PHOENIX – Nearly a month into a seemingly worldwide shutdown, it may be hard to find an everyday business or public area that has not been closed because of COVID-19. Many companies have allowed their employees to work from home, but businesses deemed essential are still in operation.
This includes grocery stores, fuel stations, banks, transportation systems, pharmacies – and most U.S. immigration courts.
The coronavirus pandemic has upended the daily routines of hundreds of millions of Americans.
Yet for migrants in federal custody waiting for their cases to be heard, their reality has not changed much.
As of March 28, Immigration and Customs Enforcement’s average daily population – the total number of individuals in ICE detention across the current fiscal year (Oct. 1 through Sept. 30), divided by the number of days into the fiscal year – was 43,026.
Three out of four Arizona immigration courts – in Phoenix, Eloy and Florence – remain open. A fourth, in Tucson, was closed due to a water main break. All hearings scheduled through May 1 for immigrants who are not in federal detention, as well as cases under the Migrant Protection Protocols docket scheduled through May 1, have been postponed by the Department of Justice.
Yet all detained migrants still remain in federal custody.
All non detained hearings scheduled through April 10 have been postponed in all 63 immigration courts. But immigration judges and court staff from various professional associations say that’s not nearly enough. They have filed a lawsuit against ICE and the Department of Justice’s Executive Office for Immigration Review (EOIR), which oversees all U.S. immigration court cases.
The American Immigration Lawyers Association, the Immigration Justice Campaign, the National Immigration Project of the National Lawyers Guild and several detained immigrants filed the complaint on March 30, calling on ICE and the EOIR to indefinitely suspend all in-person immigration court hearings, as well as provide remote communication opportunities and personal protective equipment for legal representatives to wear.
Immigration attorney Pamela Florian, chairwoman of the American Immigration Lawyers Association’s Arizona chapter, said she and her associates fear for their own well-being as well as the health of their clients.
“Detainees who are in the Arizona detention facilities are at a higher risk because of the conditions that they live in,” Florian said, “and we don’t want to be the ones bringing in the virus to them because we are still forced to continue with our hearings during a pandemic.”
The associations are also looking for the EOIR to provide detained immigrants and legal counselors with protective gear, such as N95 masks, eye protection and gloves, to be used when they meet in facilities that require such gear. The lawyers fear that if they are not provided with the equipment and can’t access them independently, they will not be able to meet with their clients when necessary.
“If we don’t have the required PPE (personal protective equipment) that is in shortage right now at the national level, not seeing our clients or being deprived of that does raise due process concerns because we need to be able to prepare our clients for their hearings,” Florian said.
Immigration lawyer Margarita Silva has been defending both detained and non detained immigrants for 18 years. On March 20, she arrived at an Arizona ICE detention facility to meet with a client with a makeshift collection of PPE that she provided herself.
Silva said that she and her colleagues began to bring their own protective gear to meet with clients in detention centers after they were told by ICE that they would not be allowed in without them.
“I had a friend who had just had a baby in November, and she’s like, ‘Well, I have some masks. You can have a couple,’” Silva said. “And then my husband uses protective eyewear for some of his jobs, and so he said, ‘Well, here you can use these.’ And I ended up getting some nitrile gloves.”
Silva was allowed into the facility wearing her provisional gear. She mentioned that a few of her colleagues have been wearing prescription sunglasses and swimming goggles to meet with clients in custody.
“There was no scrutiny at all,” Silva said. “They had a sign out front that said they were going to take our temperatures before we went in, and that if you had a fever, nobody was getting in. I went in with a group of about 10 people. Nobody’s temperature was taken.”
However, she said she was more shocked to learn she and her colleagues were the only ones in the facility wearing personal protective equipment.
“That was the other weird thing, was that it (the PPE requirement) only applied to the immigrants’ attorneys,” Silva said. “None of the guards were wearing it (protective gear). None of the admin staff were wearing it. Medical personnel inside the facility weren’t wearing any of this. Detainees aren’t wearing any of it.”
The immigration lawyers suing the EOIR also insist the Department of Justice make it possible for them to communicate with their detained clients to promote a safer environment, as the limited phone calls they currently have access to are simply not enough.
Silva said she and her associates have been given the green light to attend all Arizona detained cases by phone at this time. In the past, she said, attorneys had to submit a written request to a judge if they wanted to attend a short hearing by phone, which lawyers who lived far from facilities did frequently.
If the EOIR can’t meet their demands, the professional bar associations said, it must release the detained immigrants with “inadequate access to remote communication” with their legal representatives or immigration courtrooms.
Immigration attorneys and detained immigrants differ on whether detainees should be released at this time, Silva said. Many feel the courts should be closed entirely, she added, but others are frustrated that immigrants in custody will not be released as a result.
“A large amount of these people could be released safely, either on their own recognizance or on bond,” Silva said. “A lot of (immigrants in custody) are not people that would have been considered dangerous. They have houses and families to go to. So it’s not like they would just be wandering the streets. These are people that had jobs.”
Although non detained immigrants may not mind having their cases put on hold for the time being, she said, many want their cases to move forward if they’re forced to remain in custody.
Meanwhile, the American Immigration Lawyers Association has taken the lead in the effort to temporarily suspend immigration courts. The organization initially joined with the National Association of Immigration Judges and the American Federation of Government Employees Local 511 to publish a statement on March 15 that expressed concerns for the health and safety of immigration prosecutors and attorneys.
Since then, 73 other organizations have joined their efforts to close the courts by addressing a letter to U.S. Attorney General William Barr. The letter, signed by organizations including the Arizona Coalition to End Sexual and Domestic Violence and Amnesty International USA, called on Barr to immediately close all U.S. immigration courts.
As the president of the National Association of Immigration Judges, Judge A. Ashley Tabaddor oversees a union of judges that works to improve the immigration court system and promotes the well-being of its members.
“It’s really a historic event that we have prosecutors and the defense attorney organizations come together with the judges, all agreeing that the immigration courts across the country should close temporarily and immediately to allow for the public health officials to get a handle on” the outbreak, said Tabaddor, whose court is in Los Angeles.
Fanny Behar Ostrow is the president of the American Federation of Government Employees Local 511, which represents Immigration and Customs Enforcement attorneys, accountants, statisticians, engineers, architects and other professionals within the federal law enforcement agency.
“It’s a really huge risk to require the attorneys, the public and the judges to appear in these crowded courtrooms,” Behar Ostrow said. “We think that life is a lot more important than conducting an immigration hearing. I think the safety and the life of people outweighs all the other considerations.”
It’s impossible for court staff and litigants to take the proper steps to protect themselves from the coronavirus – like social distancing – while inside immigration courtrooms, said Laura Lynch, the senior policy counsel for the American Immigration Lawyers Association, an association of immigration lawyers and professors that provides legal education and professional services to U.S. families and businesses.
“We’ve been in touch with leading public health experts to explain to us that we really are facing a historical, global pandemic, and if we don’t take immediate steps, we are putting not only the judges, the attorneys, the court staff in danger, but all of the individuals that they come in contact with,” Lynch said. “This is a real threat that we are all facing. The science is clear that we must close all immigration court hearings immediately in order to prevent the spread of the coronavirus.”
As of March 18, the EOIR has postponed indefinitely all master calendar hearings for immigrants who are not in federal detention.
However, many immigration courts – some of which were initially forced to close as a result of the EOIR’s decision – remain open despite these concerns. Courts that can’t hear non detained cases are hearing detained cases and accepting document filings.
“That was a no brainer,” Lynch said. “That is something that should have been done at least a week prior. But it just simply didn’t go far enough. There are still numerous people in the hearing room that could be potentially spreading the coronavirus and we just don’t have the tests to know who has the virus and who does not.”
Many of the notable courts that had initially closed in response to the pandemic, including some in Atlanta, Los Angeles, Houston, Memphis and Sacramento, reopened on March 25 to accept filings and/or determine detained hearings.
Immigration court staff are looking for far more than the postponement of non detained hearings. They said they are looking for a complete nationwide shutdown of all immigration courts for the time being, and for the Department of Justice to promote a safer and more clean space for the judges, attorneys and migrants to occupy after the temporary shutdown is lifted.
“They are not showing the flexibility that is required in this emergency situation,” Tabaddor said of the EOIR. “They are not showing the flexibility that is required in this emergency situation. It’s very important to recognize the importance of putting people’s health above all else before we can start focusing on the next step, which is how do we make this system work under the constraints that we must honor.”
In a statement to Cronkite News, the Executive Office for Immigration Review said that it has been managing the situation in accordance with its pandemic workforce protection plan, which has been in effect since 2014.
For some, complete closure is the only way to protect those who work in the courtroom.
Lynch said the EOIR has not done enough.
“To be clear, they are failing to meet their obligations to ensure a safe and healthy environment within our nation’s courts, which will harm the community at large,” she said.
Lynch added those in detention mainly are migrant families, asylum-seekers and individuals seeking to regularize their status.
“They are very vulnerable populations that could be potentially a compromise by the spread of this virus,” Lynch said. “It was a very difficult decision for our organization to push the Department of Justice to suspend all hearings because we are deeply concerned about all of those vulnerable individuals in the Migrant Protection Protocols program as well as the detained population.”
Behar Ostrow said delays are regrettable but unavoidable under such extraordinary circumstances.
“I feel bad that they (migrants) have to wait for their day in court, but at the same time, it’s better than if they get a day in court and that they get exposed to this virus and possibly get ill, and who knows what else,” she said.
The organizations are recommending various solutions for the EOIR to implement in the meantime. They hope that if the Justice Department shuts all U.S. immigration courts down for a few weeks, they will have enough time to decide how to continue to hear cases in a safer way as the world continues to fight against the pandemic.
“We need to think about ways that the court can function without the day to day interactions,” Tabaddor said. “You can conduct a lot of the court’s business on paper. They also need to secure laptops so that people can do teleworking more effectively. There needs to be ways to look at how to conduct a mission of the court without exposing people to an unnecessary risk to their health.”
Behar Ostrow, who also is an assistant chief counsel in the Miami ICE office, said teleworking has been an effective solution within that agency.
“It’s just really a shame that we’ve had to fight so hard to get the Department of Justice to do the right thing,” she said. “My agency gave authority to the attorneys to appear telephonically. They finally are doing what I think is the right thing. Yesterday they gave permission for all of us to appear by telephone and even from our homes, not even having to go into the office.
“There’s always solutions. We just have to look for them, find them, and implement them.”
The EOIR implemented its first full closure on March 11, when it shut down the Seattle Immigration Court due to the region’s coronavirus outbreak. Seattle’s immigration court was meant to remain closed through April 10, yet reopened on March 26.
“When we consulted with the public health experts,” Tabaddor said, “they said there is no such thing as ‘hotspots’ because right now we don’t have enough testing. The lack of testing and therefore the lack of confirmed cases by no means means that that place is not a risk factor. Everybody is a risk factor. That’s why everyone must follow the rules if we as a nation want to do what we need to do to protect the health and safety of all.”
The Justice Department’s decision to allow several immigration courts to remain open prevails while many other federal and state courts throughout the country temporarily suspend criminal and civil court trials in response to the pandemic, adding to the frustration immigration judges and court staff are feeling.
“It’s highly problematic that this is a political decision and not necessarily one that is being made out of the health and safety of the community,” Lynch said. “This administration is prioritizing deportations over the health and safety of the community at large.”
Behar Ostrow compared this situation to the most recent federal government shutdown, where the Trump administration ordered all courts to close from December 22, 2018 through January 25, 2019.
“I don’t know what’s motivating (the Department of Justice),” Behar Ostrow said, “but I can assure you that I believe that the health and safety and welfare of federal employees and judges and the public and the community at large is a lot more important than a battle over a federal budget and a border wall.”
Tabaddor noted that the country is in “a federal state of emergency.”
“The public health officials that are uniform in their recommendations that people should not be involved in social interactions, particularly in any case in which you are less than six feet from somebody else or in it in a group setting of more than ten people,” she said.
“Immigration court proceedings, by definition, regularly involved that.”