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INSIGHT: Immigration Courts Need Independence From the Justice Department

By Lauren Reiff
Bloomberg Law

The Covid-19 crisis and mismanagement of immigration courts by the Justice Department demonstrates why the courts need to be independent. Lauren Reiff, supervising attorney in the New York Legal Assistance Group’s Immigrant Protection Unit, says the health care and safety of the staff, judges, prosecutors, defense attorneys, and immigrants is now at risk.

At the end of January, before the Covid-19 pandemic struck the U.S., Congress held hearings on judicial independence in the immigration court system. The Department of Justice’s response to the Covid-19 pandemic shows that the attorney general should not be trusted to run an agency charged with the neutral adjudication of whether immigrants should be deported or permitted to stay in the U.S.

As the Covid-19 public health crisis sweeps the nation and government officials and public health experts urge everyone to stay home, the attorney general has stubbornly resisted calls to enact measures in immigration courts that would protect the safety of their staff, judges, prosecutors, defense attorneys and immigrants.

New York Immigration Court Closings … Then Reopenings

First, some background. For almost a week after a state of emergency was declared in New York and people around the country were urged to avoid public transit and large gatherings and consider shutdown orders, immigration courts—generally filled with hundreds of people on any given day—continued to demand that parties appear for hearings. Failure to appear could result in deportation.

Only after unprecedented joint pressure to close the courts by defense attorneys, judges, support staff and prosecutors did New York immigration courts finally cancel trials for non-detained immigrants and close their doors to the public.

Inexplicably, on March 24, amidst the New York state lockdown and after business hours, attorneys started to receive information that one immigration court had announced its reopening the following day via Twitter, with a directive that all filings due during the closure would be due that day. This tweet was ultimately deleted and replaced with a tweet giving parties a week to file anything that had been due during closure.

Days later, a different New York City immigration court announced, by changing a few words on a website, that it too would be reopening and filings would be due within days. No notice was provided directly to parties of any of these changes.

Whiplash of Changing Instructions

I am an immigration lawyer at the New York Legal Assistance Group (NYLAG) where we helped 35,900 immigrants last year in cases ranging from citizenship to deportation defense, and I can barely keep up with these rapid changes. How could immigrants without lawyers possibly do so?

Currently, immigration attorneys experience whiplash with sudden rules changes. Practitioners now receive several updates a day on courts first opening, then closing, then opening again. Procedures for filing documents are changed from in person, to mail, to email.

Attorneys are told that we shouldn’t expect confirmation that anything we file was received. We are told that deadlines are mandatory unless the judge, none of whom are currently in court to say anything, says otherwise. It can only be presumed that immigrants without attorneys are not receiving any of this information.

Meanwhile, mail tracking updates for filings made by NYLAG attorneys show that packages could not be delivered to courts because no one was there to accept them.

Collecting evidence to submit to the immigration courts for filing deadlines requires immigrants and their attorneys, including my colleagues at NYLAG, to perform tasks that would violate the New York state PAUSE. Meeting deadlines requires meetings with clients and interpreters, and collection of forms from schools, city agencies, and hospitals. We often enlist health-care professionals to confirm past traumatic events or that deportation would impact the health of our clients or their families. None of this is currently possible.

Risks to Health and Safety

Worse than the immigration court mandate that we perform the impossible, though, is that we are being asked to risk our health and the health of our clients, not to mention public health, to meet deadlines for hearings that will almost certainly be (correctly) postponed. And what non-detained clients are facing pales in comparison to the way detained cases are being handled, with hearings going forward, assigned to judges in different states who don’t even have files, and detained immigrants being kept in solitary confinement to stop new infections.

The immigration courts’ intransigence feels especially malicious, though, while our immigrant clients do the lion’s share of the work that is currently propping up our society. Low wage jobs in the food and service industry tend to be filled by immigrants. It is immigrants who are already risking their lives delivering our food, sanitizing our public spaces, and stocking our grocery shelves. The courts are callously asking them to fight for their right to be in this country, protecting us all, at the same time.

The only possible goal in enforcing filing deadlines is to maximize deportations at the expense of fairness. If immigration courts were independent of the DOJ, judges would not be constrained by the attorney general’s whims, including arbitrary changes in legal interpretation, case completion quotas, and constraints on docket management. Independence would improve efficiency and accuracy.

When this crisis is over and we go back to our lives as normal, it is imperative that Congress reconsider the position of the immigration courts, granting them true neutrality by making them independent.

Originally published in Bloomberg Law on May 15, 2020.

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