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Law Profs: Close Immigration Courts Now!

March 31, 2020 (3 min read)

STEPHEN YALE-LOEHR and JACLYN KELLEY-WIDMER, NEW YORK DAILY NEWS, MAR 31, 2020

"Imagine you’re an immigration lawyer. You have a case scheduled for trial in immigration court, but you’re got a cough, a sore throat and shortness of breath. In normal times, you probably would have gone to court for the trial. In current times, you’re worried. We all know what those symptoms mean.

You call your doctor, who tells you that you’re displaying symptoms consistent with COVID-19. The doctor recommends that you self-quarantine.

Your immigrant client is detained by Immigration and Customs Enforcement (ICE) and counting on you to present their asylum case. You’ve been preparing for months. Your client’s ability to avoid being deported to a country where they face torture or death depends on your performance.

Even though most courts around the country are closed in response to the pandemic, your court date is still on. The Justice Department is keeping its detained immigration courts open, ignoring joint letters from the National Association of Immigration Judges, the American Immigration Lawyers Association and the union representing ICE attorneys calling for a shutdown during the pandemic.

As of your trial date, you haven’t been able to meet with your client in person to prepare for at least two weeks. At the time, ICE wouldn’t let you use your regular attorney visit rooms due to disease risk, so you were stuck waiting in line for the one glass-partitioned attorney room at the detention center. You never got to the front of the line for the room, so you were only able to talk to your client through glass and on the telephone.
 
Then ICE issued a new directive on March 21 requiring all attorneys to bring their own gloves, mask and eye protection for contact visits with clients. Your office doesn’t have any of this gear. Even if you could get protective gear, you wouldn’t take it away from the medical professionals who truly need it.
 
 
Despite all of this, you hope the immigration judge will sympathize with your predicament. You file a motion asking for more time to better represent your client after all of this is over. You cite your own illness, your inability to meet with your client to prepare, and local and national public health warnings.
 

Despite your objections, the immigration judge proceeds with your client’s asylum trial. The judge gives you the choice of abandoning your client to face the fight of his life by himself or proceeding as his attorney via telephone. Reluctantly, you find a folding table to put your file on and try the case from your couch, unable to see or communicate privately with your client. You cannot see anything that is happening in court.

 

All you know is that the immigration judge, ICE prosecutor and interpreter are there.

 

Does this sound like a work-stress induced nightmare? It isn’t. For the last several weeks as the COVID-19 pandemic has unfolded, this has been the day-to-day reality of immigration attorneys helping detained immigrants. The trial from quarantine actually happened to a Legal Aid lawyer in New York. Conditions worsen every day in ways that complicate attorneys’ abilities to represent their clients. There is no end in sight.

This has also been the reality for immigration judges, ICE attorneys and immigration court staff across the United States. So far, the Justice Department has decided that public health and due process matter less than continuing to run Trump’s deportation machine.

These courts are embedded in large detention centers where social distancing and quarantining are impossible, creating a time bomb for the fragile healthcare systems in the rural areas where most detention is located.
 

The Justice Department needs to recognize that public health is our country’s number one priority. It should shut down all detained immigration courts now to protect everyone appearing there, as well as the American public. It is literally a matter of life or death."

Yale-Loehr is professor of immigration practice at Cornell Law School. Kelley-Widmer is an assistant clinical professor of law at Cornell Law School.

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