On Thursday morning, immigration lawyer Joshua Bardavid wore a suit to court as well as a blue N95 face mask, Nitrile gloves, and non prescription glasses to protect his eyes. He also carried hand sanitizer.
“All the other lawyers that I saw were also in masks except for one,” he said, adding that about 25 people were in the waiting room. “People certainly looked worried and were doing their best to distance themselves from each other in an enclosed space that’s not particularly hospitable.”
The space he’s referring to is the Varick Street immigration court. With New York City repeatedly referred to as the epicenter of the nation’s COVID-19 pandemic, even criminal courts have slowed down operations and switched to video so judges, lawyers and defendants can avoid traveling and waiting in crowded rooms.
Yet the federal immigration court at 210 Varick Street is still open, along with dozens of others—even after about 10 immigration courts closed down nationwide last week. A rare alliance of unions representing immigration judges and government prosecutors, as well as an association for immigration lawyers, have been begging the Department of Justice to close them.
On Thursday, they were joined by more than 70 additional organizations in sending another letter to the government calling for the immediate closure of all 68 Immigration Courts in the nation.
The Varick Street building was temporarily closed on Tuesday because of a coronavirus case. Amiena Khan, vice president of the National Association of Immigration Judges, said a staffer and some immigration lawyers who regularly go to the building tested positive. She also said a judge who works there has pneumonia and is awaiting test results to determine whether it’s related to COVID-19.
“I don’t understand the decision-making of the agency or our administration at this time,” said Khan. “I think what we need to do is follow the advice of our science leaders, the head of CDC.”
Immigration courts are run by the Department of Justice, and the Trump administration has made immigration enforcement a top priority. Detention centers are also open despite the pandemic. Lawsuits have been filed to release detainees before the illness spreads too quickly in confined spaces.
Immigrants at metro area detention centers spoke to Gothamist/WNYC this week about their fears of getting sick. The first two detained immigrants in the nation to be diagnosed with COVID-19 are in the jails in Bergen and Essex Counties.
The Executive Office for Immigration Review, which runs the immigration courts, issued a response late Thursday defending its decision to keep the immigration courts open for limited purposes. It said, “Most federal courts have continued to receive filings and to hold critical hearings for detained individuals even as they have postponed other hearings.”
The Varick Street court is only being used now for hearings involving detained immigrants, who appear remotely by video teleconference. Judges must still travel to the building, even though prosecutors—who work for Immigration and Customs Enforcement (ICE)—were told to attend hearings by phone. Immigration lawyers can choose whether to come in person or attend hearings by phone.
Bardavid said he biked to Varick Street and saw security guards without any masks or gloves operating the metal detector by the door. “I actually talked to one of the guards and they were told they’re not provided,” he said. “And if they wanted masks or gloves they would have to bring them on their own.”
Bardavid said he had many gloves already because he uses them for cooking, but that a friend who’s a doctor gave him six masks.
Though he could have participated in the hearing by phone, Bardavid said he felt it was important to appear in person because he’s representing a Guatemalan trans woman who’s seeking asylum, and who fears for her health and safety at the Bergen detention center. But he said the hearing was canceled when his judge didn’t appear and he later learned another judge would take the case.
Other lawyers are asking judges to postpone hearings because they can’t adequately prepare their clients. Attorney Craig Relles said it’s too dangerous to visit anyone in detention, and it’s become harder to talk to clients by phone or arrange for video conference calls.
“Some of the time clients aren’t being brought forward because the particular facility they’re in is on lockdown,” he explained.
Earlier this week, the American Association of Deportation Defense Attorneys sent its own letter asking for the Varick Street court and others to be closed. The letter said the mother of a detainee was diagnosed with COVID-19 this week after going to Varick Street to deliver a letter and sitting in the waiting room with other people, and added:
“Can you imagine the number of people she came into contact with as the result of the decision to keep this court open?”
The Executive Office for Immigration Review has posted updates by Twitter and Facebook, which have led to great confusion. Some courts, in Newark and at 290 Broadway in Manhattan, are open for attorneys to request postponements of hearings that were supposed to take place during the pandemic, but they face tight filing deadlines. It also has a status report on its website.
Rex Chen, director of immigration for Legal Services NYC, said these tweets don’t constitute proper legal notification. His organization filed an emergency motion with the immigration court on Broadway asking for more time to request postponements. He said it was “nonsensical” and “absurd” to expect people to risk their health going to FedEx or the Post Office to meet the March 30th deadline they only just learned about by tweet.
Sue Roy, a New Jersey lawyer and former immigration judge, expressed similar alarm over keeping immigration courts in Newark and Elizabeth open after their own brushes with the coronavirus.
“Despite the fact that at least two attorneys and an interpreter have tested positive for COVID-19, which caused the shutdown of the Newark Immigration Court last week, the court was reopened today for filings” she said, adding that she knows this information because she’s Chair of the Immigration Law Section of the New Jersey State Bar Association.
Update: This story has been updated with comment from the EOIR.