On Friday afternoon in New York City, the day after Mayor Bill de Blasio declared a state of emergency to help limit the spread of the novel coronavirus, attorneys huddled with their clients in the hallway outside immigration court, standing close enough to whisper about sensitive case details out of earshot.
As health officials at every level of government pleaded with the public to practice “social distancing” and avoid contact with other people, especially indoors, immigration courts around the country kept running as usual, requiring immigrants to appear in person or risk deportation. By Monday, state and federal courts around the country, including the Supreme Court, had closed their doors or postponed arguments, but the Executive Office of Immigration Review, or EOIR—the office within the Justice Department that runs the nation’s immigration courts—had committed only to postponing “master calendar” hearings, which are the initial phase of deportation proceedings, for people who weren’t in detention.
That meant that individual or merits hearings, which are the trial phase of immigration court proceedings, and all hearings for people in immigration detention, would move forward in almost all courts, forcing immigrants and their attorneys to decide which posed a greater risk: an aggressive and highly contagious virus or the possibility of removal to different dangers elsewhere, with very little chance of return. Late Tuesday night, EOIR announced via tweet that all hearings for people not currently in detention would be postponed, and several courts, including two in New York City, would close fully, at least until April 10. But the Varick Street court is still open, and detained hearings are continuing there and at other courts across the country.
The closings came after the union for immigration judges, the union for U.S. Immigration and Customs Enforcement attorneys, and the nation’s largest immigration attorneys’ group—in an unprecedented step—put out a joint call for EOIR to shutter the immigration courts completely for a period of between two and four weeks. “The DOJ is failing to meet its obligations to ensure a safe and healthy environment within our immigration courts,” they wrote. “No doubt, closing the courts is a difficult decision that will impose significant hardship for those in the migrant protection protocols and detained respondents. But these are extraordinary times.”
On a Tuesday afternoon press call involving the three groups, Ashley Tabbador, an immigration judge speaking in her capacity as president of the National Association of Immigration Judges, told The New Republic that judges across the country who had exercised their discretion on a case-by-case basis to grant motions for telephone conferences or issue requests for cases to be put on the next available court docket had been allowed to do so. But judges who “tried to issue standing orders have been told that they can’t do that, that that needs to go through headquarters,” she said. “We have received very little guidance regarding coronavirus … unfortunately, it’s just been each judge up to him or herself to try to deal with this mass pandemic.”
Tabbador also said during the call that the concerns over infection spreading in the courts while EOIR dragged its feet had gone beyond the hypothetical: An attorney who had been in the Atlanta immigration court the previous day said they had been diagnosed with Covid-19 and had just called to self-report the diagnosis. “We have a judge in Denver who’s out sick now with Covid-19 symptoms,” she added.
In an email sent Monday, EOIR spokeswoman Kathryn Mattingly wrote that, “Consistent with normal operations, attorneys may file a motion for each case for which they wish to appear telephonically and each motion will be adjudicated based on the unique factors of the case.” There is no indication that this has changed with the new closings.
Fanny Behar-Ostrow, the president of the American Federation of Government Employees Local 511, which represents ICE trial attorneys, said during the press call that the ICE attorneys were also being required to attend hearings in person. “The agency says that they are not permitted to appear telephonically. And needless to say, I’ve been getting inundated with emails and calls from attorneys concerned about their safety.”
Even as only detained cases continue, some risk remains. Most immigration courts do not have an e-filing system, and evidence, motions, and other papers must typically be filed in person. “You have to touch 3,000 pieces of paper and then physically take them to court and file them with another human, and then that human has to touch all of those pieces of paper and scan it in, so that the judge can access it,” said Christina Brown, an immigration attorney in Denver who said she has been exhibiting Covid-19 symptoms but has not been able to get tested for it. More than just the trials themselves, the process of preparing to appear becomes its own danger—a series of vulnerabilities to expose, or become exposed, to the rapidly spreading virus.
There was also some confusion over cases for people forced to wait in Mexico for their asylum hearings under the Migrant Protection Protocols, also known as Remain in Mexico. As part of MPP, non-Mexican migrants who arrive at the southern border to seek asylum can be forced to return to Mexico to wait for their U.S. immigration court hearings in border state courts. In the meantime, many are cramped into dangerous and unsanitary camps, where the risk of a spread of infectious disease is high. MPP hearings have not been canceled, despite the fact that those in the program are not detained.
“Many are coming from shelters in Juárez, Mexico, across from El Paso, where they’re packed like sardines. There could be some cross-contamination, especially when these people are required to appear at the port of entry at around 3 or 4 in the morning with a series of other persons who are in similar situations. I think that’s a powder keg for infection,” said Alexis Lucero, an El Paso–based attorney with several MPP cases.
“I said, ‘Your honor, what’s going on right now, this is a national emergency. And we are anticipating that these courts should be actually closed. I should not be before you, in a hearing of 30 or more people, to tell you this,’” Lucero explained, recounting what he told a judge after advising his client not to appear under the assumption that MPP hearings were postponed. “We can’t just call in and tell them we’re not going to go, we have to physically bring in a motion, which further subjects us to more encounters.”
Before the closures, hearings had become an impossible choice for some attorneys. Kate Chaltain, a private attorney in New York, has an autoimmune condition that leaves her susceptible to upper respiratory illnesses like Covid-19. “Even if you don’t have 50 people in one courtroom, like you might with a master [calendar], you are still seated directly next to your client, the interpreter; you have to lean in and speak into microphones, you’re less than six feet away from counsel on the other side, you have to approach the judge, and it’s a small space,” she said.
Chaltain had a merits hearing on Monday, but in addition to her susceptibility, neither she nor her client were feeling well. She recommended that they not show at court, and tried electronically filing continuance requests for the case to be put on the next available court docket with ICE, which unlike EOIR does not require paper filing.
“I tried calling the court literally all day, and the phone lines were down so you couldn’t even get through,” said Chaltain. By the late afternoon, the judge and ICE counsel called her about her absence; after she explained the situation, the judge granted a continuance, but that’s by no means guaranteed. Many detained immigrants appear in court via video conference software, but some are still brought to court. If they do appear remotely, their attorneys are mostly expected to show, regardless of risk.
Even if attorneys have the option of calling in, many don’t necessarily view it as a solution. “I’m really concerned because I think it does a real disservice to my client to appear for what is, like, his death penalty trial over the phone, and not be there in person,” said Brown. “I have a duty to my clients, but I also feel a moral and ethical duty to all the other people who are detained there who might be exposed to something if I’m carrying something that is contagious.”