Two days after an urgent plea by worried judges, government prosecutors and immigration attorneys, the Department of Justice announced late Tuesday night that it was closing many of the nation’s immigration courts through early April.
The Executive Office for Immigration Review, which runs the courts within the DOJ, cited “continuing evaluation of information from local, regional, state, and federal officials regarding the coronavirus pandemic.”
The agency said updates would be posted on its website.
The directive applied to two courts in New York City, as well as Atlanta, Charlotte, Houston, Louisville, Sacramento, Newark, Memphis. However, hearings with immigrants in detention continue in courts that remain open. That means judges and attorneys must come to work in person while the immigrant remains in detention and is seen by video, or is brought to court in person. Hearings at New York’s court on Varick Street for detained immigrants are all done by video.
The decision did not satisfy Ashley Tabaddor, president of the National Association of Immigration Judges. “There is no rhyme or reason as to the agency's decision making,” she said. “We need the courts to shut down now” for detained cases “unless they can be conducted while observing all the public health requirements.”
She cited a directive she received from an unnamed supervisor that said “decisions for court closures are based upon individual incidents at each respective court.” It also said decisions for closure “are beyond the agency level; but rather are forwarded to Main DOJ and ultimately the White House.”
On Tuesday, Tabaddor joined immigration lawyers and a representative from the union representing lawyers from Immigration and Customs Enforcement in a conference call with reporters -- a rare show of public unity by the different parties in immigration court. They said it was impossible to practice the social distancing President Donald Trump had called for, with gatherings of no more than 10 people, in courtrooms where attorneys and immigrants sit together in front of a judge inside federal buildings with elevators and lines for metal detectors.
This week, Gothamist/WNYC heard from attorneys in New Jersey who said most immigration judges at the Newark court were calling in sick, and from lawyers in New York who said their clients were caught between a rock and a hard place -- because skipping court could get them deported, but appearing at court could put their lives at risk.
“I’ve been getting inundated with emails and calls,” said Fanny Behar-Ostrow, President of the American Federation of Government Employees Local 511, which includes the government prosecutors in immigration courts. On Tuesday she said she was hearing reports from lawyers who said they were in courtrooms with people who were sick, or that they may have been in contact with someone who was later quarantined.
Earlier this week, Tabaddor said judges at the border were still presiding over courtrooms filled with immigrants who had been forced to wait in Mexico, and were coming back to the U.S. for their hearings. She also blasted DOJ for making announcements by Twitter instead of communicating more directly with employees and the public.
Last year, immigration courts were closed for about a month during the government shutdown. Tabaddor said leaving them open during a pandemic highlighted the “politicized nature” of the immigration courts, which are housed within the DOJ.
“They are doing this under direct instructions of the executive branch. An independent immigration court would have never succumbed to those kinds of pressures,” she said, re-upping calls to separate the immigration courts from the DOJ.
The agency that processes green cards and citizenship interviews, USCIS, also closed its offices Wednesday through April. In New York, immigration lawyer Jake LaRaus said he was alarmed to see so many people in the agency’s crowded waiting room at Federal Plaza on Monday.
“I spent about an hour and a half in the waiting room with dozens of other people, including older people and young children,” he described in an email. “USCIS staff were wearing gloves, but I saw no evidence that other precautions were being taken,” he said, such as wiping down fingerprint sensors in between use by different people.”
Waiting longer for citizenship applications and court appearances will come at a cost, however. New York’s immigration court is the biggest in the nation, with a backlog of more than 100,000 cases. Immigrants desperate to bring over relatives also have to wait because US embassies aren’t processing applications.
“Calling off interviews and hearings was a good first step by USCIS and the immigration courts to protect the health and safety of immigrants and their advocates during this global health crisis,” said Rex Chen, Director of Immigration at Legal Services NYC. But he said more work is needed.
“Right now, attorneys must still meet filing deadlines which require them to meet clients in person to get signatures and then physically mail in their paperwork, putting them a risk of exposure,” Chen said. “USCIS could postpone those filing deadlines until offices are open again. Additionally, we do not yet know if judges who are working from home are able to hear some easy-to-resolve cases by video that would help cut down on growing case backlogs.”