NJ Immigration Attys' Virus-Risk Suit Gets Tossed, For Now

By Jeannie O'Sullivan
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Law360 (October 16, 2020, 8:22 PM EDT) -- A New Jersey federal judge on Friday ruled that, for now, a group of immigration attorneys cannot halt in-person hearings due to COVID-19 fears, reasoning that a remote proceeding option has been launched since the lawsuit was filed in July. 

U.S. District Judge John Michael Vazquez denied the preliminary injunction request by the American Immigration Lawyers Association's Garden State chapter, but did so without prejudice in the event things change. The ruling comes eight days after Judge Vazquez pointed out during a hearing that attorneys can now request a videoconferencing option in which all the parties can appear separately.

"In sum, the Newark Immigration Court appears committed to providing consenting attorneys and respondents with a remote videoconferencing option for the duration of the COVID-19 pandemic," Judge Vazquez wrote in his decision Friday.

"Given this new technology, plaintiffs fail to establish immediate and irreparable harm, and are unlikely to establish deliberate indifference, which is necessary to demonstrate a substantial likelihood of success on the merits for their Fifth Amendment claim," the decision continued.

However, the association can bring the matter before the judge again in the future if "circumstances arise that necessitate relief from this court," the decision said.

The complaint targeted the Executive Office of Immigration Review's July 8 decision to resume in-person hearings for nondetained immigrants. The 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 hearing system in place at the time the complaint was filed utilized videoconferencing, but the parties would have to come to the courthouse to utilize it. The association claimed that forced members to be in the same room with their clients.

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 hearings so they don't have to come to the courthouse.

However, the association objected to the fact that parties have to file a request to use that process, reasoning that the request is subject to the discretion of an immigration judge. They sought a policy spelling out that they wouldn't have to appear in person.

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.

In joint statement emailed to Law360, association attorneys Lawrence S. Lustberg and Michael R. Noveck of Gibbons PC said: 

"As plaintiffs have alleged all along, remote video proceedings are a feasible and safe method of holding immigration court proceedings during this unprecedented pandemic. When this litigation began, EOIR had claimed that it could not hold remote video proceedings for the Newark Immigration Court. But now, as a result of this case, EOIR has now implemented such remote video proceedings, with attorneys and litigants able to participate from the safety of their own homes."

The statement continued, "And as Judge Vazquez made clear, if EOIR does not follow through on its promise to continue these remote proceedings, plaintiffs can return to the court, which we will do if it is necessary.  We are satisfied with and grateful for the court's opinion, which makes the practice of immigration law in New Jersey safer for attorneys, clients and court personnel alike."

A representative for the U.S. attorney for the District of New Jersey declined to comment.  

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 Abbie Sarfo.

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

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Case Information

Case Title

AMERICAN IMMIGRATION LAWYERS ASSOCIATION, NEW JERSEY CHAPTER et al v. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW et al


Case Number

2:20-cv-09748

Court

New Jersey

Nature of Suit

Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision

Judge

John Michael Vazquez

Date Filed

July 31, 2020

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