Removal Proceedings in the Time of COVID
I sit here writing from my basement/home-office recovering from my own bout of COVID. Just days ago, I was at the Immigration Court, where I appeared with my client and her children. She was placed in the queue for Cancellation of Removal, which was of course a great outcome for her.
Since I tested positive the day after trial, I immediately contacted the Immigration Court to let them know, and the next day I spoke to the ACIJ in charge. They took down information about possible contacts and talked to me about how we would move forward to a day when I could come back to court after the appropriate time/recovery.
The day of trial I was wearing a KN-95 mask, and my client, as well as her children, wore masks both during their meeting with me and when they testified. At our court, they are using televideo and two courtrooms; the IJ, interpreter, and DHS counsel all appear in one court room, while I and my client/witnesses appear in another. Doing this means that even though I was likely positive at the time (although I had no symptoms), it’s less likely anyone was infected. I know of other practitioners who have reported their COVID status to the Court only to be ordered to appear for court a few days later.
Simply put, COVID has changed how our lives and careers “go” and we’ve all had to adapt. It feels like things have changed so much, and that they keep changing. I’m glad that we have resources available and that AILA keeps offering the latest, best information in this era. For instance, the upcoming 2022 AILA Virtual Midwinter Conference has a number of panels specifically addressing COVID and the courts. Sui Chung is leading a panel titled: “Our on Again, Off Again: Strategies to Deal with Recent Challenges in Working with the Court.” They will discuss exactly how to deal with hearings being rescheduled quickly, how some IJs have standing orders and others don’t, the recent change from 30-days to 15-days for filing of documents, and even how to address administrative closure now under Castro-Tum being vacated. We need this kind of expert guidance to help us deal with these issues.
Prior to trial, I spoke to my client about the possibility of her removal proceedings being dismissed, because she has been in the United States since 2000, has four US citizen children, and no criminal history. The negatives are that she would lose her work authorization card (she is the sole provider for those children), and be left in the same limbo status she has been in since 2012 when her removal proceedings began (her case was administratively closed under the Obama administration). However, after discussing it at length, she decided she wanted to proceed to trial, and not seek dismissal. If she had lost, she could have appealed, and even sought prosecutorial discretion (PD) with a final order of removal. However, not taking prosecutorial discretion when offered at trial could negatively impact getting it later on. After discussing the hardships with her children, she made the difficult decision to bravely proceed, and because of that, once a number becomes available, she will become a permanent resident.
Prosecutorial discretion is another area that the upcoming conference will focus on. There’s a panel called “Prosecutorial Discretion Where does it exist?” with four speakers sharing their insights and expertise. They will help guide us on how and when to seek PD, what form that can actually take, and how to be an advocate for the best outcomes for our clients. It is a bit of minefield right now, and I am very much looking forward to their advice on how to navigate it.
It may have felt like COVID stopped everything, but the work of immigration lawyers continues. I look forward to someday seeing all my colleagues in person safely, but in the meantime – I’ll join you in learning virtually!