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LI attorneys call for closing Manhattan immigration court during pandemic

Detained immigrants who face deportation still must appear

Detained immigrants who face deportation still must appear in immigration court at 201 Varick St. in Manhattan.  Credit: Google Maps

Immigration attorneys say the federal government is jeopardizing public health during the COVID-19 outbreak by continuing to hold hearings for defendants who are in lockup.

Long Island attorneys expressed frustration that while other hearings involving immigrants have been postponed until at least May 1, defense attorneys and court staff still have to appear in immigration court at 201 Varick St. in Manhattan for hearings involving detainees who face deportation.

Defendants facing deportations are not required to be at the hearings, lawyers said. But the need for a physical presence in court by defense lawyers and court staff puts them in peril of contracting or spreading coronavirus, attorneys said.

"They are acting like there is no pandemic raging across New York," said George Terezakis, an immigration attorney in Mineola.

Terezakis said while the court is allowing defense and government attorneys to participate in hearings over the telephone, if defense attorneys do so, they must give up their rights of objecting to any documents government attorneys present during the hearing.

The cases involving detained defendants are being heard by judges at the Fort Worth Immigration Adjudication Center, who can appear remotely, according to a March 27 email Terezakis provided from a federal official.

Terezakis said the hearings should be postponed altogether, because defense lawyers aren't able to do their jobs competently, noting it is not possible to meet with their jailed clients or their clients' families during the pandemic. And the piecemeal rules the government is implementing at the court is compromising attorneys' abilities to defend their clients, he said.

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"It's little by little in very dramatic ways, they are eroding the rights of our clients," Terezakis said.

The Executive Office for Immigration Review, or EOIR, manages the procedures of immigration court and is under the U.S. Department of Justice.

In an emailed statement, John Martin, a spokesman for EOIR, said like other federal courts, critical hearings continued to be held and some immigration courts had implemented orders for telephonic appearances.

“Recognizing that cases of detained individuals may implicate unique constitutional concerns and raise particular issues of public safety, personal liberty, and due process, few federal courts have closed completely," the statement said. "Most federal courts have continued to receive filings and to hold critical hearings for detained individuals even as they have postponed other hearings.”

According to the Department of Justice, hearings for all non-detained immigrants "scheduled through May 1, 2020, have been postponed."

Concern for jailed immigrants 

Lake Grove attorney Olivier Roche, whose client in a New Jersey jail fears he has contracted COVID-19, said the government must postpone all immigration hearings and release some detainees.

“If you’ve been accused or convicted of serious violent crimes, obviously, there is a huge question about safety and that should be heavily scrutinized,” Roche said. “But individuals such as my client, who have had no criminal convictions or haven’t had any assaults or violent history, they should be given the opportunity to be evaluated. You have GPS monitoring, you have bond, there are numerous ways this can be accomplished.”

Officials with U.S. Immigration and Customs Enforcement say whether to release defendants in custody is being assessed on a case-by-case basis. Some ICE detainees have already been released from facilities throughout the country as the virus spreads in jails.  

Roche's client Oscar Hernandez, of Copiague, was arrested by ICE on Oct. 28, 2019, and charged with entry without inspection, meaning when he entered the United States he did not check in with an immigration or Border Patrol officer.

“I have nine days with fevers and chills and pain all over my body,” Hernandez, 50, said during a phone call Friday morning from the Essex County Correctional Facility in Newark. “My body hurts."

Hernandez, who has chronic back pain and is on multiple medications, said despite his symptoms, he had not been tested for coronavirus. A doctor didn't see Hernandez until six days after he got sick, relatives said.

An ICE spokesman said by email Friday that two ICE detainees at the correctional facility have tested positive for COVID-19. ICE contracts with the facility and holds on average about 500 inmates there, the spokesman said.

“Due to the unprecedented nature of COVID-19,” cases are being reviewed to determine if some inmates should be temporarily released, ICE officials said in a statement.

“ICE may place individuals in a number of alternatives to detention options. Decisions to release individuals in ICE custody occur every day on a case-by-case basis,” the statement said.

“The agency has instructed its field offices to further assess and consider for release certain individuals deemed to be at greater risk of exposure, consistent with CDC guidelines, reviewing cases of individuals 60 years old and older, as well as those who are pregnant.”

Roche said his client entered the country illegally in 1989 from his native Honduras. About a decade later, Hernandez qualified for Temporary Protective Status, or TPS, after Honduras received that designation from the federal government, Roche said.

TPS is a temporary immigration status that grants work permits and protection from deportations to certain immigrants. Honduras received the designation after a hurricane devastated the country. 

Hernandez's protective status was not renewed after he faced a criminal charge in 2015 for which he was not convicted, Roche said. The records of the case are sealed, and Roche declined to say more about it.

Hernandez’s wife, Ada, 59, said in Spanish: “I miss him. I’m scared because of his health issues. They need to let him come home.”

Hernandez has spent more than half his life on Long Island, his family said.

Long Island is “my whole entire life,” Hernandez said. “My wife. My kids. My whole community.”

Feds must 'step up'

The Association of Deportation Defense Attorneys, which Terezakis co-chairs, wrote a letter to EOIR officials on March 23 arguing for the temporary postponement of hearings in the Manhattan court and the release of detainees with no violent felony convictions.

The mother of a lawyer’s client was diagnosed with COVID-19, which the defense attorneys found out three days after she had been at a court hearing, according to the letter.

“Can you imagine the number of people she came into contact with as the result of the decision to keep this court open? In addition to exposing the attorney and office staff, she traveled from her home on Long Island, on the Long Island Railroad, to Penn Station, from there to the subway and ultimately to Court.”

The National Association of Immigration Judges also has called for temporarily closing immigration courts because of the pandemic. At least two lawsuits have been filed by advocacy groups in U.S. District Courts to try to compel the federal government to postpone in-person immigration hearings.

Jeffrey Chase, an immigration attorney in Bohemia who served as an immigration judge under presidents Bill Clinton, George W. Bush and Barack Obama, said the EOIR must halt the Manhattan immigration court hearings.

“They have to step up and say, ‘We’re in charge. We are shutting this down now,’" he said. “Everybody’s safety comes first and people in positions of leadership have to step up and take responsibility for that.”

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