Immigration attorney Sarah Plastino never thought she would have to check Twitter to learn whether her court hearing had been canceled.
But that’s become a regular part of her routine during the coronavirus pandemic. Since mid-March, the Executive Office of Immigration Review, the Justice Department agency that oversees the immigration court system, has alternated between closing and reopening courtrooms across the country. Many attorneys say they only learn about closures when EOIR posts a notice on Twitter, a practice repeatedly criticized by the American Immigration Lawyers Association.
Even when courts remain open, to limit personal contact, most procedures are being conducted by video or phone, lending themselves to technical problems that have made it difficult, if not nearly impossible, for lawyers to effectively consult with clients.
Plastino said the hardest part about holding video or teleconference hearings is being unable to consult privately with her clients since the prosecutor and the judge also are on the calls. A request for a brief recess to talk with her client could result in the judge rescheduling the hearing, she said, leading her client to spend several more weeks in detention.
“We shouldn’t be required to make that choice,” said Plastino, a Colorado-based attorney.
“We’re operating in this new world … As defense counsel, we are thinking through what we need to do to actually preserve our client’s rights because of all of these new hurdles.”
Until recently, EOIR had postponed all court procedures except those involving immigrants held in detention. Detainee hearings can range from bond hearings to removal proceedings. This week, EOIR announced that the immigration court in Honolulu could resume non-detainee cases. Certain other courtrooms around the country also may resume such cases on June 29, but all other courts would have to wait until after July 3, at the earliest.
Michael G. Ibrahim, an immigration attorney in Illinois, said holding hearings by phone or video conference doesn’t make sense for certain cases, like asylum requests that can take months to complete.
“In situations where we’re (normally) going to have hours and hours of testimony, to not be able to see the demeanor of your client and not be able to interact with him face-to-face, even by video, is simply unconscionable to me,” Ibrahim said.
Attorneys said EOIR has been inconsistent with teleconferencing rules, which vary by region and jeopardize the due process rights of detainees.
According to the rules for the immigration court in Aurora, Colo., “any party appearing telephonically” waives the right to object to documents presented against them during a hearing — even if they haven’t previewed the evidence.
And a lawyer with a case in New York’s Batavia courtroom recalled how her request to have an expert witness testify during a teleconference hearing was rejected by a judge who said she and the witness needed to be in the same room so the attorney could “verify” the expert’s identity.
On its website, EOIR states that virtual teleconference procedures “allow for granting legal representatives pre-hearing conference time and brief recesses during the hearing so that they may confer with their clients.”
EOIR spokeswoman Kathryn Mattingly said in an email that the agency “has successfully used video teleconferencing (VTC) for many years to provide more timely hearings without compromising due process.”
“The recent outbreak of COVID-19 only heightened the importance of the use of VTC as a way to ensure that aliens — especially detained aliens — receive their day in court in a safe and timely manner consistent with due process,” she said.
Mattingly pushed back on criticism from advocacy groups about a lack of transparency when it comes to decisions about courtroom closures during the pandemic. She said EOIR maintains an operational status webpage “updated in near real-time to provide the public with access to closure information.”
“EOIR has publicly announced court closures for years without complaint, and recent complaints appear motivated by policy disagreements rather than by genuine procedural concerns,” Mattingly said.
Inconsistent phone access
The pandemic has also affected communication outside the courtroom, according to immigration attorneys, advocates and congressional lawmakers.
Officials from Immigration and Customs Enforcement said in a May 4 congressional briefing that the agency promised to give detainees access to free private phone calls — 520 minutes per month. “However, the provision of these free minutes has reportedly been inconsistent across ICE facilities,” said Democratic Reps. Veronica Escobar of Texas and Xochitl Torres Small of New Mexico, whose districts include ICE detention centers.
“Individuals held in ICE custody need meaningful access to working telephones to prepare their legal case with an attorney. Denial of this essential resource puts people in ICE custody at a severe disadvantage and is a violation of due process,” the lawmakers told acting Homeland Security Secretary Chad Wolf in a letter earlier this month.
The postponement of cases in the immigration courts has exacerbated a backlog in the system that has topped one million cases.
The Transactional Records Access Clearinghouse at Syracuse University recently reported that 368,000 immigrants with cases already pending in the system have been adversely affected by the pandemic-related closures. Once scheduling delays for the rest of the cases in the immigration court’s backlog are taken into account, at least 850,000 immigrants will be affected by the shutdown, the research group estimated.
The Justice Department’s Office of Inspector General announced in May it is conducting a limited scope review into how EOIR has handled “certain challenges presented in conducting operations” amid the pandemic.
“The OIG will assess EOIR’s communication to staff, parties to proceedings, and the public about immigration court operations," among other areas, it said on its website.
In the meantime, EOIR should enforce general policies for all courtrooms conducting teleconference hearings to ensure that due process rights for detainees are protected, Ibrahim said.
“This is somebody's life in the United States we're talking about, this isn't a traffic ticket,” he said. “This is somebody's well being and immigration status here. It's a permanent issue. It's not something that can be dealt with, with a simple fine.”