detained immigrant traveled by train from Long Island to New York City's Penn Station, and from there to the crowded waiting area of the Varick Street immigration court in Manhattan's Hudson Square neighborhood.

On that day, the U.S. had about 15,200 confirmed cases of COVID-19, the disease caused by the new coronavirus. But the immigration court had not yet responded to her son's request to hold his bond hearing by telephone despite multiple calls to the court. His mother wanted to deliver a letter confirming the request to the court's clerk in-person.

Days later, she was diagnosed with COVID-19.

"Undoubtedly, she came into contact with, and exposed, countless numbers of people, who in turn exposed countless others," the immigrant's attorney, George A. Terezakis, wrote in a March 23 letter to court officials.

At about 11 p.m. the day Terezakis sent that letter, the Justice Department's Executive Office for Immigration Review, which oversees immigration courts, posted on Twitter that the Varick Street court would be closed the next day "following notice of a person with a confirmed case of coronavirus in EOIR space." But after the one-day closure, the Manhattan immigration court reopened its doors.

And on Friday, as confirmed COVID-19 cases in the U.S. approached 100,000, the Varick Street court was still open for business, along with about 60 other immigration courts across the U.S., despite concerns from attorneys and judges alike that their health is at risk.

"Just as someone firing randomly into a crowd of Immigration Judges, court staff, attorneys, interpreters and detainees' family members will foreseeably and inevitably kill someone ... keeping the courts open ensures continued, needless infection, serious illness and death among those who work in the courts, their families, and those who they may come in contact with," Terezakis, who chairs the Association of Deportation Defense Attorneys, wrote in the letter.

The immigration judges union, the American Immigration Lawyers Association, and the union representing the U.S. Department of Homeland Security's attorneys have joined together to call for the immigration courts to close.

They have also called for more transparency from EOIR on its decisions to keep some courts open and close others. Many of the court closures and adjusted filing deadlines have been posted on Twitter late at night, after East Coast business hours, while attorneys trade rumors of coronavirus exposures at the now-shuttered courthouses.

Law360 interviewed nearly a dozen immigration attorneys, former judges and industry leaders and found they used terms like "chaotic," "irresponsible" and "criminally negligent" to describe EOIR's response to the coronavirus pandemic.
 
"Everybody's afraid, and it just creates this really stressful situation to work in where everybody wants to get out as soon as possible, and yet we have to do our jobs," said Graham Ojala-Barbour, a Minnesota-based immigration lawyer.

'Policies by Tweet'

While state and federal courts across the country have largely closed their doors and suspended jury trials, EOIR has opted for more of a piecemeal approach to closing and reopening the 69 immigration courthouses across the country.

The first to close was in Seattle on March 11, following a report of "second-hand exposure to coronavirus." But the length of the closure was unclear — for two days, the agency tweeted that the court would remain closed the next.

On March 13, EOIR announced that the Seattle court, which is in an area that had been hit particularly hard in the early days of the outbreak in the U.S., would be closed until April 10. Late that night, the agency tweeted that preliminary scheduling hearings for immigrants who aren't in detention for six other courts would be postponed.

The agency suspended all hearings for nondetainees several days later.

From there, announcements became more frequent: a midnight tweet closing courts in nine cities, including Atlanta, where a trial attorney had recently tested positive for COVID-19 after appearing in the city's Peachtree Street court. A 9:18 a.m. tweet announcing that Denver's immigration court, where a judge was then self-quarantined with a suspected case of coronavirus, would be closed that day.

"It's been absolutely chaos and complete lack of transparency as to any standards that they may or may not be using as to which courts are open, which courts are closed," Ashley Tabaddor, the head of the immigration judges union, told Law360 in an interview.

She also said that the agency has failed to properly communicate with individuals in the local courthouses.

EOIR tweeted Tuesday afternoon that the immigration court in Elizabeth, New Jersey, would be closed for the rest of the day "due to a report of the presence of an individual with a test-confirmed coronavirus diagnosis."

But the next day, the court was open, and according to Tabaddor, it had never actually closed at all despite EOIR's tweet.

EOIR sent attorneys into a short-lived tailspin later that day when it tweeted shortly after 6 p.m. that all filings that had been due in several courts during a weeklong closure, which had been set to last until at least April 10, would be due the following day. Following prompt backlash from attorneys on social media, the agency deleted that tweet soon after and set a filing deadline of March 30 for those courts.

Just shy of 9:30 p.m. the next night, EOIR tweeted again: The Newark, New Jersey, court, which had closed March 18, and the Seattle court were reopened.

"You're just doing these willy-nilly?" asked Alan Pollack, a New Jersey-based immigration attorney. "Like who makes this decision in the middle of the night?"

Laura Lynch, senior policy counsel at AILA, noted that the tweets don't always align with what is posted on EOIR's website, particularly for short-term closures.

"EOIR is creating policies by tweet in the darkness of night, undermining the legitimacy and credibility of the entire immigration court system," she said.

The late-night announcements have kept attorneys on their toes, with many preparing routine filings on time to the extent they can without access to their offices, just in case the court reopens suddenly.

"I never know what I'm going to see in my email when I open my email the next morning," said Erin Cobb, a Chicago-based immigration lawyer with Kriezelman Burton & Associates LLC.

Aaron Hall, a Colorado-based immigration attorney, said some lawyers will likely have to show up to court the next morning if they have a hearing scheduled after a daylong closure in case the court is open the next day.

"The lack of communication has caused chaos," he said.

As of March 27, just eight immigration courts across the U.S. are fully closed, although many more are open only for the limited purpose of accepting filings.

Hearings for immigrants in detention are continuing, although hearings for migrants waiting in Mexico for their court dates under the Trump administration's controversial program are not. But with few courts currently accepting electronic filings, at least some court staffers must be present to receive the mail and accept in-person filings, even in courts that allow immigration attorneys and the detained immigrants to appear by telephone.

An EOIR representative didn't respond to a list of questions Friday afternoon. But the agency said in a statement Thursday night that it "takes the safety, health, and well-being of its employees very seriously, and will continue responding to this rapidly evolving pandemic, while ensuring the continuation of its critical missions and updating the public regarding the status of its operations as decisions are made."

EOIR also noted that few immigration courts have closed entirely because cases involving detainees "implicate unique constitutional concerns and raise particular issues of public safety, personal liberty, and due process."

But Jeffrey Chase, a former immigration judge, said that reopening closed courts for filing purposes "makes no sense," noting that keeping the courts open, even in a limited capacity, forces clerical staff, who aren't paid as highly as attorneys and judges, to come in and risk exposing themselves and their families to the virus.

"For what? For somebody to file something that you could have let them file a month or two from now?" he said.

An Ethical Dilemma

The agency's refusal to shut down the courts entirely has made many attorneys confront a difficult ethical question: Does coming to court do more harm than good?

Cobb said that she wouldn't feel comfortable appearing at a client's merits hearing over the phone. "I have to put my clients' rights above my own," she said.

But for some attorneys, the ethics are murkier.

In some courts, including Boston, standing orders have been issued stating that attorneys who appear by telephone at hearings for detained immigrants have waived their rights to contest certain evidence brought forth by the federal government because they can't examine it. Chase called that a "major concession."

"Lawyers are just being put into these positions where they've got to expose themselves, maybe expose the family members of their clients, maybe for nothing. Or they stay home to protect themselves and their family and maybe prejudice their clients," he said. "It's not the kind of decisions people should be forced to make at a time like this."

For Ojala-Barbour, the chair of AILA's chapter for Minnesota and the Dakotas and a single father, the ethical considerations extend beyond his clients.

"I need to be able to take care of him, so I don't want to get sick," he said of his 7-year-old son, whose school is closed.

He said he also doesn't feel comfortable asking his older parents to come help, particularly since he had been in an immigration courthouse earlier this month for a scheduling hearing, known as a master calendar hearing, where dozens of immigrants and their attorneys are crowded together.

"I was in a nondetained master and I was thinking, this is a disaster," he recounted. "I'm glad they stopped those. That's something good that they did."

His colleague, Mirella Ceja-Orozco, has been picking up the slack for the two-attorney firm, dropping off filings in-person when necessary and attending hearings for detained clients.

"If I didn't have her help, then my ship would be sinking right now," Ojala-Barbour said. "I wouldn't even be able to do the basic functions of the business."

Ceja-Orozco, who successfully won bond for a client in immigration court last week, said she was most afraid of spreading the virus to others, including members of her household and her clients, who could then spread the virus to other immigrants detained with them.

"If I get them sick, I would feel so guilty," she said.

Some attorneys have taken a stand and refused to go to court.

Terezakis, whose client's mother was diagnosed with COVID-19 after visiting a Manhattan immigration court, found himself self-quarantined when his daughter returned home from her study abroad program in Madrid. The Trump administration has required all Americans returning from China, Iran and much of Europe to self-quarantine for 14 days in the U.S., among other travel restrictions.

Reluctant to put court staff and his client, who was detained, at risk, he asked an immigration judge at the Batavia, New York, court, about 40 miles east of Buffalo, to postpone an upcoming hearing, but said he was denied twice. He eventually convinced the judge to postpone the hearing at the last minute.

"We're told New York City is one of the focal points of the epidemic, and I'm basically being told to go through any of the New York-area airports and risk further exposure? It makes no sense," he said.

Political Motivations?

Some attorneys have questioned if EOIR's refusal to fully close the courts is politically motivated, perhaps even part of the White House's desire to keep deportation numbers up during an election year.

"There's just no other reason, other than, 'It's our political goal to continue to deport people and that outweighs the risk that is pretty obvious to everyone involved,'" said Matthew Hoppock, a Kansas City-based immigration attorney who practices in immigration courts across the country.

Chase, the former immigration judge, recalled a more "sensitive, caring response" from EOIR when he was on the bench in the wake of the Sept. 11, 2001, terror attacks.

"Three years into this administration, it's a bunch of people who hear, 'Jump,' and say, 'How high?'" he said.

Many attorneys called on EOIR to cancel all hearings and to release any immigrants who can be released, including those who are not a danger to the public and have strong ties to their communities.

And the agency's response may be changing. Two weeks after the World Health Organization declared the virus a pandemic, EOIR has added attorneys to an email listserv that sent an immigration court closure announcement Thursday night.

But as reports of staffers and immigrants at detention centers falling ill with the virus bubble up, including at Elizabeth, New Jersey, and Aurora, Colorado, a listserv may not be enough.

In a Friday letter, the committee chairs of AILA's Colorado chapter demanded that EOIR close the Aurora court for at least four weeks.

"They're just making it up as they go," said Tabaddor of EOIR's response to the crisis. "You could not handle this situation any worse if you tried."

--Editing by Jill Coffey and Breda Lund.

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

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