COVID-19 Summary: Five particularly vulnerable immigration detainees and organizations comprised of immigration attorneys filed this complaint on March 30, 2020, challenging EOIR and ICE's failure to implement a uniform policy suspending in-person immigration court appearances and providing for remote communication alternatives. Their emergency motion for a temporary restraining order, seeking the suspension of in-person hearings and the implementation of procedures for remote communications, was denied in late April. On June 2, the plaintiffs voluntarily dismissed the case.
On March 30, 2020, individuals detained in ICE facilities and several organizations whose members include attorneys representing current and prospective clients detained in U.S. Immigration and Customs Enforcement (ICE) facilities filed this complaint in the United States District Court for the District of Columbia. The plaintiffs sued the Executive Office of Immigration Review (EOIR), ICE, and the directors of those agencies in their official capacities. The plaintiffs claimed that in failing to "put in place a uniform policy suspending in-person appearances and enacting protective measures for detained noncitizens who wish to proceed with their immigration hearings," the defendants violated the Immigration and Nationality Act (“INA”), the Administrative Procedures Act (“APA”), the First Amendment, and the Due Process Clause of the Fifth Amendment. They sought injunctive relief ordering the defendants "to suspend in-person immigration hearings for detained individuals and to provide robust remote access alternatives for detained individuals who wish to proceed with their hearings" during the COVID-19 pandemic and to "guarantee secure and reliable remote communication between noncitizens in detention and their legal representatives." The plaintiffs also sought attorneys' fees and costs, personal protective equipment should it be necessary, and, in the alternative, "injunctive relief ordering temporary release for detained immigrants who have inadequate access to alternative means of remote communication with legal representatives or the immigration court." The case was assigned to Judge Carl J. Nichols.
This case was filed in response to the COVID-19 pandemic and the potential for in-person court appearances as a risk factor for further outbreak of the disease. States and countries around the world had taken unprecedented measures to control the spread of the disease (for which there is no vaccine, known treatment, or cure) including shutting down nonessential businesses, restricting public gatherings, and imposing “shelter-in-place” orders. The Centers for Disease Control and Prevention (CDC) warned that courthouses, because of the level of interaction with people and objects that in-person court appearances require, are especially susceptible to the spread of the virus. The CDC recommended social distancing measures and specifically urged “alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission.” As such, federal courts and the Bureau of Prisons have taken measures to implement uniform policies to minimize the health risk. Yet, the plaintiffs asserted that EOIR has not taken the same uniform protective measures and most immigration courts remain open for business, putting the health and safety of attorneys and clients at risk. Moreover, plaintiffs contended that the defendants were still holding in-person immigration hearings, despite the availability of telephonic and video teleconferencing capabilities, and continued to require paper filings to made at physical court locations. Lastly, the plaintiffs' contended that the lack of a uniform policy and unavailability of remote access have made "effective representation by counsel extremely challenging."
The plaintiffs claimed that the defendants' failure to issue and implement uniform, reasonable policies were arbitrary and capricious and interfered with the detained plaintiffs' right to counsel, in violation of the APA and INA. Furthermore, the detained plaintiffs claimed that the defendants' policies deprived noncitizens of their ability to retain counsel and to receive their counsel's legal advice, in violation of the First and Fifth Amendment. The organizational plaintiffs claimed that defendants' policies restricted their ability to communicate with and advise their clients and risked the safety and health of their members, in violation of the First and Fifth Amendments. Lastly, the detained plaintiffs claimed that the defendants' practice of continuing to hold in-person proceedings subjected them to "an unreasonable risk of serious harm and punitive conditions, in violation of their rights under the Due Process Clause."
On April 8, the plaintiffs filed an Emergency Motion for Temporary Restraining Order (TRO) and Request for Hearing, seeking an order that defendants "suspend in-person hearings during the health emergency and require EOIR and ICE to adopt policies and procedures to enable the conduct of remote hearings consistent with Plaintiffs’ constitutional and statutory rights." The plaintiffs argued that they are likely to succeed on the merits of their statutory and constitutional claims, that they are likely to suffer irreparable harm in the absence of a TRO, and that the public interest weighs heavily in favor of a TRO. Defendants asserted that the court does not have jurisdiction to grant this motion. Moreover, defendants argued that plaintiffs cannot succeed on the merits of their APA claim or their right-to-counsel and procedural-due-process claims. Finally, defendants contended that plaintiffs' "speculative claims of future injury do not outweigh the public interest in retaining EOIR's and ICE's flexibility to respond to changing circumstances."
After a hearing on the emergency motion for TRO, Judge Nichols issued a minute order on April 15 requiring that "in the event that Defendants issue any further guidance or otherwise make policy changes relevant to this case, then Defendants shall provide the Court with immediate notice." The order also required that, "in the event that any of the individual Plaintiffs' upcoming hearings are continued, rescheduled, or otherwise changed, then the Party who learns of the change first shall provide the Court with immediate notice."
On April 28, following supplemental briefing and an amicus brief from the National Association of Immigration Judges, Judge Nichols issued a memorandum and order denying the plaintiffs' emergency motion for TRO. First, Judge Nichols concluded that plaintiffs failed to establish that the court has jurisdiction over their claims. Judge Nichols further stated that even if the court had jurisdiction, "Plaintiffs are unlikely to succeed on the merits. Plaintiffs have not pointed to EOIR and ICE actions that are reviewable under the APA, and, perhaps most important, they also have not demonstrated that EOIR’s and ICE’s actions are arbitrary and capricious given the rapidly changing situation relating to the COVID-19 pandemic." Judge Nichols also found that "Plaintiffs have not established that they are 'certain' to suffer an 'imminent' injury, especially when weighed against their chances of prevailing on the merits." Finally, Judge Nichols held that the balance of equities and public interest did not tip in favor of preliminary injunctive relief, as the court was"not certainly not well-positioned to second-guess those health and safety determinations" made by defendants. 2020 WL 2026971.
On June 2, the plaintiffs voluntarily dismissed the case.
Aaron Gurley - 06/20/2020
Chandler Hart-McGonigle - 10/29/2020
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