One government lawyer who appeared in a crowded Newark, New Jersey, immigration court last month is in a medically induced coma. A New York immigration lawyer and her client are both sick. Immigration judges are being denied sick leave when they use anxiety or safety as reasons. Migrant children are asking their lawyers if they will fall ill if they go to court, and whether they’ll be deported if they don’t show up.
Sickness, panic, and confusion in the midst of a pandemic: These are the acute side effects of immigration courts continuing to operate as the novel coronavirus races across the country. Despite three weeks of intense pleading to close all 69 courts—across a united front of immigration lawyers, the union representing lawyers for ICE, and the immigration judges’ union—more than two-thirds of them remain open.
The courts that have been closed by the Executive Office for Immigration Review (EOIR), the federal agency that runs them, have often only been shuttered in reaction to a confirmed case of COVID-19 or suspected exposure. The closures are often last-minute, and not clearly communicated, except on Twitter. This week, several immigration legal associations filed two separate federal lawsuits to close the courts because they fear that the government has put their lives in danger.
“I think it’s about time the American people woke up to the fact that EOIR’s willingness to perpetuate and extend this pandemic will inevitably bring the virus to their hometown,” Rebecca Press, the legal director at UnLocal in New York, said Thursday via email. She contracted coronavirus two weeks ago and at least one of her clients is sick. “The longer courts remain open even for filing, and the longer the courts require attorneys and immigrants to engage in the work of preparing evidence, the more likely it becomes that the virus will be brought right back to another community.”
Government lawyers are affected, too. Fanny Behar-Ostrow, the president of American Federation of Government Employees Local 511, the union representing ICE lawyers, is getting calls at all hours of the day from members who worry they have been exposed to the virus. “They are panicked, frightened, desperate, upset,” she said.
In addition to the 36,000 adults in ICE detention facilities, there are some 3,500 migrant children in government custody who are affected by the disarray in the courts. In most courts, children must still attend in-person hearings, putting them at exposure risk. In New York City, the current epicenter of the pandemic, lawyers from Kids in Need of Defense (KIND) have not been told whether EOIR will reschedule cases for next week. They are also unclear about whether the minors even need to come to court at a time when state and city officials have issued stay-at-home orders.
“We are receiving phone calls from children who had their safety net shaken,” said Maria Odom, vice president for legal services for KIND, which is a nonprofit organization contracted to represent unaccompanied minors. “For us serving vulnerable children, there are so many moving pieces and at a time when we should be able to look to the government, they are just contributing to the chaos.”
Lawyers, judges, and advocates wonder: What will it take for EOIR to close courts nationally?
“I hope that it won’t take a death, but I worry that it will,” said Aaron Reichlin-Melnick, an immigration lawyer and policy counsel for the American Immigration Council. His organization is one of the groups behind a lawsuit filed Monday by the National Immigration Project of the National Lawyers Guild.
Behar-Ostrow credited ICE for allowing its lawyers to appear remotely by telephone from home for hearings this week. But even then, she added that some members told her that not enough documents were available online to do a “credible job of representing the government.”
On Monday, EOIR postponed all hearings for immigrants who are not in detention until May 1. On Tuesday, it allowed courts to accept email filings. On Wednesday evening, it announced on Twitter that a Houston area court would be closed because of a secondhand infection, and that it was closing the New Orleans court the next day because of a confirmed positive test.
On Thursday night, it announced those courts would stay closed and added another closure: Boston. An immigration lawyer said on Twitter that she had been at the Boston court Monday before knowing that she had been exposed to COVID-19. “I have now exposed all who work there FOR NO REASON OTHER THAN THE INSANITY OF THE @DOJ_EOIR.”
In a statement, a spokesperson for the agency said: “EOIR takes the safety, health, and well-being of its employees very seriously, and will continue responding to this rapidly evolving pandemic, while ensuring the continuation of its critical missions and updating the public regarding the status of its operations as decisions are made.”
The National Association of Immigration Judges (NAIJ) disputed that the agency was taking its members’ health seriously, calling the operation of detained courts “unconscionable” when there is still so much unknown about the coronavirus.
“It is not in alignment with the reality of what all of us are experiencing,” said Judge Amiena Khan, an immigration judge in New York who spoke in her position as executive vice president of the NAIJ. “You really should not at this point be breaking it down locality to locality.”
Some EOIR supervisors are taking a hardline response to judges calling out sick, not allowing them to invoke the usual “weather and safety” clause and pressuring them to use annual leave. “This torturous maze of getting guidance from our agency and seeking appropriate leave is an everyday occurrence,” Khan said.
Alan Pollack, a New Jersey immigration lawyer, said a government lawyer who worked at the Newark court and contracted COVID-19 there is now on a ventilator. Pollack said an interpreter in the same Newark court tested positive and proactively contacted lawyers. And he added that the judge who had been in court with the government lawyer put himself into isolation. But no directive came from EOIR.
A New Jersey court within the Elizabeth Detention Center closed Monday morning, though despite a tweet from EOIR saying otherwise, the detention center itself was not closed. The Elizabeth Detention Center was where the first ICE staff member tested positive for COVID-19.
The Elizabeth court reopened today without any public notice, but Pollack said there was no judge present.
Rather than calling for a complete court shutdown, the judges’ union wants bond hearings to proceed telephonically or by video conference. The American Immigration Lawyers Association also calls for in-person hearings to end, plus urges improved access for essential hearings for people who are detained. The Varick Street court in Lower Manhattan, which handles cases for adults who are detained, closed March 24, one day after EOIR announced a staff member had been infected with COVID-19. The court reopened the next day. But now, even with a small support staff in the building, all cases are being heard by judges remotely—at an “adjudication center” in Fort Worth, Texas.
Lawyers were still sending cases to judges by mail, but in a hearing this week, judges did not get the documents in time, said Andrea Sáenz, director of the immigration practice at Brooklyn Defender Services. Another lawyer was kept waiting on the line for hours.
On Wednesday, a federal judge in Oregon who was appointed by President Trump, denied a temporary restraining order brought by six immigration advocacy groups that would have limited court operations. The second lawsuit is still pending in District Court in Washington, D.C.