NEW ORLEANS -- A labor union representing the nation’s immigration judges filed a lawsuit Wednesday against the Trump administration, arguing that the government is stifling the judges’ rights to speak publicly on key issues, including the threat of COVID-19 to their lives and to public health.
The judges’ lawsuit is the latest signal of deep distrust between the professionals who work in the nation’s immigration courts and President Donald Trump’s administration. The lawsuit comes as the government moves to reopen immigration courts it had previously closed because of the pandemic.
Ashley Tabbador, a Los Angeles-based immigration judge who is president of the National Association of Immigration Judges, said the government has released little information on how it makes decisions on opening and closing courts because of coronavirus concerns.
“If you’re not going to share information and you’re not going to tell us what standards are being used, and you’re essentially stifling any ability to hold the government accountable, (that) creates frustration and anxiety,” she said. “So people don’t trust, they don’t have trust that the agency is doing the right thing.”
She said the government is reluctant to discuss national standards for reopening courtrooms.
“They keep basically stonewalling us and punting, saying, well, this is something each court and each supervisory judge will have to decide,” she said.
She said bad decisions about reopening courts could lead to infections and deaths. “So this can literally be a life-and-death situation for our community members if we don’t do the right thing to ensure that the health of everyone is placed paramount and that we follow the right protocols.”
An administration spokesperson declined to comment on the lawsuit Wednesday.
About 460 immigration judges work in 67 courts and two adjudication centers throughout the United States and its territories, ranging from border cities such as El Paso to inland cities like Atlanta.
Working without juries, the judges decide which immigrants should stay in the United States and which should be deported. Their current caseload is at a record high: more than 1.1 million deportation cases.
More than half of all immigrants in the courts come from Guatemala, Honduras and El Salvador.
In some cases, immigration court hearings are a matter of life and death as some people face reprisals back home from governments, violent ex-spouses or organized crime. This year, Human Rights Watch released a report documenting 138 cases since 2013 of people being killed in El Salvador after they were deported from the U.S.
The COVID-19 pandemic extended the life-and-death stakes to anyone who visits the courts, including professionals who work there. Judges, defense lawyers and prosecutors who work in the immigration courts joined together on March 15 to issue a statement demanding that the Trump administration temporarily close down all immigration court hearings for safety.
The administration eventually closed “non-detained” courts where immigrants can come and go freely, but it left courts running in detention centers.
The government is now reopening some of the non-detained courts that it shut down. For instance, the New Orleans court opened in a limited capacity on Monday, even as COVID-19 cases in Louisiana surged to more than 60,000. The government is also suspending rules allowing electronic filing of documents, the lawsuit said.
“These changes have already had, and will continue to have, profound implications for public health, but few immigration judges have felt free to speak out,” the judges wrote in the lawsuit, filed in federal court in Alexandria, Virginia.
The suit notes that the few immigration judges who serve as officers in the National Association of Immigration Judges can still speak publicly as union representatives.
“But hundreds more remain silenced,” the lawsuit said.
New policies announced in 2017 and again this January reduced judges’ rights and say they cannot talk in their personal capacities about immigration law or policy or related topics, the lawsuit said. On other topics, immigration judges may speak publicly only with government approval, the judges say. The Knight First Amendment Institute at Columbia University in New York is cooperating with the judges in the lawsuit.
The federal agency that runs the courts is called the Executive Office for Immigration Review, or EOIR. It's an arm of the Department of Justice and ultimately answers to U.S. Attorney General William Barr, a Trump appointee.
In response to inquiries about COVID-19 in the courts, the agency did not make any officials available for an interview.
"EOIR takes the safety, health, and well-being of its employees very seriously," the agency said in a statement, adding that officials follow guidance from various federal entities, including the Centers for Disease Control and Prevention.
The statement said the agency is taking safety precautions such as using telephonic hearings whenever possible. The statement also said that a blanket suspension of all hearings could help keep immigrants stuck in detention because they couldn't ask a judge for release.
"EOIR is committed to ensuring that every detained alien receives his or her day in court,” the government said.
U.S. Sen. Elizabeth Warren, D-Mass., has questioned how the federal government can ensure social distancing is being followed amid the reopenings of the nation’s immigration courts.
“We fear that you are rushing to reopen the courts without a rigorous process or sufficient communication with stakeholders,” she wrote in a June 23 letter to the Executive Office for Immigration Review.
Immigrant sick from coronavirus forced to do telephone court hearing before being sent to hospital, lawyer says
Louisiana emerged this year as the largest hot spot for coronavirus in the South. It is also one of the major centers for immigration detention in the U.S.
Even as hundreds of cases of the new virus appeared in the state's immigration detention centers, immigration courts never stopped in the small towns of Jena and Oakdale, which oversee the cases of more than 5,000 people locked up in immigration detention centers across Louisiana.
After many states enforced quarantine restrictions in March because of the pandemic, judges here still ordered immigrants deported and dozens of deportation flights took off from Alexandria, Louisiana, to other countries.
One case involved a 26-year-old man from Guatemala detained at Richwood Correctional Center, a sprawling 1,129 bed facility in northeast Louisiana. He tested positive for the virus on April 12, said his attorney Veronica Semino.
Semino said he had developed a debilitating cough and had been isolated with one other man in a large dormitory in the facility, which is run by LaSalle Corrections. Meanwhile she had made two attempts to push back a hearing scheduled only four days after he had been tested, to no avail.
The man could barely speak throughout the hearing, which was conducted by telephone, according to Semino.
“He had no lung capacity. During the hearing, they activated the EMS transport and literally within 15 minutes he was in an ambulance on the way to the hospital,” said Semino.
She later learned that her client’s vitals were being monitored throughout the hearing.
“Here is this person who was obviously gravely, ill, had to be taken to the ICU, and all went forward as normal,” she said.
He was hospitalized for close to two weeks and was returned to Richwood Correctional Center, according to Semino. As of Wednesday, ICE has confirmed 65 cases at the facility.
Despite cases of COVID-19 growing to more than 1,200 across Louisiana by March 23, it wasn’t until that week that attorneys received a notice to bring their own gloves, protective eyewear and N-95 masks to meet with clients or attend court proceedings in person, said Phillip Hunter, a Baton Rouge-based immigration attorney who has clients at the LaSalle ICE Processing Center in Jena. That same week, he began seeing detainees escorted into the five courtrooms in the LaSalle courtrooms wearing masks to cover their noses and mouths.
Hunter said that as the outbreak has developed in Louisiana, lawyers are now allowed to file motions by telephone rather than appear in court and some judges have begun letting people with serious health issues out on bond in some cases.
“But it’s not like they’ve stopped detaining people,” he added.
Homero Lopez, an immigration attorney who represents clients at the Oakdale Immigration Court, said that in the early days of the outbreak in Louisiana it wasn’t always clear if attorneys would be allowed to file documents online or participate in hearings via telephone.
“It wasn’t like they were notifying us about this,” he said.
Eventually, some judges started granting motions to continue cases based on COVID-19, he said.
“If we said we couldn’t go to court because of lack of childcare or a health condition, they would grant motions to continue,” said Lopez.
Prosecutors, immigration defense lawyers fear getting COVID-19
During the pandemic, the government has sometimes announced court openings and closures on Twitter. But uncertainty remains for many court officials.
“I’m really scared. I’m like holding on for dear life to what’s going to happen in a few weeks," immigration prosecutor Fanny Behar-Ostrow said in late May. "I am really - like, very afraid if they start reopening our offices and make us physically have to go in. I’m hopeful that they’re going to continue to let us telework. I really don’t think that this pandemic is over, by any means.”
Behar-Ostrow is head of the American Federation of Government Employees Local 511, a labor union representing attorneys who work for ICE, a role that usually means arguing in favor of deportation.
She said she fears for her colleagues because the often-cramped immigration courts are not set up for social distancing of any kind. She said she'd like to see the suspension of all hearings — detained and non-detained — and doesn't understand why the Trump administration seeks to keep the immigration courts going.
“My guess is that it’s political. But it’s a guess. I’d rather not get into this because like I said, I’ve seen a lot of administrations. I’ve seen the pendulum swing both ways and a lot of times things are done because of political reasons,” she said.
The court where she works, in downtown Miami, is now open for detained hearings only.
Memphis immigration attorney Lily Axelrod, who acts as a liaison to the local immigration court, said the administration's willingness to keep the courts going shows an underlying political goal: keep deportation numbers high, even if that means jeopardizing public safety.
“So I think we’ve all seen that this administration does not care about human rights of immigrants or the safety of immigrants, or following the law necessarily with respect to immigrants. But I had no idea the level of contempt or apathy they had toward their own employees," she said.
Trump administration worried about having to release immigrants
In a separate case, the American Immigration Lawyers Association and other groups filed a federal lawsuit on March 30 in Washington, D.C., on behalf of a small group of immigration detainees worried about contracting COVID-19. They asked the court to close both detained and non-detained immigration courts, other than bond hearings.
On April 13, the government responded, saying the lawsuit would "force the release of tens of thousands of aliens despite the laws enacted by Congress."
EOIR director James McHenry argued that if the government stopped detained hearings, the government might have to do a mass release of immigrants to avoid constitutional issues related to indefinite imprisonment. And that, he said, could harm the public, because some immigrants have criminal records or pose national security concerns.
On April 24, lawyers for detainees said some judges were still insisting on dangerous in-person hearings, and that some remote hearings didn't work well, including because some judges failed to call the detainees' attorneys.
On April 28, U.S. District Court Judge Carl Nichols rejected the lawyers' request for a temporary restraining order, concluding the government was already doing enough to respond to the pandemic.
The plaintiffs later withdrew their lawsuit.
ICE spokesman Brian Cox said that to protect against COVID-19, the agency is arresting and detaining far fewer people than usual.
As of June 27, a total of 22,805 people were held in U.S. Immigration and Customs Enforcement custody in the United States, according to an ICE web site.
That’s down from about 38,500 as of March 1, a decrease of 41%. Many of the existing detainees were picked up by the Border Patrol, not through non-border enforcement by ICE, Cox said.
Of those currently detained, 51% had a criminal conviction, another 14% had pending criminal charges, and 35% were held on alleged immigration violations only.
Presidential administration pays judges, pays prosecutors, makes rules
Tabbador, the head of the immigration judges' union, said the pandemic exposed another longstanding problem in the immigration courts: lack of independence.
Unlike the federal judges who hear civil and criminal cases, the immigration judges don't belong to a separate, independent branch of the government. Instead, they're employees of the U.S. Department of Justice and the Trump administration, the same branch of government that pays immigration prosecutors.
The administration is working to decertify the judges’ union, a step that would make it much more difficult for them to speak out and oppose the government.
The Trump administration also helps make the court rules, issuing decisions in recent years that have made it much harder for immigrants to win their cases. One of the biggest came in 2018, when then-U.S. Attorney General Jeff Sessions overturned an earlier decision by the Board of Immigration Appeals and ruled against a woman from El Salvador who said her ex-husband had repeatedly abused her physically, emotionally and sexually both during and after their marriage.
This decision, known as “Matter of A-B,” made it much harder for immigrants to win asylum claims based on domestic violence or gang violence.
Immigration courts represent uncertainty for immigrants
Even before COVID-19, going before an immigration judge was a frightening experience for many immigrants.
Yoselin Alejandra Madriz-Chacon, a 27-year-old now living in Little Rock, Arkansas, appeared briefly in Memphis Immigration Court in February. She told the judge she'd recently gone through a bad breakup and hadn't been able to hire an attorney. The judge gave her a delay of a few weeks.
She was born in Costa Rica and was brought to the U.S. at age six on a tourist visa that later expired. She said she's been unable to adjust her status.
“You never know when people are gonna say you have to go back home,” she said. “I haven’t been there since I was six years old, and it’s terrifying at times, especially when you’re going through a hard time with your personal life and you still have this on top to deal with.”
In June, she said her court case had now been continued until February 2021 because of the coronavirus pandemic. The delay has given her time to earn more money as a painter on building projects, and she hopes to use the income to hire a lawyer and return to Memphis to resolve her case.
In New Orleans, immigration court reopened Monday in a limited capacity. The courtroom is limited to judges, attorneys, their clients and interpreters. Witnesses have been asked to turn in testimony through an affidavit or report telephonically. People presenting COVID-19 symptoms and those who have tested positive are restricted from appearing at the court.
The restrictions could make it more challenging for immigration attorneys to properly represent their clients, according to Emily Trostle, an immigration attorney based in New Orleans.
“I am not comfortable with that,” she said.
Maria Clark reports from New Orleans for The American South. Daniel Connolly writes for The (Memphis) Commercial Appeal.