Lawsuit Seeks Halt to Dangerous and Unconstitutional Policies Endangering Immigration Attorneys, Clients, and the Public During the COVID-19 Pandemic

WASHINGTON—In a lawsuit filed today in the U.S. District Court for the District of Columbia, several immigration lawyer groups and individuals with pending immigration cases demanded that the Department of Justice’s Executive Office for Immigration Review and U.S. Immigration and Customs Enforcement take immediate necessary actions to prioritize the health and safety of attorneys and clients at risk in response to the COVID-19 pandemic.

The American Immigration Lawyers Association, the Immigration Justice Campaign— a joint initiative of the American Immigration Council and AILA—represented by the National Immigration Project of the National Lawyers Guild call for the government to take the following measures:

1. Suspend in-person immigration hearings for detained individuals and provide robust remote access alternatives for detained individuals who wish to proceed with their hearings for the duration of the COVID-19 pandemic.
2. Guarantee secure and reliable remote communication between noncitizens in detention and their legal representatives.
3. Provide Personal Protective Equipment for detained noncitizens and legal representatives who need to meet in person in facilities where PPE is required for entry.
4. Alternatively, release detained immigrants who have inadequate access to alternative means of remote communication with legal representatives or with the immigration court.

The global pandemic of COVID-19, caused by the novel coronavirus, has been characterized as the worst the world has seen since 1918. The Centers for Disease Control and Prevention has specifically highlighted in-person court appearances as a risk factor for coronavirus outbreaks. Federal courts and the Bureau of Prisons via the attorney general have taken measures to minimize the health risk. Yet, EOIR, a component of DOJ which oversees immigration courts, has not taken the same protective measures and most immigration courts remain open for business, putting the health and safety of attorneys and clients at risk. The CDC has also highlighted the particularly acute dangers of COVID-19 outbreaks in detention, and more than 3,000 public health experts have called for the release of immigrants from detention. However, ICE has refused to take measures to release or protect immigration detainees from harm and continues to transport them back and forth from courthouses while denying them critical access to counsel during this crisis.

AILA Director of Federal Litigation Jesse Bless stated, “Simply put, EOIR and ICE need to adopt flexible measures to ensure safety for respondents and ensure access of counsel is not denied. Access to counsel is integral to the fundamental constitutional right to due process and recent incoherent and contradictory policies from EOIR and ICE are endangering the health and constitutional rights of countless individuals, including members of their own staff.”

Immigration Justice Campaign Director at the American Immigration Council Karen Siciliano Lucas said, “Through our Immigration Justice Campaign, we have seen what the COVID-19 pandemic means for our volunteer attorneys and their clients in detention. They struggle to communicate with each other and have real concerns about how they can fairly present their immigration cases. The government must immediately close immigration courts and utilize remote opportunities until the coronavirus is under control to protect the health of immigrants, immigration judges, court staff, and surrounding communities alike. Our nation is only as healthy as its people. We must call on our leaders to do all they can to protect and care for everyone—regardless of immigration status.”

“EOIR and ICE have failed to take critical actions necessary to protect the health and safety of detained immigrants and their attorneys, creating disastrous public health conditions in detention centers and at immigration courts,” said Sirine Shebaya, executive director of the National Immigration Project. “Instead of releasing immigrants who do not need to be detained, ICE is choosing to keep them detained and deprive them of access to counsel, while EOIR proceeds with their hearings as though nothing has changed. The agencies must take the necessary measures to provide access to counsel and ensure the availability of robust alternatives for detained immigrants and attorneys who cannot proceed with in-person hearings at this time.”

A copy of the complaint is here.

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For more information, contact the American Immigration Council:

Maria Frausto at [email protected] or 202-507-7526; George Tzamaras, [email protected], 202-507-7649; or Sirine Shebaya, [email protected], 202-656-4788.