Immigration Attys' Virus Risk Suit May Be Moot, Judge Says

By Jeannie O'Sullivan
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Law360 (October 8, 2020, 8:39 PM EDT) -- A New Jersey federal court case over the social distancing limitations to video immigration hearings during the COVID-19 pandemic may be moot now that lawyers have the option to appear via video separately from their clients, a judge said Thursday.

Appearing frustrated at times during a conference, U.S. District Judge John Michael Vazquez was "puzzled" as to why the claims by the Garden State chapter of the American Immigration Lawyers Association should proceed given that the group's members can now participate in hearings from a different location than their clients.

The American Immigration Lawyers Association's July complaint alleges that the requirement that attorneys appear alongside their clients for video conferences in Newark Immigration Court puts parties at risk for virus transmission. Judge Vazquez refused last month to grant the group's preliminary injunction seeking to halt the requirement, saying he needed more information. The judge indicated Thursday, however, that he's "grateful" that the court has since expanded the social distancing possibilities for the hearings.

"You guys have succeeded with everything you've asked for in your moving papers," Judge Vazquez said, noting at one point that he planned to issue an opinion on the mootness issue.

The court in late September began using Cisco's Webex remote conferencing software, which enables parties and attorneys to participate in remote hearings from individual locations, according to court filings. Attorneys now have the ability to forward their clients an internet link to access the hearing so they don't have to come to the courthouse, court filings said

The court's prior video-conferencing system required parties to go to the courthouse in order to use it, court filings said.

The implementation of the new software prompted the Executive Office of Immigration Review, the defendant in the case, to ask the court to toss the case due to mootness.

But the American Immigration Lawyers Association chapter wants a policy spelling out that lawyers don't have to appear alongside their clients during the pandemic. The group's attorney Michael R. Noveck of Gibbons PC pointed out that lawyers have to file a motion to request the option to appear separately from their clients, and that the request is subject to approval.

"So, there's still immigration judge involved in this case, your honor, and there's still EOIR discretion involved in this case," Noveck told the court Thursday.

Judge Vazquez said he can't take away all of the immigration court's discretion.

The jurist also appeared skeptical that the American Immigration Lawyers Association's argument was bolstered by the fact that member John Perez was diagnosed with the coronavirus after he appeared in the same room with his clients.

After being pressed by the judge, Noveck acknowledged that it was unclear if the lawyer's clients, a couple, had been tested or had received a positive diagnosis. Judge Vazquez shot back that the American Immigration Lawyers Association's argument would be unsustainable if Perez hadn't contracted the coronavirus from the clients and said the lack of clarity on the matter was "concerning."

"You'd better do your due diligence before you make those arguments," Judge Vazquez told Noveck, adding that he wasn't interested in the attorney's philosophical argument on how Perez may have gotten the virus.

Noveck said he wasn't sure it could ever be determined "which way the causality went," but that the situation highlights the risks posed by proceedings in which attorneys and clients are required to appear in the same room during the pandemic.

In court filings, the EOIR disputes that the requirement exists.

The complaint targets the EOIR's July 8 decision to resume in-person hearings for non-detained immigrants. American Immigration Lawyers Association sought to reverse the EOIR's mandate after an attorney and law clerk who attended March hearings later died of the coronavirus.

The group said forcing immigration attorneys to show up to court is needlessly risky and claimed that when the EOIR restarted hearings in the Newark court, it did so without basic information on how to safely social distance in the building.

The immigration lawyers group claimed attorneys have been arbitrarily denied requests to postpone scheduled hearings, and that an immigration judge has even threatened disciplinary action against two lawyers if they failed to appear for an in-person hearing.

The government has countered that halting the in-person proceedings would bring the Newark Immigration Court's caseload, which currently tops 67,500, to a standstill.

Judge Vazquez in September denied the immigration lawyers' bid to halt the in-person requirement while the case proceeded, saying he needed more information from the government about the policy.

The American Immigration Lawyers Association is represented by Lawrence S. Lustberg and Michael R. Noveck of Gibbons PC.

The government is represented by Ben Kuruvilla of the U.S. Attorney's Office 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 JoVona Taylor.

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

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