A coalition of immigration attorneys have filed a lawsuit challenging the Newark EOIR’s mandate that non-detainee hearings be held in person.
Immigration attorneys have filed a lawsuit seeking to prevent a Newark court from holding in-person hearings amidst the continuing coronavirus outbreak.
According to NJ.com, the lawsuit was filed by the New Jersey chapter of the American Immigration Lawyers Association, or NJ-AILA. The complaint alleges that, after a Newark immigration court re-opened in July, attorneys have been unable to attend via videoconferencing.
Immigration courts’ unique in-person requirements are odds with other practices in the state: all other courts, of all different levels, allow for remote attendance in New Jersey.
NJ.com notes that the lawsuit seeks an injunction against mandatory in-person attendance. The AILA also wants Newark to enable a video conferencing option or attorneys who do not wish to attend hearings in person.
“The Newark Immigration Court is no stranger to the devastating effects of COVID-19,” the lawsuit states. “The coronavirus spread through the court before it closed in March, and COVID-19 tragically caused the deaths of both a longtime private immigration attorney and a staffer at the immigration prosecutor’s office.”
While the lawsuit was filed late last week, Newark’s immigration court has purportedly continued to hold non-essential in-person hearings.
On Monday, says NJ.com, “more in-person hearings for non-detained immigrants” resumed.
Interestingly, New Jersey is at odds with its neighbor to the north, New York, which not permitting in-person immigration hearings. Part of the blame, says the AILA, lies with the Executive Office for Immigration Review, a subset of the Department of Justice responsible for immigration courts.
The EOIR, for instance, does have a statute allowing for remote hearings—but for unknown reasons, the EOIR has decided not to apply that statute to non-detainee proceedings.
Despite the EOIR’s inconsistency and a clear use-model in New York, Newark’s immigration judges have allegedly threatened to discipline attorneys who refuse or appear reluctant to physically come to court.
Ironically, one attorney was also threatened with discipline for bringing a sick client to court—one day after a different judge had reprimanded the attorney for not taking her client to a hearing.
“Since March, EOIR in Newark has responded to the COVID-19 pandemic haphazardly, with inconsistent notice to litigants, attorneys, and the public, regarding its continuing operations” the lawsuit claims.
One AILA attorney said it seems the EOIR is forcing people back to work without doing anything to address their outstanding and legitimate safety concerns.
“You are forcing a group of organizations to go back to work without proper protocols, without proper instruction, without proper leadership,” said NJ-AILA member Cesar Estela. “You are setting them up to get sick.”
Estela said attorneys who do not wish to appear in-person are only permitted to participate by phone—but by calling in, they waive the right to challenge evidence.
That, says Estela, is not appropriate for many high-stakes hearings.
“Deportation is not something you want to do over the phone,” he said.
“It’s like: choose between trying to fight your care and stay here, or your health,” Estela said of his clients. “They are always going to go in and try and stay here. Damned if you, damned if you don’t.”