By Khorri Atkinson

Law360, Washington (April 15, 2020, 9:55 PM EDT) -- A D.C. federal judge on Wednesday appeared unconvinced he has any authority to grant an order immediately suspending all in-person detention proceedings at immigration courts nationwide for the duration of the public health emergency caused by the coronavirus outbreak.

U.S. District Judge Carl J. Nichols expressed that view to attorneys representing more than 15,000 immigration lawyers and two other advocacy organizations during a nearly 2 1/2-hour teleconference hearing in a suit brought last month against the U.S. Department of Justice's Executive Office for Immigration Review, which oversees the U.S. immigration court system, and other federal immigration authorities. 

Judge Nichols, while sometimes appearing sympathetic toward the plaintiffs, suggested he doesn't believe, at least for now, that a temporary restraining order on an emergency basis is appropriate at this time. According to the judge, the remedy the plaintiffs are seeking would ignore the fact that immigration courts and detention facilities across the country have enacted measures to curb the spread of the virus.

"The relief you want me to enter is a one-size-fits-all form of relief for all 59 or so immigration courts and related facilities around the country, each of which is obviously in different geographical locations and in different situations with respect to state stay-at-home orders," Judge Nichols said, suggesting that a TRO ruling may only cause confusion. He added that some facilities are subject to specific orders by "a particular district court judge who has litigation related to that facility for some time now."

Cleary Gottlieb Steen & Hamilton LLP partner Matthew Slater, one of the attorneys for the plaintiffs, responded that not all detention centers are subject to the same conditions. But he insisted that a brief pause of in-person hearings is needed and for the government to articulate policies, procedures and criteria to "inform the individual courts of when and how they may proceed remotely." All immigration courts, he added, should be subject to the same policy. 

Still, the judge questioned whether the matter before him is ripe for a TRO, noting that four of the five plaintiffs don't have hearings until at least next month. But Slater urged the judge not to ignore media reports about immigration attorneys and judges contracting the virus after physically appearing in court.

 The National Immigration Project of the National Lawyers Guild, American Immigration Lawyers Association, Immigration Justice Campaign, and several detained immigrants lodged the March 30 suit. The challenge came after the Office for Immigration Review temporarily halted in-person hearings for nondetained individuals but has allowed proceedings for those still detained to continue. This move has left individual judges to field requests to postpone hearings or hold them remotely.

The suit faults the DOJ for failing to impose a blanket policy allowing migrants to reschedule hearings or conduct them through remote access technology, saying that without a uniform policy to protect its courts, individual immigration courts have imposed "wildly inconsistent responses." The groups also requested the release of all detained migrants who have no means to remotely access legal representation or the immigration court.

During oral arguments Wednesday, DOJ attorney Brian C. Ward defended the government's move to allow dozens of courts to remain open, saying that immigration authorities have taken appropriate steps to contain the spread of the virus.

The attorney rebuked what he called a sweeping request by the legal advocacy groups, arguing that all immigration courts have been given the option to hold hearings remotely and that an order to suspend in-person proceedings would unlawfully curtail the administration's flexibility to use its expertise to create policies and the ability to have full control of immigration courts and detention centers.

But Judge Nichols, repeatedly hammering why the government could not issue a uniform decision, openly expressed concerns about the possibility of immigration judges acting "unreasonable and not granting appropriate requests for continuances" or to hold remote hearings amid detainees' fears that they and their attorneys would be exposed to the virus. He also questioned whether such determinations are reviewable.

"And if an [immigration judge] forces someone to show up in an in-person hearing, there is no way to remedy the risk of the detained alien has been [exposed] to," the judge added.

Ward responded that there's no evidence in the record suggesting detainees are being denied remote hearings and the judge's hypothetical is irrelevant. Nonetheless, detainees could file an interlocutory appeal to the Board Immigration Appeals and a U.S. circuit court if the BIA's decision is unfavorable to the petitioner, Ward said. 

But Slater told the judge that the BIA doesn't typically entertain such interlocutory appeals because its practice manual suggests these requests are "highly disfavored." Moreover, disruptions of federal courts' operations due to the virus would make it even more difficult for detainees to file an interlocutory appeal outside the immigration court system, the attorney added.

Slater also pushed back against the government's argument that a nationwide suspension would undercut immigration authorities' responsibility to enforce immigration laws and regulations, and he said the DOJ's suggestion that some migrants may prefer in-person hearings is speculative.

"Our organizational plaintiffs are in the thick of things with the bar involved in the proceedings. No one has come forward to us and say: 'Hey, wait a second. We don't want you to pursue this for me because it's going to jeopardize our client,'" Slater argued. "[Some] immigration judges themselves have not suggested that granting this order of relief would upset the system."

Slater maintained that there must be a balance of the parties' rights and interests and that plaintiffs' aren't pushing for hearings "to come to a grinding halt." 

This case is one of a growing number of suits filed by migrants and legal groups as COVID-19 cases continue to grow across the country each day. Federal courts are facing mounting calls from immigration attorneys and others to release people held in federal detention centers and delay detention proceedings amid claims that the U.S. Immigration and Customs Enforcement is not prepared to handle a potential future outbreak at facilities nationwide, where immigrants are held in communal spaces.

The DOJ has already successfully sunk a request earlier this month from a group of legal services nonprofits, which had filed a separate suit in Oregon federal court last year over case quotas, to force a suspension of in-person immigration court hearings. An Oregan federal judge on April 2 denied that request, ruling that the Southern Poverty Law Center, the Las Americas Immigrant Advocacy Center and other nonprofits "failed to show that the facts warrant the sweeping relief that they seek."

Judge Nichols did not indicate when he will hand down an order. But attempting to bury the optics of his skepticism of both sides' argument Wednesday, Judge Nichols told attorneys at the end of the hearing that he's not disregarding the seriousness of the virus nor the steps taken by federal and state governments "to minimize the risks associated with further transmission of the disease."

"So nothing I said today, none of the questions I asked should be read ... with that view. This is a very serious matter," the judge said. "The question, of course, is whether and to what extent there's a role for this court to involve itself in the very specific issues identified."

The organizations are represented by Matthew Slater, Jennifer Kennedy Park and Polina Bensman of Cleary Gottlieb Steen & Hamilton LLP and Sirine Shebaya, Khaled Alrabe, Amber Qureshi and Cristina Velez of the National Immigration Project of the National Lawyers Guild.

The federal government is represented by Brian C. Ward, Alexander J. Halaska, William C. Bateman III and Erez Reuveni of the U.S. Department of Justice's Civil Division.

The case is National Immigration Project of the National Lawyers Guild v. Executive Office of Immigration Review et al., case number 1:20-cv-00852, in the U.S. District Court for the District of Columbia.

--Additional reporting by Alyssa Aquino and Suzanne Monyak. Editing by Jay Jackson Jr.

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