Not So Fast: Dems Ask EOIR To Prove It's Ready For Hearings

By Jennifer Doherty
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Law360 (June 23, 2020, 8:30 PM EDT) -- Democratic senators questioned the Executive Office for Immigration Review's plans to restart hearings as early as June 29 — despite continued upticks in COVID-19 cases across the country — in a five-page letter sent to EOIR Director James McHenry on Tuesday.

Twelve senators, spearheaded by Sen. Elizabeth Warren, D-Mass., signed the letter, which called on the EOIR to demonstrate by June 30 that it had thought through the risks — both to people's health and to due process — associated with reopening amid a pandemic.

The senators took specific exception to the EOIR's procedure in announcing its plans for reopening. The office first listed the dates specific courts would reopen in tweets before finally issuing a formal memorandum on June 11.

"This memorandum, however, fails to clarify how or why EOIR decided to resume hearings in some locations, how EOIR selected those locations, who is making those decisions, how the decision-makers are weighing public health and due process considerations and how EOIR can avoid repeating mistakes that threatened people's health in the immigration courts earlier in the pandemic," the senators wrote.

In their letter, the senators asked the EOIR to explain why its memorandum did not require "guaranteed sufficient social distancing be a criterion for reopening" and how it plans to ensure that "sufficient social distancing will take place in the immigration courts."

"[I]t is critical that during this pandemic, EOIR carefully consider all of the implications of reopening and communicate its decisions clearly with all of the people who have stakes in cases before the courts," Warren told Law360.

A Warren staffer also directed Law360 to contact Laura Lynch, senior policy counsel at the American Immigration Lawyers Association. Lynch was the lead author of a June 15 letter to the EOIR co-signed by six immigrant advocacy groups, and consulted Warren's team during the drafting process.

"The Senate letter really strikes at the heart of the issue, in that EOIR is simply failing in its obligation to share this vital safety and public health information," Lynch told Law360.

"The overall lack of transparency about the piecemeal immigration court operations has led to mass confusion," she added. "What we've seen since March has really been this unpredictable policymaking by EOIR using Twitter and using late-night emails to relay vital and important announcements that ultimately impact public safety."

Advocacy groups have expressed concern that the EOIR's late decision to postpone hearings in nondetained cases was a factor in spreading COVID-19 among immigrants and court employees.

A representative for the EOIR did not immediately respond to requests for comment Tuesday.

--Additional reporting by Suzanne Monyak. Editing by Stephen Berg.

Update: This story has been updated with a response from Sen. Warren.

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