NAIJ Details Steps for Conducting Immigration Hearings Remotely and Without Endangering Public

Following three weeks of calling for rescheduling proceedings and conducting priority hearings through telework and building a coalition of support that includes government trial attorneys and the immigration lawyers bar, the National Association of Immigration Judges/IFPTE Judicial Council 2 (NAIJ) has further detailed their proposals for closing the courts and ensuring remote hearings for detained cases.

Currently, DOJ’s Executive Office of Immigration Review (EOIR) has postponed non-detained hearings and more recently postponed “Remain-in-Mexico” Migrant Protection Protocol hearings, but continues to hear detained cases and has not adequately outlined how the courts can conduct business without in-person social interactions that typically occur. 

EOIR is allowing a very real risk of COVID-19 exposure and transmission to continue, as the NAIJ document describes:

EOIR’s refusal to close detained courts causes a cascade of social interaction that puts all of us at risk. It requires judges and court staff to continue to travel to courthouses and work shoulder-to-shoulder in hearings. Interpreters continue to fly around the country to attend court sessions. Detainees are moved by security officers within detention facilities and are frequently brought in large groups into courtrooms, or wait in large groups outside courtrooms in order to enter courtrooms individually. Immigration attorneys continue to travel to courthouses and wade through security lines even when telephonic appearances are permitted, pressured both by their internal sense of responsibility to zealously advocate for their clients and also by their paying clients. Families of respondents continue to travel to immigration courthouses to see their loved ones and attempt to serve as witnesses in their hearings. Paper is passed back and forth amongst all the parties appearing in court as legal briefs, court orders, reams of paper evidence, and paper court files get passed from hand to hand every day in our largely paper-based immigration courts.

In the past few weeks, as the global pandemic has reached all parts of the U.S. and COVID-19 testing remains limited, NAIJ members, immigration attorneys, and staff have self-isolated with symptoms or have been confirmed as infected. 

NAIJ’s proposals make clear that the guarantee of due process for people detained in DHS custody - in detention facilities where there is a high risk of infectious disease transmission - is a central concern and can be met through remote hearings and telework.

Also this week, six civil and immigrant rights organizations filed a motion for a temporary restraining order against the DOJ [PDF] to halt proceedings and respondents be granted continuances when requested as the "Defendants’ conduct has turned the immigration court system into a public health hazard, an effect going to the heart of the Court’s jurisdiction in this case and its ability to fashion effective relief on Plaintiffs’ claims.”

Another lawsuit was filed by the American Immigration Lawyers Association, the National Lawyers Guild, and the Immigration Justice Campaign against EOIR and ICE seeking an injunction to suspend in-person hearings and implement "robust remote access alternatives for detained individuals who wish to proceed with their hearings."

For more information, visit NAIJ's website and follow NAIJ's Twitter account.