DOJ Unit Dinged For Immigration Courts' Virus Response

By Sarah Betancourt
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Law360 (April 22, 2021, 9:02 PM EDT) -- The federal agency that oversees immigration courts bungled its communication and decision-making response to the COVID-19 pandemic, exposing staff and parties to immigration proceedings to potential health risks, according to a damning watchdog report released Thursday.

The U.S. Department of Justice's Office of the Inspector General said that while the Executive Office of Immigration Review suspended certain dockets to reduce the number of individuals in courts, it continued to hear cases for detained immigrants and kept filing deadlines in place for many cases.

In addition, the agency offloaded the decision to waive in-person appearances to individual judges, resulting in these decisions being inconsistent and poorly communicated to attorneys.

"This resulted in a landscape of inconsistent decisions and practices across immigration courts nationally and at times uncertainty for respondents and other individuals regarding the status of hearings," the OIG said. "Parties to immigration proceedings reported to the OIG that immigration judges' decisions about requests for continuances or telephonic appearances varied and were often issued close to the time of the hearing."

EOIR also failed to properly protect staff from COVID-19 by providing conflicting information about the need for social distancing and mask wearing and by failing to report active cases to the staff, according to the report. EOIR was not transparent about court closures or telework options, and judges reported that they and court staff had to work "shoulder-to-shoulder" during hearings, the OIG said.

The watchdog found that EOIR had limited electronic filing capability and relied heavily on in-person, paper filings. Electronic filing was provided as an option in 14 of 69 immigration courts in March 2020. Over the pandemic, that grew by 33 additional immigration courts, with videoconferencing available for some hearings.

"However, we determined that EOIR did not apply these changes evenly and was also hampered in these efforts by a lack of supplies and equipment," the report said.

Sophia Genovese, a pro bono supervising attorney at Catholic Charities Community Services, told Law360 that the courts' reliance on a paper system has led to her having to resend bond requests and court filings.

"Many things have been lost. I am having to resend motions or filings to the court because the clerks cannot see if it was received," Genovese said. "It seems like only when you raise hell and demand the court does their job, they'll do it. But again, what does that mean for folks with quiet attorneys or no attorneys at all?"

Last year, immigration attorneys with the American Immigration Lawyers Association and the National Immigration Project of the National Lawyers Guild sued EOIR, asking a D.C. federal court to stop in-person hearings. The suit alleged that EOIR had not implemented a blanket policy allowing migrants to reschedule hearings or conduct them through remote-access technology. The case was later voluntarily dismissed when the judge denied a temporary restraining order, but attorneys within the organizations said they continued to experience problems with filings, court scheduling and deadlines.

"This report highlights the significant deficiencies in EOIR's response to the COVID-19 pandemic, which resulted in outbreaks at detention centers and severe cases among attorneys, putting so many lives at risk," said Sirine Shebaya, executive director of the National Immigration Project.

"Moreover, EOIR's failure to respond competently further eroded due process as people and their attorneys faced harsh and unrealistic court deadlines in the midst of a global pandemic," she said.

The report said that communication with attorneys was poor at the beginning of the pandemic, and that notifications about possible COVID-19 exposure didn't begin until November 2020.

Eliana Nader, the chapter chair for the New England Chapter of AILA who was interviewed by OIG for the report, said that health threats at immigration courts persist since courts close with "inadequate notice," the possibility of active COVID-19 cases isn't communicated transparently, and attorneys can't access schedules for when judges appear in court.

"We are left to guess whether we were exposed by attending court," she said. She added that two of her colleagues arrived from out of state only to find that the hearings for their clients weren't moving forward.

The OIG acknowledged that EOIR's efforts to improve issues that impacted court employees were hampered by privacy rights laid out by the Office of Personnel Management, as well as delays to internal communications caused by vetting needed for communications by the DOJ.

"EOIR's initial communication related to the pandemic was sometimes unclear, inconsistent, and untimely, which resulted in confusion and anxiety," the OIG said.

The OIG said that EOIR should consider expanding its electronic filing system to all courts and making it mandatory to potentially reduce the need for staff to work in person. Users should also receive a confirmation that their electronic filing was received, which doesn't always happen, the watchdog said.

In a response that was included in the report, EOIR agreed with most of the OIG's eight recommendations and said that remote hearings were difficult to hold because its technology didn't meet the DOJ's security standards.

But the agency said it couldn't fully agree to coordinate communications about COVID-19 exposures with other agencies in non-DOJ federal buildings that house immigration courts.

"EOIR ultimately does not control the timing or content of many of the building-related announcements regarding pandemic operations," the agency wrote, saying the U.S. Department of Homeland Security is the entity that manages communications and announcements.

But for nonfederal buildings, the agency said it would reach out to other federal agencies to try to coordinate joint announcements.

EOIR also said it couldn't "ensure effectiveness of the reach of its communications" to unaccompanied minors, quarantining respondents and migrants waiting in Mexico for their immigration court proceedings. However, it said it would endeavor to do so in both English and Spanish before the end of fiscal year 2021.

--Editing by Jill Coffey.

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