In a country ground to a standstill by the coronavirus pandemic, there is one place normalcy reigns: immigration courts.
Overburdened judges oversee packed proceedings; attorneys shuttle clients and paperwork from room to room, often with interpreters in tow; aspiring legal citizens, or at least residents, follow closely, sitting through hearings famously described as death-penalty cases held in a traffic court.
The courts, along with visa applications, detention hearings and other immigration related bureaucracy, are seemingly the lone part of the federal government still expected to function as if a global pandemic hasn’t upended nearly every facet of American life. But those tasked with keeping the machine running say that they have received little guidance about how to keep the system running in the era of social isolation, and even less protection despite fears that immigration proceedings put some of the most vulnerable people in the country in the impossible position of choosing between their health or their home.
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The Trump administration has refused to allow immigration courts and visa hearings to comply with the same social isolation standards followed by nearly every other civil aspect of government, and has not allowed for previously scheduled hearings to be postponed. The administration has also issued little in the way of guidance for judges, immigration attorneys or immigrants, whose hearings—which often take years to schedule—directly conflict with stay-at-home orders across the county.
“The immigration court’s refusal to adopt policies that protect the health of respondents, lawyers, judges and immigration court staff during the current pandemic forces immigrant families and their lawyers to make an impossible decision: endanger public health or risk being deported,” said Nadia Dahab, senior litigation attorney at Innovation Law Lab, one of half a dozen immigrants-rights groups that on Friday filed an emergency order challenging the operation of immigration courts despite the crisis.
“We are in the middle of a global pandemic, but the immigration court system is continuing to operate as if it’s business as usual,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “The government has turned the court system into a public health hazard.”
A similar dilemma faces individuals who are up against imminent deadlines to apply for or renew their visas. The U.S. Citizenship and Immigration Service has so far declined to extend deadlines for the filing of key documents, putting visa hopefuls in the difficult position of running afoul of shelter-in-place mandates, not to mention risking their own and others’ health, in order to get everything in on time. Failing to do so could do long-term damage for a person’s eligibility for legal residence or put them in another dilemma—figuring out how to get back to another country in a time of unprecedented travel restriction.
“These are not trivial issues,” said León Rodríguez, who ran USCIS during the Obama administration. “They’re not bureaucratic issues. These issues have a lot to do with what a person’s future is, their ability to do business, so people are doing what they need to do. They’re being careful. But right now, people are going to the office where they otherwise wouldn't need to, in an effort to get their fillings done the right way and on time. If we’re in a national emergency… that means it’s time to protect as many people as we can.”
In a Wednesday letter to USCIS acting Director Ken Cuccinelli, Rep. Mark Pocan (D-WI), co-chair of the Congressional Progressive Caucus, urged “immediate action” to extend the deadlines, saying that the failure to do so forces “families to take unnecessary risks to their health and the health of our communities.”
“I would hope now, if ever, this administration would find some compassion and patience to serve the totality of the people of this country,” Pocan said in a statement to The Daily Beast.
The Trump administration has eased up some visa procedures; current biometrics, like a fingerprint scan, are no longer required for applicants on account of health concerns. USCIS is also implementing a 60-day extension for individuals to respond to some items, like requests for additional evidence to support an application. But the agency is still urging applicants to submit information “on time and in accordance with existing instructions” so as to “prevent a lapse in immigration status.”
A spokesperson for USCIS said: “We continue to monitor this evolving pandemic and remain prepared to take necessary steps in order to protect the health and safety of our employees, applicants and the nation.”
But the apparent reluctance to take additional steps—or the failure to provide specific guidance in some cases—stands in stark contrast to swift action from the Trump administration to, for example, push back Tax Day or extend Securities and Exchange Commission filing deadlines. To immigrants and their advocates, the evident lack of concern for those who are put at risk by the lack of uniform social distancing in immigration proceedings is just the latest in a long line of indignities.
“For whatever reason, USCIS has become an outlier,” said Jesse Bless, director of federal litigation for the American Immigration Lawyers Association. “Every federal agency is stopping time, and yet USCIS, who may have the largest population of people they serve, they have said it’s business as usual.”
What little guidance there has been has largely put the onus of properly preventing the spread of the novel coronavirus on immigration judges—already the “sacrificial lamb” of the American immigration system. Last Wednesday, Executive Office of Immigration Review Director James McHenry issued a policy memo saying that it was effectively up to individual judges to make the decision to allow attorneys to appear by phone for proceedings and reduce the number of attendees “on a case-by-case basis,” and allowing—but not requiring—judges to wave the presence of undocumented immigrants during proceedings and to conduct hearings by teleconference.
Immigration proceedings, the National Association of Immigration Judges said in response, are an epidemiologist’s worst nightmare for coronavirus transmission, with judges and court staff working “shoulder-to-shoulder,” interpreters flying around the country to attend different proceedings, and people in immigration detention being moved in large groups with almost zero chance of proper social distance. The analogue nature of the paper-based immigration court system, too, makes the risk of transmission of infectious disease particularly acute.
“EOIR’s refusal to close detained courts causes a cascade of social interaction that puts all of us at risk,” the union said in a statement. “The immigration courts are in the midst of a crisis created by EOIR.”
One member stated that the crisis demonstrates that the office needs “to be gutted and rebuilt from the ashes.”
“I've never witnessed an utter lack of concern for people like I have here,” the judge said. “In my former life, we treated captured Taliban and ISIS with more humanity. Moreover, I’ve never seen worse leadership. A crisis usually brings good and bad to the light. We have nothing but darkness.”
According to immigration advocates, the guidance actually heightens the risk of infection for migrants, as well as their families, attorneys, and the immigration judges presiding over the proceedings.
“McHenry should reinstate previously rescinded guidelines for telephonic appearances and allow all advocates to appear telephonically for court,” said Laura Rivera, director of the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative.
Democratic lawmakers say they are keeping close watch on the situation. “Coronavirus has exposed how the most vulnerable experience the most injustice during a crisis,” Rep. Joaquin Castro (D-TX), chair of the Congressional Hispanic Caucus told The Daily Beast. “Instead of listening to CDC guidelines on social distancing, and state and local stay-at-home orders, several immigration courts remain open. This is not only risking the lives of judges, attorneys, and immigrants, but also their loved ones and entire communities.”
Immigration lawyers describe a similarly difficult and muddled situation for those who are attempting to apply for visas or get them renewed. Thousands of foreign nationals currently in the U.S. will see their legal status expire in coming months, and making those deadlines requires individuals to be in close cooperation with lawyers, as well as workplace H.R. departments, to navigate a complicated and paper-intensive process.
That USCIS has not yet extended key deadlines due to the coronavirus emergency forces a set of difficult choices on applicants and their lawyers. Attorneys, said AILA’s Bless, are in a Catch-22: meeting their clients in person and gathering evidence may help them make a deadline, but it also puts them in violation of shelter-in-place mandates in effect in many states—and risks spreading the virus.
And if applicants, meanwhile, miss deadlines while remaining in the U.S., it can negatively impact their eligibility for legal status down the road. But leaving the country is currently difficult, not to mention dangerous.
“From a practical standpoint, how can individuals protect themselves when they can’t leave the U.S. and they can't file applications and get evidence to their employer or attorney right now?” asked Bless. “Whether you’re an attorney or an individual, the USCIS position is, if nothing else, ramping up and contributing to what is a once in a lifetime stressful situation.”
The agency’s decision to waive the need for new biometrics—and its decision to extend deadlines on some forms of documentation—has been interpreted by advocates as a signal that the administration is aware of the new problems the COVID-19 outbreak is posing for their normal functioning. USCIS has halted all face-to-face engagement with applicants at their offices through at least May 3.
Some watchdogs are anticipating that USCIS will end up leaning on existing exceptions for “natural catastrophes and other extreme situations” to provide wiggle room to migrants on a case-by-case basis, according to a congressional source.
But advocates are baffled that isn’t translating into a broader extension for the many people impacted by the public health emergency. Rodríguez, the former USCIS director, told The Daily Beast that the administration doesn’t “have to do anything magical” to make this happen.
“They have legal tools to do it,” Rodríguez said. “I’d think that a global pandemic is an extraordinary circumstance—probably one of most compelling I can think of.”
