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Law360 (August 3, 2020, 10:21 PM EDT) -- New Jersey immigration lawyers have filed suit seeking a halt to in-person, nondetention hearings in the Newark Immigration Court, alleging that the U.S. Department of Justice is unnecessarily forcing them to go into court amid the coronavirus pandemic.
In a Friday lawsuit, the Garden State chapter of the American Immigration Attorneys Association is pressing a New Jersey federal judge to bar the Justice Department from forcing immigration attorneys to show up to the Newark Immigration Court, a mandate the organization claims is needlessly risky with the availability of videoconferencing technology.
Raymond D'Uva, a private immigration attorney and former AILA member, and an unnamed clerk for an immigration prosecutor died from the coronavirus weeks after they both appeared in the immigration court for a March 11 hearing, the immigration attorneys allege.
"The Newark Immigration Court is no stranger to the devastating effects of COVID-19," the organization said in its Friday suit. "Yet … that court was recently reopened for immigration hearings regarding cases for persons who are not held in detention."
The Justice Department's Executive Office of Immigration Review — which oversees the nation's immigration courts — suspended all nondetention hearings for the Newark court through July 10. When the agency restarted those hearings, it did so without "basic information" on how to safely social distance in the building, the attorneys say, claiming that certain staff don't wear masks in the courthouse and crowd into elevators.
According to the complaint, the agency has "arbitrarily refused" to postpone scheduled hearings when private immigration attorneys request them. And an immigration judge has even threatened disciplinary action against two lawyers if they failed to appear for an in-person hearing.
"Most significantly, EOIR has not provided any opportunity for judges, attorneys, litigants, witnesses, and others to appear at Newark Immigration Court hearings for non-detained respondents via videoconferencing," the attorneys said.
The omission flies in the face of other courts' successes with video-conference hearings, including that of the Newark Immigration Court, which allows detention hearings to be conducted virtually, the attorneys say.
The court currently allows parties to conduct nondetention hearings over the telephone, but attorneys call that option "plainly inferior."
Attorneys who take the telephone option are unable to see how witnesses react during examination or cross-examination. They're also deprived of the opportunity to see how a judge fully responds to evidence, the lawyers say.
"It is at best questionable, then, whether an attorney can fulfill his or her responsibility to provide complete, diligent representation to a client through a telephonic merits hearing," the attorneys said.
New Jersey immigration attorney Lloyd Bennett told Law360 on Monday that he was preparing to go to the Newark Immigration Court on Tuesday morning for an in-person scheduling hearing.
He estimated that the court will schedule about 20 immigration cases just in the morning.
"And whoever doesn't show up gets an order of deportation and that's due process. It's crazy, it's just crazy!" he said.
The attorneys are bringing their suit under the Administration Procedure Act, alleging that the EOIR failed to explain why it hasn't allowed Newark nondetention hearings to be conducted over videoconference. They're also alleging due process claims, saying the agency has needlessly endangered their health.
The EOIR did not respond to Monday requests for comment.
AILA is represented by Lawrence S. Lustberg and Michael R. Noveck of Gibbons PC.
Counsel for the government was not immediately available Monday.
The case is American Immigration Lawyers Association et al. v. Executive Office for Immigration Review, case number 2:20-cv-09748, in the U.S. District Court for the District of New Jersey.
--Editing by Abbie Sarfo.
For a reprint of this article, please contact reprints@law360.com.
