A federal judge in Portland is set to hear arguments Wednesday about whether immigration courts nationwide should be forced to implement measures that further prevent the spread of COVID-19, similar to those voluntarily taken by other courts.
The Southern Poverty Law Center and Portland-based Innovation Law Lab, among others, are suing the Trump administration over what they say are a patchwork of confusing and inconsistent measures that put the public at risk during a global pandemic.
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Courts across the country have dramatically scaled back to only the most essential functions, postponing many trials and hearings in an effort to create more social distance and slow the spread of COVID-19. But immigration courts have largely remained open and at times hosted large groups, while simultaneously spreading confusing messages on social media about official court business, attorneys and immigration advocates allege.
Attorneys for the Trump administration argue the court can’t impose a nationwide restraining order and say their approach to COVID-19 in immigration courts has been “swift, substantial and tailored action.”
The immigration attorneys argue conduct by the U.S. Department of Justice’s Executive Office for Immigration Review, which runs the nation’s immigration courts, “has turned the immigration court system into a public health hazard.”
“(The federal government is) using COVID-19 as a tool to further weaponize the immigration court system, without regard for the resulting public health implications,” the groups allege in their motion for a temporary restraining order filed Friday in U.S. District Court for the District of Oregon.
The immigration groups say the Executive Office for Immigration Review (EOIR) requires attorneys, judges, staff and defendants to appear in person at many immigration courts and have refused to extend court deadlines “even though compliance is dangerous.”
On March 10, EOIR ordered informational posters on how to prevent the spread of COVID-19 removed from immigration courts nationwide, the groups allege. “The posters, provided in both English and Spanish, had been created and disseminated by the CDC as a means to curb the impacts of the deadly virus,” court documents state.
On the evening of March 17, EOIR said on Twitter that hearings for individuals who were not detained would be postponed.
“Although an important initial step towards protecting the public health, EOIR’s failure to extend deadlines associated with postponed hearings, combined with the lack of access to electronic filing systems at many immigration courts, renders EOIR’s action practically meaningless,” court documents allege.
Immigration judges have also chimed in, raising concerns through their national association in a letter from March 30 that asks for immediate public safety measures at the nation’s immigration courts. The National Association of Immigration Judges said the courts are in the midst of a crisis created by EOIR.
“I’ve never witnessed an utter lack of concern for people like I have here. In my former life, we treated captured Taliban and ISIS with more humanity,” one unnamed immigration judge was quoted as saying in the association’s letter.
The association of immigration judges notes that most other federal courts, especially those in coronavirus hot spots, have closed even for criminal trials. Meanwhile, judges and court staff continue to go to work and interpreters continue to travel the country to sit in courtrooms where immigration detainees are frequently brought in as large groups for hearings, the judges association states.
“There is no safe way to run the detained immigration courts during a pandemic because of the amount of social interactions that the courts require,” the association says in its letter.
A group of former immigration judges also filed a friend of the court brief. They wrote of a court in Newark, New Jersey, where thousands of people passed through between March 9 and March 18.
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“An attorney exposed to COVID-19 had been present in court experiencing symptoms,” the group of former immigration judges wrote, citing a letter written by the president of the New Jersey Bar Association. “Later, another attorney became quite ill. There is now a government attorney who ‘has not only tested positive for COVID-19 but is currently in a medically induced coma in ICU fighting for his life.’ As of March 30, 2020, the Newark Immigration Court is currently ‘open.’”
Attorneys with the U.S. Department of Justice, which is representing the Trump administration and EIRO, have raised a number of technical legal and jurisdictional arguments about why the restraining order can’t be imposed. But they do acknowledge there have been issues across the nation’s immigration courts.
“As with court systems throughout the United States, the pandemic has created challenges for the immigration courts and for those who appear in those courts,” attorneys for the Justice Department wrote in court filings.
U.S. District Court Judge Karin Immergut will hear oral arguments in the case. She was appointed to the federal bench by President Trump last year.