PROSECUTORS AND ATTORNEYS
CALL FOR CONTINUATION OF VIRTUAL HEARINGS AND OPPOSE CHANGE IN POLICY IN NEWARK IMMIGRATION COURT
New Jersey – Both AILA NJ and AFGE Local 511 (ICE Professionals Union) call on the Newark Immigration Court, part of the U.S. Department of Justice, Executive Office for Immigration Review (EOIR), to continue to allow virtual hearings for all attorneys and immigrants, in all cases, without exception. These attorneys are opposed to the recently- announced policy of the Newark Immigration Court requiring all attorneys to either return in person to hearings beginning on October 3, 2022 or to seek waiver of in-person appearance for good cause. Public safety requires virtual hearings, especially for routine preliminary hearings that generate large groups of people in small courtrooms.
This new policy goes far beyond the policies of all other New Jersey court systems, from municipal courts, State courts, and federal courts, and puts everyone at risk—prosecutors, attorneys, court staff, immigrants, and the public at large. Federal and New Jersey State Courts are still operating almost entirely virtually, with exceptions only for criminal jury trials and some other specific proceedings. “EOIR’s new policy of making everyone return to the courtroom in person is dangerous and unjustified,” says Jason Scott Camilo, Chair of AILA NJ. Newark EOIR is not just requiring in-person appearances for contested individual hearings; it is requiring attorneys to appear in person at master calendar hearings as well, which can involve 50-60 cases per judge, per courtroom, every morning and afternoon. Thus, literally hundreds of people will once again be forced into small, unventilated courtrooms and narrow hallways every single day.
Sadly, this is not the first time Newark EOIR has tried to force prosecutors, attorneys, and the public into the courtroom during the pandemic. Numerous people contracted COVID-19 as a result of attending immigration court proceedings in March 2020. One well-respected AILA NJ member passed away as a result, and several people became seriously ill. Other federal workers at the same federal building have also succumbed to the disease. This is in addition to those who suffered and still suffer from long COVID complications.
Despite this, Newark EOIR compelled people back into courtrooms in July 2020. New Jersey immigration attorneys and the New Jersey Chapter of American Immigration Lawyers Association, (AILA NJ), sued EOIR on July 31, 2020 in Federal District Court, New Jersey,
seeking protection from EOIR!s first attempt compelling attorneys to appear in person during the pandemic. Due to this suit, Newark EOIR committed to providing attorneys with remote videoconferencing for the duration of the pandemic and to troubleshoot and address any glitches or interruptions in its use. All Immigration Courts nationwide soon adopted internet based hearings as the default for cases.
Since August 2020, prosecutors, attorneys, and immigrants have been appearing remotely, and, according to polling conducted by AILA NJ, the vast majority of internet-based hearings are proceeding without issue. Secretary Becerra of the United States Health & Human Services recently announced the continuation of the nationwide public health emergency on July 15, 2022. More than 34,000 New Jerseyans have died from COVID-19; over 2,500 people a day are still falling ill in New Jersey alone.
Acknowledging the benefits of internet-based hearings, David L. Neal, Director of EOIR, issued guidance on August 11, 2022, indicating that “all immigration courts have the capacity to hold such hearings…,” that “internet-based hearings have proven a valuable safety measure during the pandemic, as immigration judges can conduct such hearings without requiring groups of people to congregate in a courtroom…,” and that “EOIR anticipates that, going forward, internet-based hearings will remain essential to EOIR’s operations.”
“In fact, EOIR has been holding stakeholder meetings across the country to explain the continued benefits of utilizing Webex in immigration court proceedings. Why, then, would Newark EOIR, which was the first immigration court in the nation to use the WebEx system, suddenly choose to abandon it? Logically and logistically, this makes no sense,” explained Jason Scott Camilo.
Virtual hearings provide other benefits as well. Virtual hearings allow the courts to efficiently process more cases safely. Private attorneys and pro bono organizations are able to represent immigrants more effectively, having the ability to beam into various courtrooms in different locations in a single day.
According to AFGE Local 511, virtual court appearances enable prosecutors to minimize their exposure to hundreds of people in crowded courtrooms every day, while having more time to allocate their limited resources towards resolving cases outside the courtroom in motion practice and in consultation with opposing counsel. OPLA offices are understaffed, and virtual courtrooms enable telework, which in turn permits them to better manage their out of court duties, which primarily consist of efforts to reduce the immigration court backlog. “It makes no sense to hinder government attorneys attempting to assist EOIR in resolving cases ,” said AFGE Local 511’s Executive Vice President, Ginnine Fried, who is assigned to the Newark office.
Newark EOIR’s newly-announced policy requiring attorneys to appear in person or request a waiver is in direct opposition to the resolution of the federal lawsuit, is in direct opposition to the policy of the EOIR Director and, if implemented on October 3, 2022 as planned, will imperil the
health and safety of all who will be forced to appear in person. No other court in the state has taken such radical action. AILA NJ attorneys and AFGE Local 511 attorneys agree there is no valid public policy reason to implement this drastic change, and numerous public policy reasons to continue with virtual immigration court hearings: public safety, increased court efficiency, and uniformity. Standing united, these opposing sides are beseeching the Newark EOIR to let safety prevail and to preserve the health of those Americans working to preserve a fair and equitable Immigration system.
September 29, 2022
Sent via email to david.neal@usdoj.gov
Director David L. Neal
Executive Office for Immigration Review U.S. Department of Justice
950 Pennsylvania Avenue, NW Washington, DC 20530-0001
Dear Director Neal:
NEW JERSEY STATE BAR ASSOCIATION
JERALYN L. LAWRENCE, PRESIDENT Lawrence Law LLC 776 Mountain Boulevard, Suite 202 Watchung, NJ 07069 908-645-1000 • FAX: 908-645-1001 jlawrence@lawlawfirm.com
On behalf of the New Jersey State Bar Association, which includes immigration attorneys among its 16,000 attorney members, I write to seek reconsideration of the policy change the Executive Office of Immigration Review (EOIR) has scheduled to implement in Newark, NJ, on Oct. 3, 2022. After more than two years of successful Webex Master Calendar hearings, EOIR will again require immigration attorneys to appear in person. While vague Webex bandwidth issues have been cited as the impetus for the change, there has been no stated reason why EIOR will not default to the prior practice of holding Master Calendar hearings telephonically. To be sure, there are legitimate concerns about the ability to judge credibility or simultaneous interpretation in certain telephonic immigration hearings, but those issues are not in play here as EOIR has waived clients’ appearance in Master Calendar hearings. Reverting to the pre-pandemic, inflexible court appearance requirements is both unnecessary, in light of back-up telephonic hearing capabilities, and presents costly time and monetary burdens to attorneys and respondents.
I. EOIR HAS SUCCESSFULLY HELD WEBEX HEARINGS SINCE THE HEIGHT OF THE COVID-19 PANDEMIC IN 2020.
EOIR Newark began Webex hearings in summer 2020 because of litigation filed by New Jersey immigration attorneys in the New Jersey chapter of Association of Immigration Lawyers Association (AILA) on July 31, 2020, in the District Court of New Jersey, Newark Vicinage. That suit sought protection from EOIR Newark’s order compelling attorneys to appear in person during the pandemic. As a result of this litigation, Assistant Chief Immigration Judge David Cheng (ACIJ Cheng) of the New Jersey Immigration Court, and on behalf of EOIR Newark, committed to providing attorneys with remote videoconferencing for the duration of the pandemic. As part of the parties’ stipulation for dismissal, the parties agreed to the following:
New Jersey Law Center • One Constitution Square • New Brunswick, New Jersey 08901-1520 732-249-5000 • FAX: 732-249-2815 • EMAIL: president@njsba.com • njsba.com
WHEREAS, PM 21-03 further provides that, “[o]nce WebEx compatibility is available at an immigration court, for the duration of the declared national emergency related to COVID-19, either party may file a motion for the alien or the representative for either party to appear at a hearing by VTC through WebEx rather than in person,” see id.; and
WHEREAS, PM 21-03 further provides that motions to appear at a hearing by VTC through WebEx for any party or party attorney/representative, like motions for telephone appearances, are “subject to the discretion of the immigration judge, any applicable law and any applicable requirements of the ICPM [Immigration Court Practice Manual], a standing order, or a local operating procedure,” see PM 21-03 at p. 4.
See Stipulation for Dismissal, Docket 44, dated Feb. 16, 2021 (Docket No. 2:20-cv-09748- JMV-JBC) (emphasis added), attached hereto as Exhibit A.
In the wake of that consent order, EOIR Newark joined all other state and federal courts in New Jersey in operating virtually during the pandemic. In practice, and pursuant to ACIJ Cheng’s Standing Order dated June 19, 2020, all Master Calendar hearings were held telephonically, without the need for a motion, and all respondents’ appearances were waived if an attorney appeared on their behalf. See Standing Order dated June 19, 2020, attached hereto as Exhibit B. This Standing Order was rescinded pursuant to ACIJ Cheng’s Standing Order on Dec. 28, 2021, effective Jan. 10, 2022, at which time Master Calendar hearings changed from being held telephonically to being held via Webex. As it was before, these were without the need for a motion, and all respondents’ appearances continued to be waived if an attorney appeared on their behalf. See Standing Order dated Dec. 28, 2021, attached hereto as Exhibit C.
Even today, many court operations across New Jersey continue to be virtual. To name a few, state municipal matters are being managed remotely, except for DUIs and trials, and in Superior Court, non-consequential hearings such as preliminary appearances and status conferences continue to be held remotely.1 The U.S. District Court for the District of New Jersey extended its standing order on Aug. 8, 2022, regarding virtual hearings for criminal proceedings.2
Additionally, EOIR itself has acknowledged the benefits of internet-based hearings, for which Newark was a national leader in its overall success as a pilot program jurisdiction. On Aug. 11, 2022, EOIR issued Director’s Memorandum 22-07.3 That stated, “all immigration courts have the capacity to hold such hearings…,” and “internet-based hearings have proven a valuable safety measure during the pandemic, as immigration judges can conduct such hearings without requiring groups of people to congregate in a courtroom…” The memo cites the benefits of internet-based hearings, including that “Respondents and counsel appearing remotely are
1 See njcourts.gov/public/covid19_one-stop.html#court_hearings, last accessed Sept. 27, 2022.
2 See njd.uscourts.gov/sites/njd/files/CARESActSOSixthExt.ofSO2021-03.pdf, last accessed Sept. 27, 2022. 3 See justice.gov/eoir/page/file/1525691/download, last accessed Sept 27, 2022.
-2-
relieved from traveling to court.” Finally, the memo said that “EOIR anticipates that, going forward, internet-based hearings will remain essential to EOIR’s operations.”
II. EOIR NEWARK INTENDS TO SUSPEND STANDARD WEBEX HEARINGS ON OCT. 3, 2022, WITHOUT PROPER NOTICE TO THE BAR, INCLUDING NJSBA.
Notwithstanding the above, the EOIR seeks to disband the standard for Webex hearings without proper notice to New Jersey attorneys and their clients who will be substantially and disproportionately affected by this sudden policy shift. The NJSBA only learned of this policy through its affiliate AILA NJ members when the committee chair for AILA NJ announced the new policy to its members by email on Aug. 30, 2022. The email was supplemented on Aug. 31, 2022, and again Sept. 8, 2022. The below paragraphs, taken from our AILA NJ colleagues’ letter to EOIR leadership, contain the entirety of the new policy, which was communicated via the emails referenced above.
From the Aug. 30, 2022 Email from EOIR Committee Chair:
The standing order for Webex hearings is revoked and in person appearances required as of 10/3/22. This of course is subject to exceptions and variations as follows:
1. Webex hearings will continue for all cases heard by Judge Ranasinghe and Judge Jeannopolous
2. Judge Pierro and Judge Chen will have in person master calendars and Webex merits hearings.
3. Judges Rubin, Rastegar, Riefkohl, Finston, Wilson and Lane will have in person hearings master and merits.
4. Represented respondents’ appearances are waived for master calendars like they are now on Webex masters, but not for merits hearings. This includes cases where an attorney is already on record or making his/her first appearance. Atty shows up, the respondent does not have to appear. If you are hired at the last minute and can’t make it, the respondent has to appear.
5. This does not apply to Elizabeth hearings as the facility does not admit visitors, all remote hearings.
6. If it is Judge Shirole or Pope and the hearing notice is for Newark, (DD Case), in person at Newark. Any doubts about Shirole call Elizabeth. Pope will all be in person.
7. You can still file a motion for a Webex hearing for good cause but it MUST be filed 15 days or before. If it is not granted you have to
-3-
appear. I am told the reason for this is the Webex bandwidth is incapable of handling the level of internet traffic that has developed. The system is crashing constantly. More and more attorneys are using it with technical issues constantly. So the “good cause” issue will be a major consideration in granting or denying motions for Webex calendars.
From August 31, 2022 Email from EOIR Committee Chair:
1. DHS has to appear in person and they will be required to file motions for Webex.
2. I failed to include ACIJ Cheng and IJ Mullican among the list of judges where in person appearances are required.
From September 8, 2022 Email from EOIR Committee Chair:
ACIJ Cheng has rephrased the “good cause” language requirement for a Webex motion. He chooses to phrase it as “there has to be a reason”.
See AILA New Jersey letter dated Sept. 23, 2022, attached hereto as Exhibit D.
III. THE NEW POLICY FAILS TO PROVIDE PROPER NOTICE TO NEW JERSEY ATTORNEYS AND IT IS IN CONFLICT WITH PRINCIPLES OF EQUAL ACCESS TO JUSTICE, DUE PROCESS AND FUNDAMENTAL FAIRNESS.
EOIR Newark failed to circulate a general notice to the entire bar of the policy change and thereby limited the ability of all practitioners to learn of the change in a timely fashion.
Indeed,
unless immigration attorneys are members of AILA NJ, which some, but not all NJSBA Immigration Law Section members are, they might still be unaware of this abrupt change in policy, which will prejudice them and their clients. To date, EOIR Newark has not published a formal standing order to officially announce it. This lack of notice will hinder equal access to the justice system for countless respondents whose attorneys are not aware of the sweeping changes
made to the practice. As our AILA NJ colleagues adeptly stated, notice of these changes should come directly from EOIR Newark in the form of a standing order, notice to the bar, website update, or other written statement. Further, the new policy is confusing and complicated in its
implementation.
This new policy also denies equal access to justice because of the effect it will have on attorneys’ fees. The fees for appearing at Master Calendar hearings in person, rather than virtually, will be markedly more expensive, and needlessly so, for immigration clients. Although clients’ appearance would be waived, the time attorneys spend to appear in person will be exponentially greater than that spent at a Webex appearance. In immigration removal proceedings, where respondents have no right to court-appointed counsel, many clients will find it cost prohibitive to pay an attorney for protracted appearances at Master Calendar hearings in Newark. An additional
-4-
consequence may be that seasoned immigration attorneys would limit the removal defense cases
they accept that require needless Newark appearances.
Consistency in agency practices is a hallmark of due process and fundamental fairness. Respondents and attorneys should be able to rely on established policies and practices and conform their behavior accordingly. To be clear, changes should be announced with reasonable notice and ample breadth to the entire legal community. EOIR Newark’s decision to change course without prior, reasonable notice will have serious economic and practical consequences to immigration attorneys and their clients.
IV. THE NEW POLICY WILL BE UNNECESSARILY BURDENSOME AND WILL RESULT IN ADDITIONAL BACKLOGS AND INEFFICIENCIES THROUGHOUT THE IMMIGRATION COURT SYSTEM.
The new EOIR Newark policy will burden immigration attorneys by immediately requiring them to appear in person in Newark for Master Calendar hearings while their clients’ appearances remain waived. A Master Calendar hearing in Immigration Court is the equivalent to a status conference in most other litigation-based practice areas. They are administrative, taking approximately five to 15 minutes to complete. This will place a heavy burden on immigration attorneys across New Jersey all of whom will again be required to be physically present on the 12th Floor of EOIR Newark, which is New Jersey’s sole immigration court, by 8:30 a.m. on any given weekday for a hearing that will likely last fewer than 15 minutes. This change will be a hardship for attorneys from the south, such as an attorney from Cape May who would have to travel 148 miles to Newark, as well as those from the north, such as an attorney from Montague
who would have to travel 59 miles to Newark, all for a brief hearing.
A silver lining of the COVID-19 pandemic has been the legal community’s embrace of technology. Attorneys and courts alike learned, adopted, and then mastered a more efficient process to effectively practice law. There is no reason to revert to antiquated, unnecessary practices. Health concerns aside, appearing for Master Calendar hearings via Webex has proven to be a much more efficient process that reallocates attorneys’ time into their files and clients’ valuable financial resources. If Webex is experiencing bandwidth issues, telephonic Master
Calendar hearings should be the back-up policy for attorneys rather than in person Master Calendar hearings. Immigration attorneys rely on Webex hearings to manage their practices, caseloads and clients’ schedules and expectations. Immigration attorneys have relied on the belief that EOIR Newark’s Master Calendar hearings would be handled in a remote fashion and have entered into retainer agreements with clients with fee estimates that do not contemplate in- person appearances, have scheduled their calendars, and accepted other court hearing dates, upon that belief. This new policy, which is being implemented in a haphazard manner, creates numerous conflicts, requiring voluminous motion practice to correct. The new policy would upend these successfully established practices on which attorneys, their staff, and their clients
have come to rely over the last two years.
The new policy states that motions to appear via Webex will be entertained, but that they must enumerate a “reason for the request.” Requiring a motion requesting a virtual hearing on every Master Calendar hearing, where an attorney may have dozens in any given week, is an
-5-
overwhelming and unnecessary burden. Additionally, the court, and its already backlogged docket, will be flooded with motions for virtual hearings. The most likely reality is that a majority of attorney motions requesting Webex appearances would be undecided by the date of the appearance. That would lead to a stressful situation each week in which immigration attorneys cannot properly plan their schedules and calendars because they do not know whether or how the immigration judge has ruled on their motion, and whether an in-person appearance will be necessary. Additionally, calling EOIR Newark to ascertain an immigration judge’s decision on a pending Webex motion is, and will continue to be, an unreliable practice strategy. Court staff are already far too busy with court administration to field dozens of additional calls
from immigration attorneys each day relating to these issues.
EOIR should continue to permit immigration attorneys to appear for Master Calendar hearings via Webex as standard policy, without a motion. Although EOIR Newark has cited bandwidth concerns as an impetus for the sudden return to in person hearings, it has failed to set forth any basis for not defaulting to the process of holding Master Calendar hearings telephonically nor any substantive reasoning to support the policy that an attorney’s in-person appearance at a Master Calendar hearing is vital to the judicial process. Indeed, prior to the Dec. 21, 2021, EOIR Newark standing order to conduct Master Calendar hearings by Webex, all Master Calendar hearings were handled successfully via telephone, with the respondent’s appearance waived. If bandwidth upgrades are a concern, EOIR Newark should temporarily reinstate that practice and hold Master Calendar hearings with immigration attorneys via telephone until Webex bandwidth
issues are rectified.
Once again, the NJSBA urges this court to permit hearings for all Master Calendar hearings to be held telephonically or via Webex, without the need for a motion. When we learn and implement a better process, we should embrace that spirit of innovation and creative problem solving rather than revert to antiquated processes. We look forward to working with EOIR Newark to find solutions that allow the court to efficiently accomplish its work and best serve the litigants who appear before it.
Very truly yours,
Jeralyn L. Lawrence, Esq.
President, New Jersey State Bar Association
Cc: Hon. David Cheng, Assistant Chief Immigration Judge, EOIR Newark (sent via email to david.cheng@dhs.gov)
-6-
One of my reliable sources in the DMV area says that DHS is predicting the same awful “bandwidth” mess at the newly opened “Sterling Immigration Court.” How does a judicial system open “new courts” and mass reschedule cases without checking out basics like “bandwidth capacity” in advance? Total, inexcusable incompetence!
Sadly, this is not a surprise to those of us who have been blasting Garland’s horrible failure to make the glaringly obvious (to all but him) systemic, structural, and personnel changes to restore at least a modicum of due process in his failed “court system” — America’s worst courts, as I have been saying over and over.
