Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Star Chamber
Style
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Senior Policy Counsel
AILA
Ex-Immigration Judges Say NJ Court Risking Public Health
By Sarah Martinson
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Law360 (September 2, 2020, 7:00 PM EDT) — More than 30 former immigration judges voiced support for New Jersey lawyers’ lawsuit seeking to stop in-person hearings at Newark Immigration Court during the COVID-19 pandemic, saying the court needs to prioritize people’s health over case completion numbers.
In a letter Tuesday supporting the New Jersey chapter of the American Immigration Lawyers Association‘s suit against the Trump administration, the Round Table of Former Immigration Judges said the fact that the New Jersey immigration court is requiring judges, court staff and interpreters to appear in person at all hearings and not requiring them to wear masks is “troubling,” especially in light of four coronavirus-related deaths of people who visited and worked at the courthouse building.
The U.S. Department of Justice‘s Executive Office for Immigration Review, which operates the Newark Immigration Court, is putting case completion numbers ahead of people’s health and safety, to “the detriment of all those who appear at the court,” the former immigration judges said.
“EOIR’s push to move forward and complete as many cases as possible demonstrates that it has abdicated its responsibility to ensure that all parties are guaranteed a semblance of due process,” they said, adding that the agency’s “complete disregard of the health and safety of not only litigants, but its own employees, is further testament of the agency’s misguided priorities.”
In April 2018, the EOIR announced starting in October of that year immigration judges would be required to complete 700 cases annually and remand less than 15% of cases to have satisfactorily met their job expectations.
The policy change came after the Transactional Records Access Clearinghouse at Syracuse University released a February 2018 report finding that there was a backlog of more than 680,000 cases in immigration courts nationwide. Later that year, TRAC reported that the immigration court backlog surpassed 1 million cases.
The agency’s policy shift raised concerns among immigration advocates that immigration judges wouldn’t be able to decide cases fairly and prompted six immigration advocacy groups to sue the EOIR in federal court. The groups alleged that the Trump administration was weaponizing immigration courts by denying immigrants a fair chance at obtaining asylum.
The former immigration judges and Board of Immigration Appeals judges said in their letter that the Newark Immigration Court has “no legitimate reason” for not using videoconferencing technology that is being used by other New Jersey courts in place of in-person hearings.
“We are well aware of the fact that EOIR has the technology to handle its cases via televideo,” they said.
In March, the American Immigration Lawyers Association along with two other advocacy organizations filed a similar complaint in D.C. federal court seeking the immediate suspension of in-person detention hearings or the release of all detained migrants who have no means to remotely access legal representation or the immigration court.
A D.C. federal judge ruled in that case that the organizations didn’t show the court had the authority to stop proceedings, allowing in-person hearings to continue.
AILA-NJ’s attorney Michael Noveck of Gibbons PC told Law360 in a statement Wednesday that “there is no excuse for EOIR’s failure to conduct proceedings by remote videoconferencing, where the technology to do so is fully available to EOIR.”
“EOIR’s failure to use this readily accessible technology risks the health and lives of attorneys (among others) who are compelled to appear in person at the Newark Immigration Court, and, as we have argued in our complaint and motion for preliminary injunction, it is therefore unlawful and cannot be justified by a rush to deport people,” Noveck said.
Counsel for the federal government declined to comment Wednesday.
AILA-NJ is represented by Lawrence S. Lustberg and Michael R. Noveck of Gibbons PC.
The federal government is represented by Ben Kuruvilla of the Office of the U.S. Attorney for the District of New Jersey.
The case is American Immigration Lawyers Association et al. v. Executive Office for Immigration Review et al., case number 2:20-cv-09748, in the U.S. District Court for the District of New Jersey.
–Additional reporting by Alyssa Aquino and Suzanne Monyak. Editing by Stephen Berg.
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https://www.law360.com/articles/1307316/nj-immigration-attys-can-t-stop-in-person-hearings-for-now
NJ Immigration Attys Can’t Stop In-Person Hearings For Now
By Jeannie O’Sullivan
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Law360 (September 3, 2020, 8:53 PM EDT) — A New Jersey federal judge on Thursday expressed sympathy for attorneys’ concerns about mandated in-person hearings in Newark Immigration Court during the COVID-19 pandemic, but said he needed more information from the government before ruling on their request to halt the in-person requirement.
During a telephone hearing, U.S. District Judge John Michael Vasquez declined to grant a temporary restraining order for the Garden State chapter of the American Immigration Lawyers Association, citing a dearth of information about the Justice Department’s Executive Office of Immigration Review’s July decision to resume in-person proceedings.
The AILA’s emergency request came as part of its lawsuit seeking to reverse the EOIR’s mandate after an attorney and law clerk who attended March hearings later died of the coronavirus. Judge Vasquez said he needed to know more about the EOIR’s plan for social distancing and screening before it ordered the in-person hearings.
“I’m looking for the decision-making process before these instructions were put in place,” Judge Vasquez told the parties. “I want to understand what the EOIR considered, and what the Newark immigration judges considered, before they made these decisions. I’m looking for what they actually took into account.”
The judge instructed the government to furnish the information within two weeks, and said the immigration attorneys would have a week after that to reply.
“In-person can be workable, but there’s a lot more information that I need,” Judge Vasquez said at one point.
Also during the hearing, Judge Vasquez suggested that he was going to reject the government’s argument that the district court can’t hear the matter due to jurisdiction-limiting provisions of the Immigration and Nationality Act.
“It’s somewhat of a shocking argument to hear the DOJ say there’s nothing the attorneys can do to protect themselves if the [Board of Immigration Appeals] decides not to take action,” Judge Vasquez said. “It’s disheartening.”
The AILA’s July 31 complaint targets the EOIR’s July 8 decision to resume in-person hearings for nondetained immigrants on July 13. The group said forcing immigration attorneys to show up to court is needlessly risky with the availability of videoconferencing technology, and claimed that when the EOIR restarted hearings in the Newark court, it did so without “basic information” on how to safely social distance in the building.
The AILA claimed attorneys have been “arbitrarily” denied requests to postpone scheduled hearings, and that an immigration judge has even threatened disciplinary action against two lawyers if they failed to appear for an in-person hearing. On Thursday, AILA attorney Michael R. Noveck of Gibbons PC said attorneys were “risking their lives” by showing up to court, or facing potential discipline if they didn’t.
The government has countered that halting the in-person proceedings would bring the Newark Immigration Court’s caseload, which currently tops 67,500, to a standstill. The EOIR has pointed to the availability in court of video-teleconferencing technology, or VTC, which allows attorneys to join proceedings from an empty courtroom.
The AILA has pushed to use Zoom or Skype in order to avoid having to go to a courtroom at all, but the government has said that those applications lack VTC’s transcription capabilities and security features.
The AILA is represented by Lawrence S. Lustberg and Michael R. Noveck of Gibbons PC.
The government is represented by Ben Kuruvilla of the U.S. Attorney’s Office for the District of New Jersey.
The case is American Immigration Lawyers Association et al. v. Executive Office for Immigration Review, case number 2:20-cv-09748, in the U.S. District Court for the District of New Jersey.
–Additional reporting by Jennifer Doherty and Alyssa Aquino. Editing by Breda Lund.
For a reprint of this article, please contact reprints@law360.com.
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Should representing individuals in the “No Due Process Star Chambers” really be health and life endangering as well as frustrating?⚰️🤮
I agree with Judge Vasquez’s statement quoted in my headline, except for one thing: “shocking” as this behavior by DOJ might be to the Judge, it’s hardly unusual. Unhappily, it’s “business as usual” for hard working, often pro bono or “low bono” attorneys, trying to represent clients in today’s “Beyond FUBAR” Immigration “Courts” (that aren’t “courts” at all). Isn’t it time for Article III Judges throughout the nation to stop “expressing shock, puzzlement, annoyance, and disbelief” and take some effective action to force EOIR into at least minimal compliance with the Due Process Clause of our Constitution?
When, exactly, during the “Gonzo/Billy the Bigot Era” has the BIA EVER intervened in a high profile case on the side of individual rights and Due Process rather than promoting the Stephen Miller White Nationalist, racist, anti-immigrant, anti-due-process agenda?
To be honest, an Article III Judge would only be “surprised” by dishonesty and intransigence from the DOJ, EOIR, and the BIA if he or she hadn’t been paying attention to the daily charade of justice unfolding in “America’s Star Chambers” under the dishonest, unethical, biased, and racism-promoting stewardship of Billy the Bigot! Whatever happened to the role of DOJ lawyers as “officers of the court” and the “duty of candor to tribunals?” Seems to have done a “disappearing act” in the Article IIIs!
I imagine that if Article III Judges were subjected to the same conditions and humiliations as attorneys trying to represent individuals in Immigration Court, serious systemic change would have happened long ago. That’s why we need some “new faces and enlightened minds” from the private sector immigration bar on the Article III bench!
Due Process Forever!
PWS
09-05-20