Category: John A. Freedman

Key Excerpt:

We are in the midst of a nationwide pandemic. From the approach of the Executive Office for Immigration Review (EOIR) headquarters, one would never know that. Through a series of chaotic and inconsistent announcements, EOIR —the office that manages the procedural components of the immigration court system on behalf of the United States Department of Justice2—has continued to schedule non-essential proceedings, requiring judges, court staff and security personnel, litigants and case participants, attorneys, witnesses, interpreters, and interested members of the public to come immigration court, exposing them, their families, and their communities to unnecessary risk of COVID-19.
1 In accordance with Local Rule 7(o), no party’s counsel authored this brief in whole or in part, nor did any party or party’s counsel, or any other person other than amici curiae, contribute money that was intended to fund preparing or submitting this brief.
2 See 8 C.F.R. § 1003.0(b) (setting forth the authority of the Director of EOIR).

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The madness of EOIR s approach is evident in one example, representative of its
approach. Yesterday – April 8 — the immigration court in Elizabeth, New Jersey was open for business as usual. This court is across the Hudson River from New York City, and is near the epicenter of the largest COVID-19 hotspot on the planet, and is in a jurisdiction that has had a mandatory shelter-in-place” order since March 21. Yet EOIR insisted that proceedings continue
yesterday. Until it was learned that two detainees in the courthouse were positive for COVID- 19. Only then did EOIR accede to the obvious, scrambling to order the court to shut the Elizabeth court down. But immigration courts were open in many other jurisdictions yesterday, and are scheduled to be open today and for the foreseeable future.
EOIR’s intransigence defies the practice of numerous federal and state courts, the
recommendations of public health officials, and the orders of dozens of Governors who have ordered all non-essential business be deferred. As Judge Samuel Cole, a spokesperson for the National Association of Immigration Judges warned, everyone is being put at risk.” Close immigration courts? Lawyers and judges push to stop in-person hearings amid coronavirus spread, Fortune (Mar. 26, 2020) (describing how attorneys are wearing swim googles and masks to comply with EOIR orders).
The current EOIR approach manifests this disarray because there was not, and has never been, any meaningful continuity planning by EOIR. EOIR, and therefore the immigration court system itself, has sacrificed due process in favor of rapid removals, leaving the court without any incentive at all to plan to protect the public health or the individuals and participants in the system.
Amici urge the issuance of a temporary restraining order to allow for development of a more comprehensive, systemic, and scientifically sound policy that respects due process and the
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public health. We offer a framework for what a legally and scientifically sound policy could look like and why a court-ordered pause on all non-essential activities for a short 28-day period could allow for such a policy to emerge in deliberations with stakeholder communities.

 

Read the entire brief, which contains our proposed solution for how the Immigration Courts could conduct essential operations consistent with health, safety, and due process during this pandemic: Amicus brief_NIPNLG

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Again, many, many thanks to John Freedman and his group at Arnold & Porter as well as Ilyce & Jeffrey for their leadership.

Due Process Forever! EOIR’s Insanity, Never!

PWS
04-1–20