In-Person Immigration Hearings To Proceed During Pandemic

By Sarah Martinson
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Law360 (April 28, 2020, 12:45 PM EDT) -- A D.C. federal judge on Tuesday rejected advocates' bid to halt in-person immigration court hearings during the coronavirus pandemic, saying they have failed to show that the court has the authority to stop the proceedings.

In this April 22 photo, a business is shown closed due to the coronavirus. A D.C. federal judge on Tuesday rejected a bid to halt in-person immigration court hearings during the pandemic. (AP)

U.S. District Judge Carl J. Nichols said the American Immigration Lawyers Association, along with two organizations and five detainees, failed to establish that under administrative law the federal court can overrule the U.S. Department of Justice's decision to keep immigration courts open amid the novel virus outbreak.

The organizations and detainees also haven't shown how permitting in-person hearings would cause them an "imminent injury" that would warrant an injunction, when none of the detainees have an in-person hearing scheduled in the next month, Judge Nichols said.

"Plaintiffs' claims ultimately are not a challenge to defendants' failure to follow some clear statutory obligation, but instead a challenge to defendants having exercised their discretion in implementing policies with which plaintiffs disagree," he said.

Judge Nichols noted that the DOJ's Executive Office of Immigration Review has the authority to decide how the U.S. immigration court system is managed and has issued guidance to immigration courts for how to safely conduct proceedings during the virus outbreak.

The EOIR has advised immigration court judges to resolve cases through briefs and use telephone or video conferencing for hearings, Judge Nichols said. In addition, the EOIR has postponed all hearings for immigrants who are waiting in Mexico while seeking entry into the U.S. and nondetainees, he said.

Judge Nichols also said that the organizations and detainees haven't sufficiently shown that U.S. Immigration and Customs Enforcement is interfering with detainees' ability to consult with their counsel during the pandemic.

The judge said that three of the detainees do not have counsel and the two detainees who do have counsel have offered little evidence to show that ICE prevented them from communicating with their attorneys. In fact, one detainee has been released, invalidating all of his claims in this case, Judge Nichols said.

Even if ICE was interfering with the detainees' ability to communicate with their attorneys, the court does not have the authority to review immigration proceedings under the Immigration and Nationality Act, he said.

The organizations and detainees filed the instant suit on March 30, seeking the immediate suspension of in-person detention hearings or the release of all detained migrants who have no means to remotely access legal representation or the immigration court.

In response, the DOJ argued that immigration courts have "responded appropriately" to the coronavirus pandemic and that the federal court doesn't have the authority to grant the groups' "extraordinary" requests.

The organizations' attorney Sirine Shebaya told Law360 in a statement that Judge Nichols' decision "will allow harmful practices to continue that expose detained immigrants and their attorneys to serious risk of harm from COVID-19 exposure."

"The record reflects voluminous instances of such harm, which is ongoing so long as EOIR and ICE do not issue a uniform policy to address this problem," Shebaya said.

The DOJ did not respond to a request for comment.

The organizations and detainees are represented by Matthew D. Slater, Elsbeth Bennett, Jennifer Kennedy Park and Lina 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 Joseph H. Hunt, Scott G. Stewart, William C. Peachey, Lauren C. Bingham, Katherine J. Shinners, Brian C. Ward, Alexander J. Halaska, William C. Bateman III, Courtney E. Moran and Erez Reuveni of the DOJ'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.

Update: This story has been updated with more details from the ruling and with comments from Sirine Shebaya.

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

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Case Information

Case Title

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD et al v. EXECUTIVE OFFICE OF IMMIGRATION REVIEW et al


Case Number

1:20-cv-00852

Court

District Of Columbia

Nature of Suit

Civil Rights: Other

Judge

Carl J. Nichols

Date Filed

March 30, 2020

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