An Atlanta attorney who was in immigration court on Monday just self-reported a positive test of COVID-19, and an immigration judge in Denver is out sick with symptoms of the novel coronavirus. But the Trump administration — and, namely, the Executive Office for Immigration Review, which oversees the United States’ 68 immigration courts — is thus far resisting demands to shutter the courtrooms.
“The scientific evidence-based opinion of public health experts can only lead to one conclusion,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges, “and that is to immediately and temporarily close all the immigration courts nationwide.”
In a press call on Tuesday, the group that represents the nation’s immigration judges was joined by public health experts and the union that represents employees of Immigration and Customs Enforcement — a rare display of unity — in making that call for an emergency closure of the courts.
“I’m obviously not an expert in immigration law,” Dr. Ashish Jha, director of the Harvard Global Health Institute said, “but what is very clear from a public health perspective is that any gathering of five or more people, I believe, puts people at substantial risk of further transmission of the disease.”
Without such extreme social distancing, tens if not hundreds of thousands of Americans will likely die in the coming months, Jha noted, adding that most experts believe there are probably 30,000 to 60,000 infected people already. Extreme social distancing is necessary just “to have a shot at dealing with the outbreak.”
According to Johns Hopkins University, there were nearly6,500 confirmed casesof COVID-19 in the US, as of Tuesday night, and at least 114 dead.
“Our primary concern here today is the Department of Justice’s refusal to either close or postpone immigration court in-person hearings during this global health crisis,” said Fanny Behar-Ostrow, president of the American Federation of Government Employees Local 511, which represents workers at Immigration and Customs Enforcement.
“Like most government employees, ICE attorneys are concerned about the risk to their health and the health of their families,” she said. The Trump administration has itself issued guidance discouraging gatherings of 10 or more people and recommended keeping a distance of six feet from one another. “None of this is possible if the immigration courts remain open,” Behar-Ostrow said.
Behar-Ostrow added that, as she was on the press call, she received an email informing her that, in Atlanta, “an attorney who was diagnosed with COVID-19 was apparently in court yesterday,” and that a judge in Colorado is out with what appears to be the same virus. “Every court, everyone, is basically in panic mode.”
As of Tuesday, only a single immigration court, in Seattle, had been closed, reflecting what Trump administration critics believe is a desire to maintain appearances and a focus on the president’s signature issue: restricting immigration. EOIR, an arm of the US Department of Justice, did announce in a late-evening tweet on Sunday that it waspostponing hearingsfor immigrants who are not currently behind bars.
In a statement to Business Insider, EOIR press secretary Kathryn Mattigly said the office “continues to evaluate the information available from public health officials to inform the decisions regarding the operational status of each immigration court.”
Tracie Klinke, an immigration attorney in Murietta, Georgia, was in Atlanta last week for a hearing. In an interview, she described conditions in clear violation of the federal government’s own guidance.
“The judge was triple-booked, and so we actually sat there for two and a half hours, listened to another trial, and then the judge dismissed us to reschedule. So we were there for nothing,” Klinke told Business Insider. There were “probably about 10 people in the courtroom, but of course we had to deal with security and those lines can be pretty long, about 15 people deep,” she said.
“There’s no hand sanitizer out for public use and people are there, you know, for a court hearing; regardless of what their health might be, they were going to be there,” she continued.
There are also the confines of an elevator to deal with — in Atlanta, the immigration court is on the 26th floor — and a waiting room where “there were probably 30 people in a small room,” Klinke said.
“We weren’t crammed in like sardines,” she continued, “but we were definitely cozy.” And definitely not six feet apart.
The global pandemic has put immigrant rights advocates in an unusual position: agreeing with ICE.
“This has been a real struggle,” Denise Bell, a researcher focusing on refugee and migrant rights at Amnesty International, told Business Insider. “None of us anticipated being here because what we’ve always asked for is more funding; more judges; more resources; more lawyers to help people pursuing their claims,” said Bell, who previously worked as an attorney advisor on the New York immigration court. “Yet we’re in a public health crisis and pursuing that claim could endanger that person and everyone around them. And we have to be mindful. We’re in a position we never thought we’d be in.”
While postponing hearings for detained immigrants may not be ideal, she added, it’s a least-bad option in a terrible situation — and the demand is coupled with a call for releasing those who lack serious felony convictions, lest the seemingly inevitable happen: COVID-19 begins to spread among the incarcerated.