Postcards from the pandemic – part two

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Hon Mimi Tsankov^[1]
NAIJ, New York
mimi.tsankov@gmail.com

The US immigration courts: still in a health and safety crisis more than five months in

For the past five months, the United States immigration courts have been engaged in a dangerous ritual, with courts opening and then closing in rapid succession as Covid-19 cases materialise and then recede. This process is ad hoc and non-transparent, causing considerable concern throughout the immigration judge corps and the greater legal community. Contact tracing is not standardised and cleaning measures are opaque. These limitations are wreaking havoc on the health and safety of those who preside over hearings, as well as that of the stakeholders that interface with more than 69 courts around the US.

This flawed approach is a direct result of a failure on the part of the US government to take responsibility for the effects that flow from holding hearings during a pandemic. One would think that a judge has the power to ensure a healthy and safe environment in which to hold hearings. Not so in the US, where the Federal Government houses its immigration courts within the Executive Branch’s Department of Justice (DoJ), which is the top federal law enforcement entity in the country. As a result of this structure, immigration judges lack the authority to ensure a safe and healthy work environment, instead relying on DoJ leadership to control every aspect of the health and safety process. This flawed construct has resulted in immigration judges denied access to adequate personal protective equipment, scrambling for information about whether courthouse airflow is properly sanitised, and desperate for technology that would enable remote judicial access to hearings. Many immigration judges find themselves forced to preside even in cities that are being devastated by Covid-19 or face removal from their position. This is so troubling that members of the US Congress’ Senate Judiciary Committee have asked the General Accounting Office to conduct an investigation into allegations of mismanagement at the courts during this unprecedented period. While this is an important step, the process is lengthy and the short-term damage palpable. Lacking the independent judicial authority to address the pandemic’s emergent concerns, many immigration judges find themselves not only powerless but actively stymied because of the structural flaw which is exacerbating the challenges that the coronavirus pandemic presents.

In early March, witnessing the relentless spread of Covid-19 in China, Italy and many other countries, Americans were considering how best to limit its spread. Yet, the nation’s chief immigration judge was engaged in a dangerous power play over who had the authority to display public health posters at courthouses on proper handwashing techniques. Instead of focusing on health and safety and how the courts would be able to continue hearing cases safely in the face of an unfolding and cruel pandemic, immigration judges were being admonished to tear down flyers that recommended basic public safety tips, and were told to ration the precious shared bottles of hand sanitiser. Dockets in immigration courthouses were exploding with 100-case calendar calls as the norm; immigration judges were improvising how to translate social-distancing safety measures to courtrooms bursting with staff, lawyers and respondents.

Now, five months into the pandemic, the DoJ leadership has repeatedly proven itself to be tone-deaf to the demands of this pandemic. Instead of closing down immigration courts due to safety concerns – and incorporating all of the recommendations of the US Centers for Disease Control, many state governors, and experts in global health to limit non-essential travel – the courts’ current operating status reflects that all 69 immigration courts remain open to some degree. Lack of leadership is predominant and confusion reigns in many of these locations, despite the grave danger of holding hearings in the midst of a health crisis. There is no standardised system of reporting when and why specific courts get closed, and why they reopen. The immigration judges often hear about closures at the same time that the public learns of them – through tweets at all hours of the day and night. Some courts are announced as closed for cleaning and then, shortly thereafter, they are deemed free of Covid-19 and ready to address the pending backlog of well over a million cases.

Sadly, many of the immigration judges, court staff, Department of Homeland Security attorneys, respondents, guards and staff at the detention centres, and private Bar attorneys that interface with the court have contracted Covid-19. Yet, those same individuals are being pressured to continue operating the courts. With lack of easy access to Covid-19 testing or rapid results, immigration judges and stakeholders cannot definitively say whether they are sick and are therefore encouraged to work to the brink, even though asymptomatic individuals can be carriers spreading the virus. When proceedings do go forward, they frequently suffer from a shortage of interpreters available to translate proceedings, incomplete files since there are not enough staff members to process the mail and filings, and private Bar attorneys puzzling over how they can ethically meet the needs of their clients in the face of non-essential travel mandates pending in their jurisdictions.

Immigration judges and many stakeholders are desperate for change so that the immigration courts are able to meet the health and safety needs of the communities which they serve. The status quo risks further exacerbating the danger to judges, the court-going public and the greater community. Short-term, band-aid solutions have reached their breaking points: the US immigration courts are demanding systemic change, for not only their own health and safety, but for that of the greater community.

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