Immigration Lawyers Seek to Halt In-Person Hearings Amid Covid Fears

(AP Photo/Wilfredo Lee, File)

(CN) — New Jersey immigration lawyers say in a lawsuit filed Friday against the U.S. Justice Department that required in-person immigration hearings unnecessarily puts their lives at risk during the coronavirus pandemic and seek an injunction barring in-court proceedings.

The Newark Immigration Court was closed to in-court proceedings in March following the Covid-19 outbreak, and after an immigration attorney and a staff member of the immigration prosecution office died of the virus.

The Justice Department’s Executive Office for Immigration Review, the federal agency responsible for directing and managing the immigration court system, has since reversed that.

On June 24, without advance notice to immigration lawyers, EOIR announced on Twitter that it would reopen the Newark Immigration Court July 13 and resume hearings in cases involving non-detained immigrants.

Friday’s suit filed in the U.S. District Court for the District of New Jersey argues that the decision puts immigration attorneys at risk of contracting and spreading the disease.

Despite the risks posed by the spread of Covid-19, “and the actual serious illness and death it has already caused to people involved with the Newark Immigration Court, that court was recently reopened for immigration hearings regarding cases for persons who are not held in detention (the so-called ‘non-detained docket’),” the attorney plaintiffs said in their complaint.

“Moreover, even though immigration law and regulations provide for immigration hearings to take place by videoconference — and the Executive Office of Immigration Review, which operates the nation’s immigration courts, has touted its use of such videoconference hearings — the Newark Immigration Court does not provide the option for attorneys or others to appear by videoconference for cases on the non-detained docket.”

Named as plaintiff in the complaint is the New Jersey chapter of the American Immigration Lawyers Association on behalf of members Michael DiRaimondo, Brian O’Neill, and Elizabeth Trinidad. The complaint was filed by attorneys Lawrence S. Lustberg and Michael R. Noveck of the Newark firm of Gibbons Law.

Named as plaintiffs are the Executive Office for Immigration Review, U.S. Attorney General William Barr, EOIR Director James McHenry, and David Cheng, assistant chief immigration judge for the Newark Immigration Court.

The U.S. Justice Department did not immediately respond to a request for comment Friday from Courthouse News Service.

In their complaint, the plaintiffs argue that forcing attorneys to appear in court in person puts them at “significant risk to their personal health and to the detriment of the overall public health.” 

The complaint asserts that defendants violated the Administrative Procedure Act and violated the Due Process Clause and the Fifth Amendment of the U.S. Constitution. They seek an order enjoining the defendants from conducting compelled, in-person immigration proceedings.

The plaintiffs say immigration lawyers face a serious dilemma with in-court proceedings during this pandemic.  Plaintiffs Trinidad and O’Neill, for example, were ordered to appear for in-person hearings on Monday, Aug. 3, because their client did not consent to a telephonic hearing. The judge made it clear the lawyers could face sanctions if they fail to appear in person.

EOIR regulates the immigration attorneys who practice before the nation’s immigration courts with a special set of rules, and it can restrict or prohibit attorneys from appearing in any immigration, the complaint states.

Thus, “in the absence of the ability to appear remotely by videoconference,” the complaint adds, “immigration attorneys who practice before the Newark Immigration Court now face an untenable dilemma: either appear in court and risk their health and the health of others, or fail to appear and risk sanctions for failure to comply with applicable rules of professional conduct.”

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