PLUS, BONUS POLICY ALERTS: Delayed or vanishing Employment Authorization Documents (EADs); USCIS on life support; higher filing fees on the horizon; DACA revived (for now); DHS and DOJ propose a policy to deny asylum and other protection (withholding of removal) to migrants deemed a “danger to the security of the United States” if considered a threat to public health;  and the National Association of Immigration Judges (NAIJ) sues DOJ/EOIR over public speaking restrictions in violation of the 1st and 5th amendments to the Constitution

As of counsel and on behalf of Solow, Isbell & Palladino, LLC (SIP), welcome to the next of an ongoing series of blogs exploring a wide array of issues concerning the nation’s Immigration Courts. In this blog, I will address the inevitable challenges, safety risks, and the likelihood of substantially diminished due process that will result from the reopening of the Philadelphia and other non-detained Immigration Courts during a pandemic that is still spinning out of control.

On June 15, 2020, the American Immigration Lawyers Association (AILA), the American Immigration Council, and several NGOs wrote to EOIR Director James McHenry urging him to reverse the decision to resume non-detained hearings as premature in light of the national public health emergency and the impact such resumption would have on the health and safety of the community as well as the fundamental fairness of the court proceedings. At minimum, a moratorium on in absentia orders was urged along with ongoing and open communications with stakeholders and the public in order to mitigate harm and uphold due process. 

Thereafter, acknowledging the above letter, twelve Democratic senators, led by Sen. Elizabeth Warren, D-Mass, likewise wrote to Director McHenry, questioning him about the wisdom of restarting hearings in light of the increase in COVID-19 cases across the country. The senators noted that EOIR first announced several openings via Twitter and then days later on June 11, 2020, Director McHenry issued a memorandum updating the office’s practices. The Director described the mitigating tools Immigration Judges (IJs) have such as waiving the presence of represented aliens, granting continuances, limiting attendance at hearings, or conducting hearings by telephone or videoconference. The Director further encouraged, if possible, the resolution of cases without hearings by written pleadings, and joint or stipulated motions. 

However, the senators nevertheless expressed concern that EOIR did not provide details concerning how these decisions were made and how or whether the decision-makers had weighed public health and due process considerations. In particular, the senators expressed further concern that EOIR avoid repeating mistakes that had threatened people’s health in the Immigration Courts earlier in the pandemic.

Despite these expressed concerns, through a notice published on July 1, 2020, EOIR continued to announce the resumption of hearings at additional Immigration Courts, including Philadelphia. The notice indicated that all persons in the courts’ public spaces must wear face coverings and “become familiar with CDC information about COVID-19,” providing a link to the reader. Without explaining how this would be enforced, the notice also listed those not permitted to enter EOIR space-those who are symptomatic, have been exposed to the virus within the last 14 days, or have been diagnosed with the virus even if asymptomatic. Lastly, the notice indicated that the option to file by email will end on September 6, 2020. 

Next, on June 29, 2020, Acting Assistant Chief Immigration Judge, Theresa Holmes Simmons signed Standing Orders Relating To Telephonic Appearances At Hearings and Relating To Documents Filed By Electronic Mail. The content of these orders mirror that of Director McHenry in his June 11, 2020 memorandum and other communications from EOIR. Most notable is the continued suggestion that Immigration Judges, in their discretion and upon consent of the respondent, consider conducting telephonic merits hearings in accordance with applicable regulations. 

Immediately thereafter, on July 1, 2020, in an email to stakeholders, John Martin, EOIR’s Regional Public Information Officer for the Northeast, provided further guidance concerning the resumption of non-detained cases at the Philadelphia Immigration Court. He noted that for the foreseeable future, no master calendar hearings would be going forward. On the other hand, all merits cases scheduled for July 6, 2020 or later would be going forward as scheduled unless the parties have been notified otherwise. Additionally, Mr. Martin referred everyone to the June 11, 2020 policy memorandum describing updated court practices as well as reaffirming the end of email filings on September 6, 2020. Most notably, the email stated that “(e)mpty adjacent courtrooms will be used to maintain social distancing with a video ‘bridge’ into each immigration judge’s courtroom.”

So how will all this work in practice and why isn’t EOIR being transparent about the mechanics of implementation? Clearly, if there are currently six IJs (including the newly appointed IJ who will be hearing cases from my former docket after training, probably in early August) and only seven courtrooms, the IJs will not all be hearing two individual cases per day and may not even be in the office on some days. Thus, separate from granted motions to continue, the court already must know (or can easily determine) which cases are going forward over the next couple of months; yet there have not been proactive notices to respondents about the court driven postponements. Thus, until attorneys and Respondents are informed, many of them will be wasting time needlessly preparing for hearings that will not go forward. EOIR needs to regularly project at least two months into the future, determine which IJs will be hearing cases on particular days, and inform the parties in writing and perhaps proactively by phone as well.

As is typical for EOIR, this entire process is being implemented in the shadows without input from or communication/coordination with stakeholders. There is simply no good reason for such lack of transparency, especially in light of the challenges that respondents and their attorneys face in in struggling to prepare for either due process diminished in-person or telephonic individual merits hearings.

Of course, the biggest challenge and the critically difficult choice that attorneys must face is what to do about their hearings if motions to continue are denied and/or the respondents want to go forward. What advice should attorneys give their clients about the potential health risks of appearing in person and testifying with emotion-perhaps for hours- through a mask, especially if utilizing an interpreter and, to make matters worse, via teleconference into an adjacent courtroom? At minimum, how will the respondent, the attorney, the DHS/ICE attorney and the interpreter (all wearing masks) maintain an appropriate social distance, effectively communicate with each other, and effectively communicate with the IJ in the adjacent courtroom? 

With those challenges, how complete and accurate a transcript will be generated? How will the attorneys and the IJ be able police the quality and accuracy of the performance of the interpreter who will not be able to observe the lips and facial expressions of the witness? How will the IJ be able to effectively evaluate the demeanor of the masked respondent?  Will the attorneys, witnesses, and interpreter be permitted to periodically lower their masks to drink water? Will emotionally inevitable crying, drenching the mask, be permitted in Immigration Court as the lives of respondents and their families are on the line (it apparently is not permitted in baseball-see the movie, A League of Our Own-Tom Hanks)?

Alternatively, perhaps the attorney and respondent will conclude that on balance the personal health risks to them and/or their families outweigh the clear benefits of appearing in person. Under applicable regulations, a respondent may waive an in-person individual hearing and opt for one that is conducted telephonically. Most attorneys will strongly urge their clients not to exercise this waiver option and seek to continue their cases. But what if lives are in danger overseas; yet the respondent’s health is compromised, making an in-person hearing problematic? 

As challenging and fundamentally unfair as the masked in-person two courtroom model may be, it’s hard to imagine what a five-person telephonic hearing would look like. First, the masked attorney and respondent are likely to be together in the same room. Then, in most cases there would be the contract interpreter who might very well be masked if he is sitting in the same courtroom as the IJ, who would also be masked since face coverings are required in EOIR space. Then there would be the DHS/ICE attorney who may or may not be masked and would likely also request to appear telephonically. To complicate this approach even further, there might be a telephonic fact or expert witness. 

I would not want to be the IJ, managing such a scene and endeavoring with poise and patience to police the participants’ compliance, particularly the interpreter (for whom English might not be the first language) with court instructions. How would the IJ know if the interpreter is being understood? How are the attorney and respondent interacting? Of course, no one could be shown documents to identify. By default or design, telephonic individual hearings, except in the simplest of cases and/or where the parties have agreed to broadly stipulate to a wide array of facts, are fundamentally unfair at their core.

Speaking of stipulations, a federal regulation, 8 CFR Section 1003.21 has, since its publication on April 6, 1992, authorized pre-hearing conferences, statements, and stipulations, permitting the IJ to order that the parties communicate in good faith and stipulate to the fullest extent possible. But throughout the years, with limited exceptions, legacy INS and DHS have been so hostile to the very existence of this regulation that most IJs don’t even bother to attempt to invoke it. The word “stipulation” has generally been a non-starter in attorney negotiations, particularly in the asylum context; so I very much doubt that in this Trumpian/Stephen Miller assault on the very existence of asylum and legal immigration altogether that DHS/ICE will instruct or permit its attorneys, particularly in the asylum context, the latitude to be reasonable in reaching stipulated compromises rather than opposing virtually everything.

Along that line, it should be noted that the comment period ends on July 15 to respond to the recently proposed draconian, mean spirited, white nationalist inspired asylum regulations. Thus, I am further concerned that DHS/ICE attorneys, as directed from above and through their local Chief Counsels, will be influenced by and perhaps ordered not so subtly to consider the spirit of those regulations which will likely become final, without significant modification and applicable to all pending cases. After all, for example, have any of the three Trump Attorney Generals ever taken anything other than the most restrictive positions possible after soliciting amicus briefs? 

No matter how DOJ/EOIR tries to structure and spin the premature reopening of non-detained Immigration Courts as the covid-19 driven national public health emergency continues to rage, expand, and explode well beyond the “small embers” described by our clueless and deceitful president, one thing is being made clear. Immigration Courts have become mere political tools undeserving of the term “court” which implies fundamental fairness and impartiality.

Moreover, to further insure an even greater decline in due process as envisioned by Congress, we can look to recent appointments to the Board of Immigration Appeals, all of whom, as IJs, had asylum denial rates in excess of 90%. Then, on July 2, 2020, DOJ/EOIR ousted the well-respected Acting Chief Immigration Judge, Christopher A. Santoro, replacing him with Tracy Short who has no judicial experience. However, for this administration, whose Stephen Miller-led goal is to largely end immigration to the United States, Short has the perfect qualifications: he has served as ICE’s chief immigration prosecutor (euphemistically titled “Principal Legal Advisor”); Deputy Chief Counsel in Atlanta, which has been characterized as an “asylum free” zone in light of the near impossibility of being granted asylum in that Immigration Court; and thereafter as a Senior Advisor to the ICE Acting Director. Even veiled notions of judicial neutrality are not to be embraced; they are to be crushed, with office holders as ideological lock step functionaries of a president and close advisors who manifest much more than “authoritarian leanings,” but are the real deal in their frantic aspirations to expand power and control of every aspect of immigration governance. 

In light of all these developments, absent court or electoral intervention to restrain or reverse these actions, the Immigration Courts, supported and encouraged by a politically cowered Board of Immigration Appeals, will neither appear to nor dispense justice impartially. Historically, the overarching reason why so many people from all over the world have wanted to come to the United States, whether on lawfully issued visas or to escape severe mistreatment, poverty, and civil strife, has been the expectation of fair non-politicized treatment under the law. If the current assault on due process continues unabated, with the Immigration Courts weaponized simply to accelerate deportations, then what is left of “justice” in the biblical command, “Justice, Justice, Shalt Thou Pursue?” 

BONUS POLICY ALERTS:

ON JUNE 26, 2020, DHS PUBLISHED A FINAL REGULATION, EFFECTIVE AUGUST 25, 2020, PROHIBITING ASYLUM APPLICANTS FROM APPLYING FOR EMPLOYMENT AUTHORIZATION (EADs) UNTIL 365 DAYS AFTER THE APPLICATION IS FILED WITH USCIS OR THE IMMIGRATION COURT. AMONG PERSONS COMPLETELY DISQUALIFIED ARE THOSE CONVICTED OF VARIOUS CRIMES AND MOST PERSONS WHO ENTER THE U.S. UNLAWFULLY.

USCIS HAS NOTIFIED THOUSANDS OF EMPLOYEES OF AN INTENT TO FURLOUGH THEM FOR UP TO THREE MONTHS DUE TO THE AGENCY’S BUDGET CRISIS CAUSED BY THE DRAMATIC REDUCTION IN FILING FEES AND DUE TO THE TRUMP ADMINISTRATION’S RESTRICTIVE IMMIGRATION POLICIES. AMONG OTHER IMPACTS, THIS WOULD AFFECT THE ISSUANCE. OF EAD EMPLOYMENT CARDS FOR THOSE IN IMMIGRATION COURT PROCEEDINGS. SOME IN CONGRESS HOPE TO PASS A SUPPLEMENTAL FUNDING BILL TO AVOID THIS CALAMITY.

ON JUNE 23, 2020, DOJ’S EOIR SENT THE FINAL VERSION OF ITS PROPOSAL TO DRAMATICALLY INCREASE FEES ON VARIOUS APPLICATIONS INCLUDING APPEALS AND APPLICATIONS FOR CANCELLATION OF REMOVAL.

DACA SAVED (for now)-ON JUNE 18, 2020, THE SUPREME COURT OF THE UNITED STATES HELD 5-4 THAT THE TRUMP ORDERED DECISION BY DHS TO TERMINATE DACA UNDER THE LAW WAS “ARBITRARY AND CAPRICIOUS” AND PROCEDURALLY UNLAWFUL. THEREAFTER, THE TRUMP ADMINISTRATION EXPRESSED AN INTENTION TO AGAIN FILE PAPERWORK IN AN EFFORT TO RESCIND THE DACA PROGRAM. IF INITIATED, IT IS EXPECTED THAT LEGAL CHALLENGES WILL IMMEDIATELY FOLLOW, WITH ITS OUTCOME UNLIKELY PRIOR TO THE ELECTION. BUT IN A BIZARRE YET SOMEWHAT PREDICTABLE TWIST, ON FRIDAY, JULY 10, 2020, THE PRESIDENT REVEALED ONCE AGAIN HIS PATHOLOGICAL NEED TO TRANSFORM ANYTHING THAT COULD BE AND, IN FACT, IS A DEFEAT INTO A VICTORY. IN AN INTERVIEW WITH TELEMUNDO ANCHOR JOSE DIAZ-BALART, PRESIDENT TRUMP SAID HE INTENDS TO SIGN AN EXECUTIVE ORDER WITHIN THE NEXT MONTH THAT WILL INCLUDE A “ROAD TO CITIZENSHIP” FOR RECIPIENTS OF THE DACA PROGRAM. TRUMP BLAMED DEMOCRATS FROM WALKING AWAY FROM A DEAL ON DACA AND SAID THAT THE SUPREME COURT’S DECISION LAST MONTH BLOCKING HIS ADMINISTRATION’S PLAN TO END THE OBAMA-ERA PROGRAM GAVE HIM “TREMENDOUS POWER.” “THE DEAL WAS DONE. DACA IS GOING TO BE JUST FINE. WE’RE PUTTING IT IN. IT’S GOING TO BE JUST FINE. AND I’M GOING TO BE OVER THE NEXT FEW WEEKS, SIGNING AN IMMIGRATION BILL THAT A LOT OF PEOPLE DON’T KNOW ABOUT. YOU HAVE BREAKING NEWS, BUT I’M SIGNING A BIG IMMIGRATION BILL,” TRUMP TOLD DIAZ-BALART.

ON JULY 8, 2020, AS ANNOUNCED BY DHS AND DOJ, THE TRUMP ADMINISTRATION PROPOSED A POLICY THAT WOULD ALLOW OFFICIALS TO QUICKLY TURN AWAY ASYLUM SEEKERS DEEMED A HEALTH RISK AND THUS A “DANGER TO THE SECURITY OF THE UNITED STATES.” THIS PROPOSED REGULATION, PUBLISHED ON JULY 9, 2020 BY USCIS AND EOIR, ONCE FINAL, WOULD ALLOW DHS AND DOJ TO CONSIDER “EMERGENCY  PUBLIC HEALTH CONCERNS BASED ON COMMUNICABLE DISEASE  DUE TO POTENTIAL INTERNATIONAL THREATS FROM THE SPREAD OF PANDEMICS” WHEN DETERMINING WHETHER AN INDIVIDUAL IS INELIGIBLE FOR ASYLUM OR WITHHOLDING OF REMOVAL ON SECURITY GROUNDS. UNDER THIS PROPOSAL, OFFICIALS WOULD CONSIDER THE CONDITIONS IN THE INDIVIDUAL’S HOME COUNTRY AND IN COUNTRIES TRAVELED THROUGH TO EVALUATE THE RISK THAT THE INDIVIDUAL WOULD SPREAD DISEASE IN THE U.S. THIS WOULD ALLOW FOR QUICK DEPORTATION WITHOUT AN IMMIGRATION COURT HEARING. DESPITE DHS AND DOJ ASSERTIONS THAT THESE ARE NECESSARY REFORMS IN LIGHT OF THE COVID-19 CRISIS AND TO AMELIORATE AND EVEN FORESTALL FUTURE PUBLIC HEALTH EMERGENCIES, WIDESPREAD CRITICISM WAS SWIFT AND UNEQUIVOCAL. IN GENERAL, THIS MOVE IS SEEN AS YET ANOTHER PRETEXTUAL POLICY, THIS TIME UTILIZING “PUBLIC HEALTH” GROUNDS, TO END ASYLUM AND OTHER PROTECTIONS UNDER CURRENT LAW. MUCH MORE WILL FOLLOW ABOUT THIS PROPOSAL AS WELL THE PROPOSED ASYLUM REGULATIONS IN FUTURE BLOGS.

ON JULY 1, 2020, THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES (NAIJ) FILED A LAWSUIT IN FEDERAL COURT TO STRIKE DOWN AS AN ILLEGAL VIOLATION OF FREE SPEECH THE TRUMP ADMINISTRATION POLICY THAT FORBIDS IMMIGRATION JUDGES FROM PUBLICLY DISCUSSING, EVEN AS PRIVATE CITIZENS, THEIR VIEWS ON IMMIGRATION LAW AND POLICY.

THROUGH THIS BLOG AND THE ATTORNEYS AT SOLOW, ISBELL & PALLADINO, LLC, WE WILL KEEP CLIENTS, PROSPECTIVE CLIENTS, AND THE COMMUNITY APPRISED OF MAJOR DEVELOPMENTS IMPACTING THE IMMIGRATION COURTS AND JUDGES LOCALLY AND NATIONALLY.

Thank you for taking the time to consider the important issues and information discussed in this submission.

Hon. Charles M. Honeyman (Retired) joined Solow, Isbell & Palladino, LLC as Of Counsel in March 2020, after more than 24 years of service as an Immigration Judge.   Following his retirement, Judge Honeyman has remained active in the field of immigration law through writing, speaking, teaching at CLEs,  and offering strategic litigation counsel, and advising academic scholars conducting research on immigration-related topics. Judge Honeyman is a retired member of the National Association of Immigration Judges (NAIJ), a member of the prestigious Roundtable of Former Immigration Judges, and has rejoined AILA. Judge Honeyman is a member of the Maryland (active) and Pennsylvania bars, and was formerly a member of the New Jersey bar. 

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