By Suzanne Monyak

Law360 (April 19, 2020, 8:02 PM EDT ) In Arizona, migrant children in federal custody are driven to one of several government shelters in the state, where an immigration judge appears before them on a small screen. On the phone is an interpreter, a lawyer for the U.S. Department of Homeland Security and the child's attorney — if they have one.

The child may have been given a protective mask, or may not, and an employee with the government's refugee office could be with them, though that adult would not have the authority to advocate for the child in court and would not be logged into the video session.

At least that's how Lillian Aponte Miranda, manager for children's programs at the Florence Immigrant & Refugee Rights Project, understands it, but she can't be sure.

Aponte Miranda said that she and her colleagues, who provide pro bono legal services to unaccompanied children facing deportation, have been unable to sit with their young clients during immigration court hearings or even observe the hearings visually since late March, when the coronavirus pandemic forced the hearings to be held over video. The attorneys can call in, but they haven't been given the option to dial into the video feed.

"This was an impossible decision, really, on behalf of our program," Aponte Miranda told Law360.

But afraid of spreading the virus to clients, and putting already vulnerable children's health further at risk, the organization decided it wasn't worth exposing their clients by meeting them in person.

According to the U.S. Department of Health and Human Services' Office of Refugee Resettlement, which currently has 2,400 unaccompanied migrant children in its care, 46 have been diagnosed with COVID-19, with 39 of those children still in medical isolation as of Thursday. Additionally, 69 ORR staffers have self-reported positive COVID-19 test results, the agency said.

Yet, as attorneys are asked to abide by local stay-home orders and federal and state courts across the U.S. have suspended jury trials and closed courthouse doors, the U.S. immigration courts, run by the U.S. Department of Justice, have stayed open, closing courts temporarily on a case-by-case basis.

The department has postponed hearings for immigrants who aren't in detention, but kept them going for immigrants held in government custody, and children — who are referred to the ORR when they cross the border without a parent — are no exception.

Some courts, like in Arizona and Texas, have moved to video teleconferencing, or VTC, while others have kept up in-person hearings, though some judges have allowed attorneys to appear by phone. An ORR spokesperson told Law360 that staffers are "instructed to maintain appropriate social distancing whether the call is VTC or in person at the court."

The U.S. has also kept up deportation flights, while threatening visa sanctions against countries that refuse to accept their own deportees from the U.S., which has the most confirmed cases of COVID-19 in the world. According to Kids in Need of Defense, a national organization advocating for the rights of migrant children, roughly 400 migrant children have been deported since mid-March.

Video Hearings During a Pandemic

Even before the new coronavirus ravaged the U.S., immigrant advocates had railed against the use of VTC for adults fighting removal in U.S. immigration courts, questioning whether a hearing interrupted by technical difficulties and communication issues meets the standards for due process.

These concerns are amplified for children, many of whom face language barriers and are too young to communicate clearly and understand the gravity of these proceedings.

The Justice Department had never used VTC for children's hearings until earlier last month, when it rolled out a pilot program in Houston, bringing an immigration judge in Atlanta into a Houston courtroom by video. 

Monica Julian, a staff attorney at the University of California, Davis, School of Law's Immigration Law Clinic, observed the first two days of Houston's video hearings on March 9 and 10, and even then, two weeks before Harris County, Texas, would issue its stay-home order, Julian worried that the hearings didn't square with due process.

Julian said that the children didn't appear to understand that the judge on the screen is the decision maker, and that it was difficult to read the people's facial expressions on a screen, which is key in determining whether someone is credible when describing the persecution they fled.

In one instance, Julian noticed that a child had a large scar where an ear should have been, and texted another observer in Atlanta who told her that the scar was not visible to the judge from the screen.

"It almost feels like it makes all of these cases paper cases," Julian said. "These are real children with real lives and real experiences."

And on top of the due process concerns raised by the use of video technology, attorneys must now represent these children remotely to limit their exposure to the new coronavirus.

In interviews with Law360, attorneys across the U.S. stressed that in-person engagement is key when working with children, particularly those who have fled violence and other horrifying conditions and are wary of trusting adults they don't know.

Aponte Miranda said that these hearings in Arizona, which began March 20 in Phoenix and later in Tucson, have appeared to be a "disorienting and confusing experience" for the children, who at times said they couldn't hear the interpreter.

"It was very difficult to not be able to stand next to our clients at that time," she said. "This is not the way we would normally do our advocacy, nor do we feel that it provides and safeguards due process for our clients."

Just as the Florence Project attorneys have called into their clients' preliminary hearings, Wendy Young, president of Kids in Need of Defense, or KIND, said her organization has been offering know-your-rights presentations over video and "trying to figure out how we can continue to serve kids without being physically present with them."

"You are engaging in the process that could determine the life or death of the child," Young said. "It was a complicated issue to begin with. The pandemic has made it worse."

High Stakes

While attorneys in the Southwest navigate the challenges of videoconferencing, that technology has not spread to juvenile cases in other cities, and many attorneys elsewhere are facing a different dilemma: whether to appear in immigration court during a pandemic.

Christopher J. Truxler, an associate at Seyfarth Shaw LLP in California, found himself in the San Francisco immigration court on March 16, hours before Bay Area residents would be ordered to shelter-in-place.

He is representing pro bono a 17-year-old Guatemalan girl who entered the U.S. alone when she was about 15. She has applied for Special Immigration Juvenile status, a form of immigration relief for migrant children who were abused or neglected by their parents, and that application is pending with the government.

As news outlets reported the upcoming shelter-in-place order that Monday, Truxler called the court to ask to appear by phone, or for the hearing to be rescheduled, but was refused, he said.

"I generally like going to court," he said. "But in this situation, I would have preferred to have not gone with my client."

However, the stakes were high: Foreigners who don't show up to their immigration court hearings can be ordered deported in absentia. So over his family's protests, he drove more than 70 miles from his home in Sacramento to San Francisco for his client's 1:30 p.m. hearing.

The Executive Office for Immigration Review, the DOJ office that oversees the immigration courts, has yet to issue uniform guidance for all of the courts during the pandemic, despite calls to do so from the immigration bar, though some judges have offered flexibility.

Truxler's client's next preliminary hearing is scheduled for May, and the judge has agreed to waive the child's appearance and allow the attorneys to call in. Judges in New York City, the epicenter of the pandemic in the U.S., have also generally waived children's appearances for preliminary hearings and allowed attorneys to call in.

But Truxler said there was no reason for him and his client, as well as the many other children with their hearings that day in March, to crowd into that courtroom court amid the pandemic for a scheduling hearing.

"At this point, I'm very frustrated because we're exposing the attorneys, and as a result, the attorneys' families, to the possibility of infection — and of course all of the kids, and the support staff there to help the kids," he said.

Calls to Close the Courts

As the virus continues to spread across the U.S., immigration advocates have ramped up calls for the Trump administration to halt all in-person hearings.

The American Immigration Lawyers Association and the unions representing immigration judges and DHS trial attorneys have joined together to call for the courts to close amid reports that judges and attorneys who have appeared in immigration courts have been diagnosed with COVID-19.

EOIR has defended keeping the courts open, maintaining that "cases of detained individuals may implicate unique constitutional concerns and raise particular issues of public safety, personal liberty, and due process."

But advocates have pointed out that these detention issues are limited to adults, as migrant children are already required to be released into the least restrictive setting possible under federal anti-trafficking law and the Flores agreements, a 1997 court settlement that established standards of care for foreign children in government custody.

Young said that KIND has been pushing to suspend children's hearings, calling it "mind boggling" that the Justice Department has continued them.

And while remote preliminary hearings present their own challenges, many attorneys said they wouldn't know what to do if the pandemic stretches on long enough that a client has a full merits hearing, where the judge decides whether or not the child should be deported.

Immigration proceedings for children in custody move on a faster track, known as the "rocket docket," than those for children released to family members. Julian said that at the hearings she observed in Houston last month, an asylum merits hearing was scheduled for early May.

One New York attorney who represents children in immigration court told Law360 that the Manhattan court has so far allowed attorneys to call into these scheduling hearings without the children. If the court were to allow the same for a merits hearing, the attorney said she's "not sure it would be possible to do a merits hearing without impinging upon due process rights."

Yet it appears EOIR may be planning to expand the use of videoconferencing during the pandemic. Kathryn Mattingly, a spokesperson for EOIR, said that all immigration courtrooms are equipped with VTC, and "any immigration case may be heard by VTC from any immigration court in the country."

"In response to the ongoing COVID-19 situation, EOIR is maximizing its use of VTC for hearings of detained aliens, including for juvenile hearings," she said in a Friday email to Law360. 

But Young said that the "only option" to protect both children and government personnel is to suspend these hearings. She added her organization has been filing motions to continue, or postpone, their juvenile cases.

Young also questioned whether the DOJ's insistence on continuing these immigration hearings is political.

"I think the coronavirus is giving the administration the perfect cover to achieve what it's been trying to achieve for years: a massive immigration law enforcement initiative," she said.

--Editing by Breda Lund and Michael Watanabe.

For a reprint of this article, please contact reprints@law360.com.