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Law360 (April 21, 2020, 3:57 PM EDT) -- The National Association of Immigration Judges is pushing for the closure of immigration courts, saying their members are expected to oversee in-person hearings in cramped settings without personal protective equipment or job security assurances as the coronavirus pandemic rages on.
The NAIJ, the union for immigration judges, late Monday asked to intervene in ongoing litigation seeking a suspension of all in-person detention hearings, explaining that their judges are poorly equipped to keep themselves or immigration courthouses safe from the novel coronavirus.
The U.S. Department of Justice hasn't supplied all immigration courtrooms with hand sanitizer, wipes or masks for each individual who appears in-person, the union said in an amicus brief, noting that "judges have instead been advised to bring in their own personal protective gear and sanitizing supplies — an unrealistic demand given the general unavailability of those products and supplies."
Though individual judges can take steps to protect themselves, those measures must be weighed against the "cascade of social interactions" surrounding the in-person hearings, the NAIJ cautioned.
Judges and staff must first travel to the court, where they must wait in security lines, before entering courtrooms and workspaces too cramped to allow occupants to socially distance themselves from each other, the NAIJ said.
Also entering the court are immigration attorneys, detained immigrants and any case witnesses. The union added that detained immigrants are escorted to and from detention centers — which have been flagged as possible coronavirus hotbeds — by security officers.
Even if all these occupants could maintain the recommended six feet of space to prevent transmitting the coronavirus, the NAIJ explained they must still contend with a court system reliant on paper filings and documents.
"Legal briefs, court orders, paper evidence, and paper court files are passed from hand to hand every day," the NAIJ said.
According to the union, more than half of immigration courts nationwide have so far reported contact with confirmed coronavirus patients, or contact with individuals experiencing coronavirus symptoms.
Complicating the situation are the deadlines and quotas immigration judges must meet to remain in good standing with the DOJ's Executive Office for Immigration Review, which oversees the immigration courts, the brief noted.
To obtain satisfactory ratings on their professional reviews, immigration judges are required to complete 85% of detained hearings within 60 days of filing, and they must complete 90% of bond hearings on the first scheduled hearing, the union explained.
According to the NAIJ, one-quarter of immigration judges remain in probation and can be fired for not meeting these requirements.
But the union said EOIR Director James McHenry hasn't indicated whether the office would factor in the coronavirus health emergency when conducting judges' reviews.
"The combination of these factors creates a warped incentive structure in which immigration judges, when faced with a motion to continue a hearing based on COVID-19 exposure of a detainee, a lawyer, an interpreter, or a witness, must weigh protection of the public health against their own job security," the union said.
NAIJ President Ashley Tabaddor told Law360 Tuesday that the organization drafted the brief "to set the record straight" on what immigration judges have been experiencing after a D.C. federal judge appeared hesitant to pause all in-person detention hearings.
"It was quite clear that the judge had some questions about what was happening on the frontlines and that the information provided wasn't the complete information, or accurate information," Tabaddor said.
The National Immigration Project of the National Lawyers Guild, the American Immigration Lawyers Association, the Immigration Justice Campaign, and several detained immigrants filed suit March 30 in D.C. federal court to suspend all in-person detention hearings.
The organizations argue that the DOJ has failed to protect its immigration courts by refusing to implement a blanket policy allowing migrants to reschedule hearings or conduct them through remote access technology.
The lawsuit follows in the wake of mounting pressure on the DOJ to close its immigration courts. The department claims it has taken the appropriate steps to contain the spread of the coronavirus.
The department has also informed the D.C. federal court that an order suspending in-person proceedings would unlawfully impede on the executive branch's control of immigration courts and detention centers.
Representatives for the DOJ didn't immediately respond to requests for comment Tuesday.
The NAIJ is represented by Ashley C. Parrish and Joshua Mitchell of King & Spalding LLP.
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 Khorri Atkinson and Suzanne Monyak. Editing by Daniel King.
For a reprint of this article, please contact reprints@law360.com.
