On June 25, the U.S. Supreme Court delivered a devastating blow to immigrants to the United States. Siding with the Trump administration, the court ruled that certain asylum seekers could not petition for habeas corpus after their claim for protection was rejected, even if the review process was legally flawed. The Trump administration’s fight to deny immigrants their basic rights is part of a broader attack on immigration, which has manifested in both direct attacks on immigrants’ well-being and a callousness toward the risks immigrants face during a global pandemic.
Over the past several months, there has been significant attention on the systemic problems faced by immigrants in detention and the growing awareness of the role that ongoing deportations are playing in the global spread of the coronavirus. This column focuses on another dangerous failure: how the Department of Justice (DOJ) fell short in its response to the coronavirus pandemic with respect to U.S. immigration courts, particularly in the early stages of the pandemic. The column also offers a prescription for how the DOJ can rectify these shortcomings, particularly in areas of the country where the virus is spreading most rapidly. While this piece details the problems within the immigration court system itself, moving forward, it is equally important that the administration act to protect both those working for the immigration court system and immigrants being held in the U.S. Department of Homeland Security’s custody.
A lack of leadership from the DOJ
The mission of the DOJ’s Executive Office for Immigration Review, which oversees U.S. immigration courts, is to “adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws.” In order to uphold these goals amid the coronavirus pandemic, immigration judges, immigration attorneys, and U.S. Immigration and Customs Enforcement trial attorneys—the prosecutors in removal proceedings—early on requested guidance from the DOJ on how to protect the health of all involved in the court system while still providing individuals with the due process to which they are entitled. Yet the DOJ’s inconsistent guidance put the health of immigrants, attorneys, and judges at risk.
In an early example of this indifference and inconsistency, the acting chief immigration judge at the time asked staff to remove from courtrooms Centers for Disease Control and Prevention (CDC) posters that advertised proper hygiene and precautions to prevent the spread of COVID-19 because they were “not authorized.” After the removal of the posters was publicized by several media outlets, a DOJ spokesman publicly clarified that the posters are permitted in courthouses. The confusion this created within the courts demonstrates a clear lack of basic leadership during this crisis.
This is not the only example of the DOJ showing disregard for the safety of those involved in the immigration court system. While all nondetained hearings and Migrant Protection Protocols hearings have been postponed until July 31, 2020, many courthouses remain open for a variety of functions, including detained and nondetained hearings and filings. This was true in Seattle, Portland, and New York City when those cities were among the areas hardest hit by the virus, and it remains true in Houston, Miami, and Los Angeles today despite the rapid spread of the virus in Texas, Florida, and California. Furthermore, courts previously remained open in states where governors issued stay-at-home orders. Other federal courts took swift action, standing in stark contrast to the immigration court system. For example, both the Federal Circuit Court of Appeals and the Supreme Court have suspended all in-person hearings until further notice in order to protect the health of all involved in those court systems.
The DOJ’s refusal to close immigration courts is especially concerning because immigration judges and attorneys in multiple cities across the country have tested positive for the novel coronavirus, which causes COVID-19. These diagnoses are not surprising, given the fact that it is physically impossible in many immigration courtrooms to maintain the CDC-recommended six feet between individuals. Furthermore, in March, some court employees were asked to bring their own disinfectant wipes to work, and some attorneys were even asked to use their personal vacation days if they presented with symptoms or felt unsafe coming to work. Ironically, some workers who were deemed nonessential and subsequently furloughed during the government shutdown in January 2019 are now being asked to risk their health and the health of those around them by continuing to come to work. This willful disregard for public health paints a clear picture of how little the DOJ has done to help the immigration court system through this time of crisis.
Following the DOJ’s lack of response early in the pandemic, the American Immigration Lawyers Association, the National Association of Immigration Judges, and the Immigration and Customs Enforcement (ICE) Professionals Union joined arms in calling on the DOJ to close immigration courts. Instead of listening to these concerns, the DOJ attempted to limit the right to habeas corpus by asking Congress to grant the department emergency powers, including the authority to detain someone indefinitely. While Congress rejected this request, the DOJ’s priority during this crisis was nonetheless revealed: limiting individuals’ rights instead of protecting public health.
While states are beginning to loosen stay-at-home restrictions, cases of COVID-19 are once again increasing across the country, indicating that this pandemic is far from over. In order to protect the health of those involved in the court system, the DOJ must improve how it responds to the pandemic. While the department will need to reform its efforts to do so in a variety of important ways, in this specific regard, the DOJ must refocus its priorities and enable all those involved with the court system, including immigrants, to adhere to CDC guidelines. For example, while the DOJ could move the immigration courts toward a telework system, the courts were woefully underprepared to implement such an option several months ago. In both California and New York, there were reports of a shortage of laptops throughout the immigration court system. The few laptops that were available were distributed based on seniority rather than the health status of individual employees. In order to make such a system work, adequate technology must be available for all court employees, regardless of seniority.
Conclusion
The Trump administration’s approach to the issues facing immigrants has ranged from indifference to outright hostility. At a minimum, the DOJ bears a responsibility to protect the health of those who interact with the immigration system, which it has failed to do during the COVID-19 pandemic. Judges, immigration attorneys, and ICE trial attorneys have all continued to request guidance and leadership to little avail.
The DOJ—either independently or at the urging of congressional lawmakers—must step up and protect the health of everyone within the immigration court system; if it will not do so independently, Congress must require it. The DOJ should move to a telework system as much as possible—and do so in a way that protects the rights of immigrants. In addition, the Department of Homeland Security should reduce immigration arrests for the time being to focus on significant public safety threats and significantly reduce the number of people held in detention facilities, beginning with those who are particularly vulnerable to serious health consequences from COVID-19 and those who pose no substantial threat to public safety. Taking these steps would reduce the population density in detention centers while also protecting the health of all associated with the immigration court system. While these would be unusual steps for an administration that prides itself on fervent punitive enforcement of immigration laws, the coronavirus pandemic demands that the Trump administration and its DOJ take the rights and health of all people, including immigrants and immigration court employees, into account.
Caroline Reppert is an intern with the Democracy and Government team at the Center for American Progress.
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