Practice Pointer: EOIR’s Decision to Resume Select Non-Detained Immigration Court Dockets

By AILA’s EOIR/ICE Joint Liaison Committee¹

On June 15, 2020, AILA and its partners wrote a letter to EOIR Director McHenry in response to EOIR’s decision to resume non-detained hearings in select immigration courts during the national public health emergency. The letter explains that EOIR’s decision is premature and will not only affect the health and safety of the community, but also impact the fundamental fairness of immigration court proceedings. EOIR’s Policy Memo 20-13: EOIR Practices Related to the COVID-19 Outbreak fails to adequately account for the significant risks of COVID-19 transmission both inside and outside of the courtroom. Below is a practice pointer from AILA’s EOIR/ICE Joint Liaison Committee on immigration court operations.

What is the current status of current Immigration Court operations and reopening?

• Non-Detained: Unless otherwise noted below, hearings in non-detained cases at all immigration courts remain postponed through, and including, Friday, July 31, 2020.

EOIR’s Date of Proposed Reopening	Location
June 15, 2020	Honolulu
June 29, 2020	Boston, Dallas, Las Vegas, Buffalo, Hartford, and New Orleans
July 6, 2020	Cleveland and Philadelphia
July 13, 2020	Newark, Baltimore, and Detroit
July 20, 2020	Arlington

*Note, some of these courts may have closed after resuming non-detained hearings, please check the Individual Immigration Court Operational Status for more information.

• Detained hearings (including hearings for unaccompanied children in custody) are scheduled to move forward at this time.
• MPP: All MPP hearings are postponed through July 17, 2020. All in-person document services for individuals in MPP are also postponed through July 17, 2020. For the latest information on what individuals with MPP hearings scheduled through July 17 should do to receive a new MPP tear sheet, see AILA’s Practice Alert on the DHS/DOJ Joint Statement Rescheduling MPP Hearings.

What is the status of e-filing of court filings?

• Non-detained courts: Email addresses for court filings will be deactivated 60 days after that court has resumed hearing non-detained cases.
• Detained courts: Email addresses for detained court filings will be deactivated 60 days after an immigration court in the same federal judicial district has resumed non-detained hearings.
• Board of Immigration Appeals and OCAHO: Email addresses for filings will be deactivated within 60 days of the resumption of non-detained hearings by the Arlington Immigration Court.

What is the status of electronic signatures?

• PM 20-11 regarding electronic signatures is unaltered by PM 20-13.
• As of March 31, 2020, EOIR began accepting digital and electronic signatures on all documents, whether those documents are filed by mail, in person, or electronically.
• EOIR will accept electronically-reproduced copies of documents containing digital, electronic, or “wet” signatures.
• EOIR will also continue to accept original documents containing “wet” signatures.

What social distancing and safety procedures were not addressed in PM 20-13?

• EOIR has not provided specific guidelines on how it intends to prevent the transmission of COVID-19 in waiting rooms, crowded courtrooms, long security lines outside of buildings, lines to access elevators, or within elevators.
• EOIR has failed to provide clear information about how the decisions to re-open non-detained courts are being made.
• EOIR has failed to release the safety procedures it will employ if an individual inside the immigration courts, or the buildings in which the courts are located, has tested positive for COVID-19, including how and when sanitation will occur, how the public will be notified of the incident(s), and who will decide whether to re-close and later reopen the court
• EOIR has not indicated whether it will provide masks for parties that appear without them.

What due process concerns does PM 20-13 present?

• Some visitors will not be permitted access to EOIR-controlled space for a variety of reasons, yet EOIR fails to identify who will make decisions regarding the restriction of access or provide safeguards that prevent respondents from being ordered removed in absentia.
• EOIR may engage in widespread expansion and/or continued use of video-teleconference (VTC) for individual merits hearings. VTC or telephonic merits hearings raise inherent due process challenges and should be permitted only in cases where the respondent or their representative requests in writing that their immigration court proceeding move forward. The use of VTC is limited and unique to the situation of the COVID-19 pandemic. In ordinary circumstances, AILA strongly opposes the use of video teleconference technology to conduct in immigration merits hearings, except in matters in which the noncitizen has given consent.
• EOIR outlines a list of policies designed to limit the need for a hearing. Attorneys should review these items carefully to determine whether there is any impact on respondents’ ability to receive a fair hearing and/or adequately preserve arguments for appeal.

Where can I find additional resources?

• See EOIR’s webpage, EOIR's Twitter account @DOJ_EOIR, and EOIR's Facebook page. To receive email notifications directly from EOIR regarding closures, standing orders, and other changes during the national emergency, subscribe via EOIR’s website here.
• AILA recently published a new page, AILA Tracks EOIR’s Historical Operational Status During Coronavirus Pandemic.
  
  • If you would like to submit updates about a particular Immigration Court’s Operational Status, please share information with AILA National using this form.

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¹ Special thanks to EOIR/ICE Joint Liaison Committee Chair Sui Chung for her contribution to this practice pointer.

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Learn More

• AILA Tracks EOIR’s Historical Operational Status During Coronavirus Pandemic
• Featured Issue: Immigration Courts

Go Deeper

• 2020 AILA Virtual Immigration Court Conference – August 20, 2020
• Representing Clients in Immigration Court, 5th Ed.

Cite as AILA Doc. No. 20071337.