(CN) — Calling business-as-usual immigration courts “an example of what not to do” to prevent the spread of the novel coronavirus, the National Association of Immigration Judges revived their call Wednesday for the federal government to shut down courts that are still operating.
Representing the 440 U.S. judges who hear cases in U.S. immigration courts, the judges’ union said a survey of 69 immigration courts across the country revealed only a few courts are closed, while over 60 remain open in full or limited operations.
Judge Ashley Tabaddor, president of the National Association of Immigration Judges, said in an interview with Courthouse News the Department of Justice has responded to pressure to close immigration courts in an “incremental fashion” and “is trying to keep the optics of the facade of an open court.”
“The federal government should be modeling best practices for containing the spread of this virus. The open immigration courts are an example of what not to do. Judges, attorneys, prosecutors and litigants are being forced to gather in courtrooms and buildings where there are confirmed cases of coronavirus and where people are visibly sick,” Tabaddor said in a statement.
Immigration judges are also interacting with guards and detainees traveling back and forth from detention facilities where Covid-19 has been confirmed, Tabaddor added.
“The U.S. Department of Justice is risking the lives of litigants and court personnel and imperiling the public by facilitating the spread of a deadly disease. It’s time to close the courts and move to a full telework model for the emergency cases — now,” she added.
Tabaddor said the National Association of Immigration Judges was concerned about “opaque standards” for when some courts are closed and why.
Her concern was echoed by American Immigration Lawyers Association Senior Policy Counsel Laura Lynch who said there’s inconsistency among the courts when the Executive Office for Immigration Review is informed of a positive Covid-19 case where a person had been to an immigration court.
She said the EOIR has notified the public of court closures via Twitter posts, which are sometimes published close to midnight the night before a court is closed.
“It’s deeply disturbing the EOIR is not sharing publicly when individuals have reported they have tested positive or are exhibiting symptoms for Covid-19,” Lynch said.
“The lack of transparency from the agency could have grave impacts on the health of the public. It’s time for oversight agencies to investigate why this administration is refusing to be transparent about this immediate threat to public safety,” she added.
American Federation of Government Employees Local 511, Immigration and Customs Enforcement Professionals Union representative Fanny Behar-Ostrow said as of this week, only five immigration judges nationwide are still requiring government attorneys to appear in person. Three of the judges are based in El Paso, Texas, a fourth is in Eloy, Arizona, and another is in Honolulu, Hawaii, Behar-Ostrow said.
Behar-Ostrow said she didn’t know the judges’ reasoning for continuing to require in-person hearings. She said U.S. Attorney General William Barr’s memo to U.S. Attorneys designating them as “essential employees” during the pandemic “makes no sense to us” since detained and non-detained hearings can be postponed.
Tabaddor said bond hearings could be “conducted with barebones information” telephonically because the two considerations for whether an immigrant detainee should be paroled into the community is if they are a danger to society or a flight risk.
“You don’t need to hold an extended asylum hearing with hours of in-person testimony,” Tabaddor said. “You need to distinguish between emergency-type hearings and other hearings.”
Lynch agreed, noting the hearings are civil proceedings which could largely be postponed until the public health emergency is lifted so long as Immigration and Customs Enforcement exercises its discretion to parole people outside of immigration detention.
The call revives an unprecedented joint memo by immigration judges, prosecutors and attorneys in March calling for the emergency closure of immigration courts in adherence with public health directives to slow the spread of coronavirus.
Three weeks later, the courts remain open.
In the time since, National Association of Immigration Judges members have reported being exposed to Covid-19 while at work, according to the organization.
There have been multiple incidents regarding coronavirus exposure in New York, the epicenter of the U.S. outbreak, where an immigration judge at Varick Immigration Court tested positive for the disease and has pneumonia. A staff member and attorney have also tested positive.
In Fishkill and Ulster, New York, there are nine confirmed Covid-19 cases among correction officers who transport detainees to and from court.
An immigration lawyer in Atlanta tested positive a day after appearing in a crowded courtroom, according to the organization.
Immigration court proceedings are still underway in Oakdale, Louisiana, where five prisoners from a nearby detention facility have died from Covid-19. An attorney and court staff member have also tested positive for the disease.
Both Tabaddor and Lynch said some judges and attorneys have self-isolated away from immunocompromised family members since they are still working at immigration court.
While the judges’ union is calling for the government to move court proceedings online, there have already been technology breakdowns in some attempts to create a telework environment.
Members have reported malfunctioning conference call systems and software used to hold court hearings by telephone, with calls being dropped and interpreters unable to hear witnesses. Creating an accurate record of the legal proceedings becomes impossible due to the technology breakdown, according to the organization.
Tabaddor said continuing to hold court hearings is “an exercise in futility” because many hearings are continued due to technological setbacks. In the meantime, judges, court staff, attorneys and immigrants are unnecessarily gathered, where they could be exposed to coronavirus.
“Not having functioning, modern technology so we can conduct remote hearings is simply embarrassing. Public and private organizations all over the world are adapting rapidly to remote work. What’s wrong at the U.S. Department of Justice?” Tabaddor asked.
The Justice Department did not immediately respond to an email request for comment.