By Jennifer Doherty

Law360 (August 26, 2020, 4:44 PM EDT) -- The federal government pushed back Tuesday on a bid by a group of New Jersey lawyers to stop in-person immigration hearings while the COVID-19 pandemic continues, telling a federal court that the request would bring the system to a standstill.

The Executive Office of Immigration Review opposed a motion by a trio of attorneys from the Garden State chapter of the American Immigration Lawyers Association seeking a preliminary injunction on in-person proceedings at the Newark Immigration Court. Not only had the attorneys lodged an unfeasible request in the wrong jurisdiction, the EOIR said, but their allegations regarding courthouse operations were "simply not true" and the attorneys disregarded the alternatives already available.

"Even before the pandemic, EOIR offered videoconferencing for non-detained hearings through EOIR's video teleconferencing ("VTC") proprietary software," the agency said, pointing to technology accessible within the Newark Immigration Court that allows attorneys to join in proceedings remotely from an empty courtroom.

Along with VTC, the agency said immigration attorneys could appear by telephone "by simply making a motion to do so."

Off-the-shelf videoconference programs such as Zoom and Skype were not viable for immigration courts, according to the agency, because they lacked VTC's transcription capabilities and security features.

Michael Noveck of Gibbons Law, counsel for the New Jersey lawyers, told Law360 that the agency's stance did not line up with other courts' approach.

"Their purported concerns over the lack of transcription software and over security seem to us to be invalid, given the fact that other courts simply do not share, or easily overcome, these concerns. In any event, we are confident that, as alleged in plaintiffs' complaint, this failure violates the Administrative Procedure Act and due process," Noveck said in a statement.

Laura Lynch, senior policy counsel at AILA National, voiced a similar frustration with EOIR's response to her colleagues' push to avoid in-person hearings.

"It's kind of emblematic of the immigration courts overall. They're one of the last remaining federal courts in the nation without e-filing. All of their technology is decades behind," she said.

Lynch also added that the New Jersey contingent had the support of AILA National, with many members shaken by the death of former AILA member Raymond D'Uva. AILA-NJ said D'Uva died from COVID-19, along with a clerk for a prosecutor, weeks after they both appeared in the Newark immigration court for a March 11 hearing.

"We are definitely supportive of the AILA New Jersey chapter's efforts to advocate on behalf of the health and safety of their chapter. We are hopeful that they are able to obtain a positive outcome in this case," Lynch told Law360.

In its 50-page brief, the EOIR said that beyond the technology already available for the Newark Immigration Court, statutes including the Immigration and Nationality Act barred AILA-NJ's claims from district court.

Granting an injunction was not in the public interest, the agency said, and would have a "disruptive" impact on the immigration system long after the pandemic had ended.

"The precedent would serve to allow organizations and individuals to rewrite the immigration statutes and change federal policy and procedure," the EOIR said.

AILA-NJ's response is due Tuesday.

Counsel for the Executive Office of Immigration Review did not respond to requests for comment Wednesday.

AILA is represented by Lawrence S. Lustberg and Michael R. Noveck of Gibbons PC.

The government is represented by Ben Kuruvilla of the Office of the U.S. Attorney for the District of New Jersey.

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 Steven Edelstone.

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