March 26, 2020
The Honorable William P. Barr, Attorney General, U.S. Department of Justice
James McHenry, Director, Executive Office for Immigration Review
Submitted via email
RE: THE DOJ MUST IMMEDIATELY CLOSE ALL IMMIGRATION COURTS DURING THE COVID-19 PANDEMIC
Dear Attorney General Barr and Director McHenry,
Following previous calls by the National Association of Immigration Judges (NAIJ), the American Federation of Government Employees (AFGE) Local 511 (ICE Professionals Union), and the American Immigration Lawyers Association (AILA) for the temporary closure of all immigration courts, we, the undersigned international, national, state, and local immigration, civil rights, faith-based, government accountability, and labor organizations urge the U.S. Department of Justice (DOJ) to immediately close all 68 Immigration Courts operated by the Executive Office for Immigration Review (EOIR) in adherence with current public health protocols regarding the COVID-19 virus.
On the evening of March 17, EOIR postponed all non-detained hearings and recently postponed all of the Migrant Protection Protocol hearings (MPP) scheduled through April 22, 2020. However, more aggressive action is needed. While these policies are a step in the right direction, they fall far short of the required action called for by this pandemic emergency. The detained courts must also be closed to in-person hearings in order to minimize the spread of the virus, slow the rate of new infections, and to avoid overwhelming local resources.
Given the particular vulnerability of respondents in detained settings, the use of telework, which has been advocated by the Administration, can and should be quickly put in place. Immigration Judges stand ready and able to work to ensure priority matters, including detained bond matters, are addressed using technological tools. DOJ should permit all detained respondents to immediately receive telephonic bond redetermination hearings with teleworking judges and allow supporting documents to be faxed and emailed to a designated point of contact. When possible, ICE OPLA should stipulate to bond in written motions so it is not necessary to hold hearings.
The urgency for immediate, decisive action in this matter cannot be overstated. Every link in the chain that brings individuals to the court - from the use of public transportation, to security lines, crowded elevators, cramped cubicle spaces of court staff, packed waiting room facilities in the courthouses, and inadequate sanitizing resources at the courts - place lives at risk.
Every state and the District of Columbia have declared a state of emergency giving government leaders the opportunity to implement bold and unprecedented measures to slow and eventually eliminate the spread of the virus. Some officials are releasing prisoners, allowing them to shelter in place at home. Cities, county, and state governments have moved swiftly to implement stay at home orders to ensure the protection of community members from this highly communicable virus. These measures include the scaling back of mass transit conveyances to most urban centers where the immigration courts are located, creating significant logistical problems for anyone needing to access the courts. On March 21, the Department of Homeland Security (DHS) announced that it will now require all legal visitors to provide and wear personal protective equipment (PPE) (disposable vinyl gloves, N-95 or surgical masks, and eye protection) in order to enter any detention facility, despite the nationwide shortage of PPE.
Yet EOIR continues to operate courts in a business-as-usual manner, placing court personnel, litigants, and all community members in harm’s way. To make matters worse, DOJ and EOIR decision-making has been opaque, with inadequate information being released, causing confusion and leading to litigants showing up at hearings that are cancelled without notice.
DOJ’s current response to the COVID-19 pandemic and its spread is frighteningly disconnected from the realities of our communities, and the advice of local leaders and scientific experts. DOJ must immediately implement the temporary closure all immigration courts. Failing to take this action now will exacerbate a once-in-a-century public health crisis and lead to a greater loss of life.
If you have any questions, please do not hesitate to contact Laura Lynch, Senior Policy Counsel, AILA (firstname.lastname@example.org), Judge Ashley Tabaddor, President, NAIJ (email@example.com), or Fanny Behar-Ostrow, President, AFGE Local 511 (firstname.lastname@example.org).