AILA Practice Alert: Personal Protective Equipment (PPE) Requirements for Attorneys in Detained Courts
(Last updated 3/25/2020)
Am I required to have PPE if I represent a client at a detained immigration court?
AILA’s ICE Liaison Committee has received reports that many jurisdictions are not allowing attorneys to represent clients in-person at detained courts unless attorneys provide and wear their own Personal Protective Equipment (PPE) (e.g., gloves, N-95 masks, and eye protection). Many attorneys cannot obtain and wear the PPE that is now required because of scarcity of equipment, health concerns, local stay-in-place orders, or for other reasons. Those attorneys should consider filing, as appropriate, motions to continue or motions to permit telephonic appearance.
What guidance has ICE released related to PPE requirements at detained immigration courts?
In response to the COVID-19 outbreak, ICE is requiring attorneys to go through screening for in-person contact (without any physical barriers) visits. In addition, contact visits require all legal visitors, including attorneys, to “provide and wear” PPE. ICE indicates that the “overall authority to approve legal visits lies with the Warden or Facility Administrator; however, the facilities have been asked to notify its local Field Office Director as soon as possible of any denied legal visits.”
ICE encourages attorneys appearing in-person for court at ICE facilities, to contact the Executive Office for Immigration Review (EOIR) for any additional requirements.
What guidance has EOIR released related to PPE requirements at detained immigration courts?
Attorneys should consult Appendix R of the EOIR Immigration Court Practice Manual, now being frequently updated, which contains Standing Orders at local courts. As of the morning of March 25, 2020, there are Standing Orders specific to the courts at Adelanto, Arlington, Atlanta, Baltimore, Batavia, Boston, Buffalo, Chicago, Cleveland, Conroe, Dallas, Elizabeth, Florence, Hartford, Kansas City, Las Vegas, New York-Varick, Omaha, Pearsall, San Antonio, Lumpkin, Tacoma, Tucson, and York. Individual judges at various immigration courts have further released Standing Orders.
Some of the standing orders allow for telephonic appearance by attorneys without a motion. Others require notification to the court ahead of time, but by less formal means, including by email.
Many of the standing orders state that “any party appearing telephonically waives the right to object to admissibility of any document offered in Court on the sole basis that they are unable to review the document.” Attorneys should consider objecting on the record to this blanket waiver of a statutory right explicitly provided at INA § 240(b)(4) as fundamentally unfair, particularly where they are precluded from representing the client in person based on the PPE requirements.
How Do I Follow Recent Updates and Communicate About Local PPE Requirements?
ICE’s requirements for legal visits have been updated numerous times over the course of the past week. Practitioners can view the most current information from the agency at ICE Guidance on COVID-19.
EOIR’s website page titled Operational Status During Coronavirus Pandemic can be found at EOIR Operational Status During Coronavirus Pandemic.AILA is hosting information and relevant links at Coronavirus (COVID-19) Resource Center. which will be continuously updated. Attorneys are encouraged to communicate experiences with legal visits, PPE requirements, and detained courts to their chapter’s AILA ICE and EOIR liaisons.