To slow the spread of COVID-19, the federal government has recommended social distancing. Most of America has hunkered down, but U.S. immigration courts remain open.
After pressure from judges and attorneys, the Department of Justice postponed hearings for migrants who have already been released from custody and closed some courts. But other hearings are still moving forward, for migrants in U.S. immigration detention and asylum seekers in the Trump administration’s “Remain in Mexico” program.
On Monday morning, immigration attorney Taylor Levy woke up before dawn and headed to the Paso del Norte international bridge, which connects El Paso and Ciudad Juárez.
She stood on the Mexican side, “right by where you pay your five pesos to be able to enter to present for your court hearing. I pretty much just look around and try and look for people who look like they might be going to court,” she said.
Levy spotted a father and daughter. The little girl wore a puffy black coat and shoes topped with giant bows the color of rainbow sherbert. Her father carried papers in a plastic bag — a signal to Levy that he was likely on his way to an immigration hearing. She raced over to give advice.
“Basically we’re just letting people know that we think that some of the judges might no-show because of the virus,” Levy said.
She had reason to think judges might not show. In an unprecedented move, the unions representing immigration judges and Immigration and Customs Enforcement prosecutors and the bar that represents immigration lawyers joined forces to call for an emergency shut-down of all immigration courts.
“The Department of Justice’s (DOJ) current response to the COVID-19 pandemic and its spread is insufficient and not premised on transparent scientific information,” the groups said in a joint statement Sunday. “The DOJ is failing to meet its obligations to ensure a safe and healthy environment within our Immigration Courts.”
These groups are usually on opposite sides. But on this, they agree: keeping the courts open puts everyone’s health at risk.
“COVID-19 does not discriminate between a DHS [Department of Homeland Security] trial attorney, private counsel, the respondents or court employees," said Ashley Tabaddor, president of the National Association of Immigration Judges union, on a press call Tuesday. “We are all in it together.”
Tabaddor said there has been no transparency from the federal government.
“There’s no engagement. There’s no discussion with any stakeholder,” she said, adding that she has learned about court closures and postpones through late night tweets from a government account.
“We don’t understand their logic,” Fanny Behar-Ostrow, head of the union representing ICE attorneys, said on the same press call.
“We oppose an edict that forces respondents to choose between attending court on the one hand or protecting themselves against exposure to the coronavirus by not attending court” and risking a deportation order, she said.
Since the call, the government issued some guidelines, like allowing judges to limit the number of people inside the courtroom at a time, but it stopped short of fully closing the courts. Those guidelines came after some courtrooms had already been packed earlier in the week.
On Monday, about 30 asylum seekers arrived at immigration court in downtown El Paso. They wore face masks as they were escorted off government vans.
The courtroom was so crowded reporters were not allowed in, but Imelda Maynard, staff attorney with Catholic Charities of Southern New Mexico, described the scene.
Inside the courtroom, “none of the people in there had masks on,” she said. “The only people that had on gloves were the guards and not even all the guards had on gloves.”
Maynard said it was mostly families inside the courtroom, “most of the children were asleep in their parents’ arms,” and they sat close together on benches. There was no way to follow the government’s own guidelines for social distancing.
“There really isn’t room in that courtroom for the people appearing to sit six feet apart from one another,” Maynard said. “It’s a pretty small courtroom.”
Maynard said there’s no good option for asylum seekers waiting in Mexico. Close the courts and they’re stuck there even longer — often in dangerous conditions. Keep the courts open and they risk catching the virus and bringing it back to the shelters or shared rooms where they’re staying.
“It’s a total catch 22 because on the one hand, you don’t want to prolong their suffering,” she said. “But at the same time, you don’t want them to get sick.
One proposal is to hold telephonic hearings, though Maynard said that presents it’s own challenges. Not all asylum seekers in Mexico have access to phones. Many don’t have addresses, which makes it hard to notify them of any chances in the court system.
“This program is such a cluster, there’s just no good solution,” she said.
The federal government did not respond to a request for additional details on the new guidelines or the decision to keep some courts open.
Attorney Taylor Levy continues to give advice at the international bridge. She would like to see asylum seekers released into the U.S., so they can isolate in safer conditions with relatives.
“The way that our government is choosing to treat people in such vulnerable situations in the midst of a global pandemic is still utterly shocking,” she said.
For now, she provides whatever guidance she can.