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Law360 (March 31, 2020, 5:55 PM EDT ) The U.S. Department of Justice has refused to pause in-person detention hearings amid the COVID-19 pandemic, forcing attorneys to choose between prioritizing their health or their clients' right to counsel, the American Immigration Lawyers Association said in a suit.
AILA, which represents more than 15,000 immigration attorneys, and two other advocacy organizations filed suit late Monday in D.C. federal court, seeking the immediate suspension of in-person detention hearings or the release of all detained migrants who have no means to remotely access legal representation or the immigration court.
"[The DOJ's] decision to continue to require in-person proceedings for detained noncitizens further diminishes detained immigrants' ability to access counsel. They must now also find legal representatives willing to put their lives at risk by going to court," the attorneys said.
The DOJ's Executive Office of Immigration Review late Monday night suspended all hearings for nondetained migrants through May 1, but has allowed in-person detention hearings to continue.
The attorneys also are taking the EOIR to task for its failure to impose a blanket policy allowing migrants to reschedule hearings, or conduct them through remote access technology, saying that without a uniform policy to protect its courts, individual immigration courts have imposed "wildly inconsistent responses."
Of the 69 immigration courts nationwide, only 23 have allowed migrants to make telephone appearances without first filing a motion. And even then, many of those allowances come with restrictions.
"When counsel appropriately request a telephonic hearing, they may be doing it at the cost of effectively representing their clients," the attorneys said.
The attorneys noted that immigration courts don't accept filings by email or fax.
The organizations' suit also targets U.S. Immigrations and Customs Enforcement, alleging that the agency has adopted measures that make it near impossible for attorneys to communicate with clients.
ICE requires legal visitors to bring their own protective gear, which includes gloves, N-95 masks and eye protection, for in-person meetings with clients at detention centers, the attorneys said.
Due to short supplies, government officials have urged individuals against obtaining protective equipment unless medically necessary. With the shortages, ICE's policy functions as a bar against attorney-client meetings, the organizations said.
The legal groups pointed out that most ICE detention facilities don't have viable alternatives for counsel to speak with clients remotely, as some use expensive calling services and monitor the calls.
The groups are also seeking a court order guaranteeing private, reliable remote communication between migrants and legal representatives, as well as an order providing them with the necessary gear when required.
Monday's lawsuit follows weeks of calls by immigration attorneys, judges and ICE officials to suspend in-person detention hearings.
AILA's Director of Federal Litigation Jesse Bless told Law360 that the lawsuit is a "last resort" for the organization.
"We saw every federal agency and court system over the last few weeks adopt the type of flexible measures that we reasonably expected EOIR and ICE to adopt, and they did not," he said.
He said EOIR has the technical ability to move its in-person hearings online, or, alternatively, to release certain detained migrants without a hearing.
"We're not asking for anything different from what has been done in other courts," he said.
A representative for the EOIR did not immediately respond to request for comment Tuesday.
The organizations are represented by Sirine Shebaya, Khaled Alrabe, Amber Qureshi and Cristina Velez of the National Immigration Project of the National Lawyers Guild.
Counsel information for the government wasn't immediately available Tuesday.
The case is National Immigration Project of the National Lawyers Guild et al. v. EOIR et al., case number 1:20-cv-00852, in the U.S. District Court for the District of Columbia.
--Editing by Stephen Berg.
For a reprint of this article, please contact reprints@law360.com.
