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U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:20-cv-00852-CJN

CLOSED,TYPE-L

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD et al v. EXECUTIVE OFFICE OF IMMIGRATION REVIEW et al Assigned to: Judge Carl J. Nichols Cause: 05:551 Administrative Procedure Act

Date Filed: 03/30/2020 Date Terminated: 06/10/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff
NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD on behalf of its members

represented by Elsbeth Jane Bennett CLEARY GOTTLIEB STEEN & HAMILTON LLP 2112 Pennsylvania Avenue, NW Suite 1000 Washington, DC 20037 (202) 974-1911 Fax: (202) 974-1999 Email: ebennett@cgsh.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew David Slater CLEARY GOTTLIEB STEEN & HAMILTON LLP 2112 Pennsylvania Avenue, NW Suite 1000 Washington, DC 20037 (202) 974-1930 Fax: (202) 974-1999 Email: mslater@cgsh.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amber Qureshi NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW Suite 200 Washington, DC 20007 202-470-2082 Email: amber@nipnlg.org PRO HAC VICE ATTORNEY TO BE NOTICED

Cristina Velez

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NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW Suite 200 Washington, DC 20007 347-943-1164 Email: cristina@nipnlg.org PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Kennedy Park CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, NY 10006 212-225-2000 Email: jkpark@cgsh.com PRO HAC VICE ATTORNEY TO BE NOTICED

Khaled Alrabe NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW Suite 200 Washington, DC 20007 510-679-3994 Email: khaled@nipnlg.org PRO HAC VICE ATTORNEY TO BE NOTICED

Polina Bensman CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, NY 10006 212-225-2000 Email: lbensman@cgsh.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff AMERICAN IMMIGRATION LAWYERS ASSOCIATION
https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?557019173980414-L_1_0-1

Sirine Shebaya NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW Suite 200 Washington, DC 20007 202-656-4788 Email: sirine@nipnlg.org ATTORNEY TO BE NOTICED
represented by Elsbeth Jane Bennett (See above for address)
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on behalf of its members

District of Columbia live database
LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew David Slater (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amber Qureshi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cristina Velez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Kennedy Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Polina Bensman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
IMMIGRATION JUSTICE CAMPAIGN on behalf of its members

Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
represented by Elsbeth Jane Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew David Slater (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amber Qureshi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cristina Velez

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Plaintiff ENRIQUE NAPOLES VAILLANT

District of Columbia live database
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Kennedy Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Polina Bensman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
represented by Elsbeth Jane Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew David Slater (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amber Qureshi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cristina Velez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Kennedy Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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District of Columbia live database
Polina Bensman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff ERNESTO RODRIGUEZ CEDENO

Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
represented by Elsbeth Jane Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew David Slater (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amber Qureshi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cristina Velez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Kennedy Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Polina Bensman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

ARLETY ALIAGA-COBAS

represented by Elsbeth Jane Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?557019173980414-L_1_0-1

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District of Columbia live database

Matthew David Slater (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amber Qureshi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cristina Velez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Kennedy Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Polina Bensman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff REYNALDO GUERRERO-CORNEJO

Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
represented by Elsbeth Jane Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew David Slater (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amber Qureshi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?557019173980414-L_1_0-1

Cristina Velez (See above for address) PRO HAC VICE
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District of Columbia live database
ATTORNEY TO BE NOTICED

Jennifer Kennedy Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Polina Bensman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
ROBERTO FAUSTO VELASQUE QUIALA

Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED
represented by Elsbeth Jane Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew David Slater (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amber Qureshi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cristina Velez (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer Kennedy Park (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Khaled Alrabe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?557019173980414-L_1_0-1

Polina Bensman (See above for address)
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District of Columbia live database
PRO HAC VICE ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) ATTORNEY TO BE NOTICED

V. Defendant EXECUTIVE OFFICE OF IMMIGRATION REVIEW
Defendant

represented by Alexander James Halaska U.S. DEPARTMENT OF JUSTICE Ofﬁce of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 307-8704 Email: Alexander.J.Halaska@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Christopher Ward U.S. DEPARTMENT OF JUSTICE Civil Division P.O. Box 868 Washington, DC 20044 (202) 616-9121 Email: brian.c.ward@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erez Reuveni U.S. DEPARTMENT OF JUSTICE Civil Division P.O. Box 868 Ben Franklin Station Washington, DC 20044 (202) 307-4293 Fax: (202) 305-7000 Email: erez.r.reuveni@usdoj.gov ATTORNEY TO BE NOTICED
William Bateman , III U.S. DEPARTMENT OF JUSTICE Immigration Litigation Ben Franklin Station P.O. Box 868 Washington, DC 20044 (202) 532-4067 Fax: (202) 305-7000 Email: william.c.bateman@usdoj.gov ATTORNEY TO BE NOTICED

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IMMIGRATION AND CUSTOMS ENFORCEMENT
Defendant JAMES MCHENRY Director of the Executive Ofﬁce for Immigration Review, in his ofﬁcial capacity
Defendant MATTHEW T. ALBENCE Acting Director for U.S. Immigration and Customs Enforcement, in his ofﬁcial capacity

District of Columbia live database
represented by Alexander James Halaska (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Christopher Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erez Reuveni (See above for address) ATTORNEY TO BE NOTICED
William Bateman , III (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander James Halaska (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Christopher Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erez Reuveni (See above for address) ATTORNEY TO BE NOTICED
William Bateman , III (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander James Halaska (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian Christopher Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erez Reuveni (See above for address) ATTORNEY TO BE NOTICED
William Bateman , III

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Amicus FORMER FEDERAL IMMIGRATION JUDGES also known as FORMER IMMIGRATION JUDGES
Amicus MEMBERS OF BOARD OF IMMIGRATION APPEALS
Amicus NATIONAL ASSOCIATION OF IMMIGRATION JUDGES

District of Columbia live database
(See above for address) ATTORNEY TO BE NOTICED
represented by John Arak Freedman ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave, NW Washington, DC 20001 (202) 942-5316 Fax: (202) 942-5999 Email: john.freedman@arnoldporter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Arak Freedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ashley Charles Parrish KING & SPALDING LLP 1700 Pennsylvania Avenue, NW Suite 200 Washington, DC 20006 (202) 626-2627 Fax: (202) 626-3737 Email: aparrish@kslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/30/2020
03/31/2020 03/31/2020 03/31/2020 04/02/2020

# Docket Text
1 COMPLAINT for Injunctive and Declaratory Relief against All Defendants ( Filing fee $ 400 receipt number ADCDC-6971307) ﬁled by ARLETY ALIAGA-COBAS, IMMIGRATION JUSTICE CAMPAIGN, REYNALDO GUERRERO-CORNEJO, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, ROBERTO FAUSTO VELASQUE QUIALA, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, ENRIQUE NAPOLES VAILLANT, ERNESTO RODRIGUEZ CEDENO. (Attachments: # 1 Civil Cover Sheet, # 2 Summons) (Shebaya, Sirine) (Entered: 03/30/2020)
Case Assigned to Judge Carl J. Nichols. (adh, ) (Entered: 03/31/2020)
2 SUMMONS (3) Issued Electronically as to MATTHEW T. ALBENCE, EXECUTIVE OFFICE OF IMMIGRATION REVIEW, IMMIGRATION AND CUSTOMS ENFORCEMENT. (Attachment: # 1 Notice and Consent)(adh, ) (Entered: 03/31/2020)
3 STANDING ORDER. Signed by Judge Carl J. Nichols on March 31, 2020. (lccjn1) (Entered: 03/31/2020)
4 REQUEST FOR SUMMONS TO ISSUE re 1 Complaint, ﬁled by ARLETY

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04/03/2020 04/08/2020 04/08/2020
04/08/2020 04/08/2020 04/08/2020
04/08/2020 04/08/2020

District of Columbia live database
ALIAGA-COBAS, IMMIGRATION JUSTICE CAMPAIGN, REYNALDO GUERRERO-CORNEJO, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, ROBERTO FAUSTO VELASQUE QUIALA, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, ENRIQUE NAPOLES VAILLANT, ERNESTO RODRIGUEZ CEDENO. Related document: 1 Complaint, ﬁled by ARLETY ALIAGA-COBAS, IMMIGRATION JUSTICE CAMPAIGN, ENRIQUE NAPOLES VAILLANT, REYNALDO GUERRERO-CORNEJO, ERNESTO RODRIGUEZ CEDENO, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, ROBERTO FAUSTO VELASQUE QUIALA.(Shebaya, Sirine) (Entered: 04/02/2020)
5 SUMMONS (1) Issued Electronically as to JAMES MCHENRY. (eg) (Entered: 04/03/2020)
6 NOTICE of Appearance by Matthew David Slater on behalf of All Plaintiffs (Slater, Matthew) (Entered: 04/08/2020)
7 Emergency MOTION for Temporary Restraining Order , MOTION for Hearing by ARLETY ALIAGA-COBAS, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, ERNESTO RODRIGUEZ CEDENO, REYNALDO GUERREROCORNEJO, IMMIGRATION JUSTICE CAMPAIGN, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, ROBERTO FAUSTO VELASQUE QUIALA, ENRIQUE NAPOLES VAILLANT (Attachments: # 1 Declaration of Matthew D. Slater, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Text of Proposed Scheduling Order, # 37 Text of Proposed Order)(Slater, Matthew) (Entered: 04/08/2020)
8 NOTICE of Appearance by Brian Christopher Ward on behalf of All Defendants (Ward, Brian) (Entered: 04/08/2020)
9 NOTICE of Appearance by Alexander James Halaska on behalf of All Defendants (Halaska, Alexander) (Entered: 04/08/2020)
MINUTE ORDER. In light of Plaintiffs' 7 Emergency Motion for Temporary Restraining Order and Request for Hearing, it is hereby ORDERED that (1) on or before April 13, 2020, Defendants shall ﬁle their Opposition to Plaintiffs' 7 Emergency Motion; and (2) on or before April 14, 2020, Plaintiffs shall ﬁle their Reply in support of their 7 Emergency Motion. It is further ORDERED that a hearing on the Motion is scheduled for April 15, 2020, at 2 PM. The Courtroom Deputy will supply further information about the logistics for the April 15 hearing. It is so ORDERED. Signed by Judge Carl J. Nichols on April 8, 2020. (lccjn1) (Entered: 04/08/2020)
10 NOTICE of Appearance by William Bateman, III on behalf of All Defendants (Bateman, William) (Entered: 04/08/2020)
Set/Reset Deadlines/Hearings: Defendant's response due by 4/13/2020. Plaintiff's reply due by 4/14/2020. Motion Hearing set for 4/15/2020 at 2:00 PM before Judge Carl J. Nichols. (zcdw) (Entered: 04/09/2020)

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04/09/2020

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11 Unopposed MOTION for Leave to File Amicus Brief by Former Immigration Judges (Attachments: # 1 Exhibit Proposed Amicus Brief, # 2 Text of Proposed Order) (Freedman, John) (Entered: 04/09/2020)

04/10/2020

12 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Lina Bensman, Filing fee $ 100, receipt number ADCDC-7010226. Fee Status: Fee Paid. by ARLETY ALIAGACOBAS, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, ERNESTO RODRIGUEZ CEDENO, REYNALDO GUERRERO-CORNEJO, IMMIGRATION JUSTICE CAMPAIGN, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, ROBERTO FAUSTO VELASQUE QUIALA, ENRIQUE NAPOLES VAILLANT (Attachments: # 1 Declaration of Lina Bensman in Support, # 2 Text of Proposed Order)(Slater, Matthew) (Entered: 04/10/2020)

04/10/2020

13 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Jennifer Kennedy Park, Filing fee $ 100, receipt number ADCDC-7010478. Fee Status: Fee Paid. by ARLETY ALIAGA-COBAS, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, ERNESTO RODRIGUEZ CEDENO, REYNALDO GUERRERO-CORNEJO, IMMIGRATION JUSTICE CAMPAIGN, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, ROBERTO FAUSTO VELASQUE QUIALA, ENRIQUE NAPOLES VAILLANT (Attachments: # 1 Declaration of Jennifer Kennedy Park in Support, # 2 Text of Proposed Order)(Slater, Matthew) (Entered: 04/10/2020)

04/10/2020

MINUTE ORDER. After review of Proposed Amici's 11 Motion of Former Federal Immigration Judges and Members of Board of Immigration Appeals for Leave to File Amicus Curiae Brief in Support of Plaintiffs, it is hereby ORDERED that the Motion is GRANTED and that the submitted amicus curiae brief, ECF No. 11-1, shall be considered part of the record in this matter. Signed by Judge Carl J. Nichols on April 10, 2020. (lccjn1) (Entered: 04/10/2020)

04/10/2020 20 AMICUS BRIEF by FORMER FEDERAL IMMIGRATION JUDGES, MEMBERS OF BOARD OF IMMIGRATION APPEALS. (eg) (Entered: 04/14/2020)

04/12/2020

14 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Khaled Alrabe, Filing fee $ 100, receipt number ADCDC-7013409. Fee Status: Fee Paid. by ARLETY ALIAGA-COBAS, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, ERNESTO RODRIGUEZ CEDENO, REYNALDO GUERRERO-CORNEJO, IMMIGRATION JUSTICE CAMPAIGN, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, ROBERTO FAUSTO VELASQUE QUIALA, ENRIQUE NAPOLES VAILLANT (Attachments: # 1 Exhibit Ex 1 Declaration of Khaled Alrabe, # 2 Text of Proposed Order Ex 2 Proposed Order)(Shebaya, Sirine) (Entered: 04/12/2020)

04/12/2020

15 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Amber Qureshi, Filing fee $ 100, receipt number ADCDC-7013410. Fee Status: Fee Paid. by ARLETY ALIAGA-COBAS, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, ERNESTO RODRIGUEZ CEDENO, REYNALDO GUERRERO-CORNEJO, IMMIGRATION JUSTICE CAMPAIGN, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, ROBERTO FAUSTO VELASQUE QUIALA, ENRIQUE NAPOLES VAILLANT (Attachments: # 1 Exhibit Ex 1 - Declaration of Amber Qureshi, # 2 Text of Proposed Order Ex 2 - Proposed Order)(Shebaya, Sirine) (Entered: 04/12/2020)

04/12/2020

16 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Cristina Velez, Filing fee $ 100, receipt number ADCDC-7013411. Fee Status: Fee Paid. by ARLETY ALIAGACOBAS, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, ERNESTO RODRIGUEZ CEDENO, REYNALDO GUERRERO-CORNEJO, IMMIGRATION JUSTICE CAMPAIGN, NATIONAL IMMIGRATION PROJECT OF THE

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NATIONAL LAWYERS GUILD, ROBERTO FAUSTO VELASQUE QUIALA, ENRIQUE NAPOLES VAILLANT (Attachments: # 1 Exhibit Ex 1 - Declaration of Cristina Velez, # 2 Text of Proposed Order Ex 2 - Proposed Order)(Shebaya, Sirine) (Entered: 04/12/2020)

04/13/2020

MINUTE ORDER. After review of Plaintiffs' 12 Motion for Admission Pro Hac Vice, it is hereby ORDERED that Attorney Lina Bensman is admitted pro hac vice to appear in this matter. Counsel should register for e-ﬁling via PACER and ﬁle a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Carl J. Nichols on April 13, 2020. (lccjn1) (Entered: 04/13/2020)

04/13/2020

MINUTE ORDER. After review of Plaintiffs' 13 Motion for Admission Pro Hac Vice, it is hereby ORDERED that Attorney Jennifer Kennedy Park is admitted pro hac vice to appear in this matter. Counsel should register for e-ﬁling via PACER and ﬁle a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Carl J. Nichols on April 13, 2020. (lccjn1) (Entered: 04/13/2020)

04/13/2020

MINUTE ORDER. After review of Plaintiffs' 14 Motion for Leave to Appear Pro Hac Vice, it is hereby ORDERED that Attorney Khaled Alrabe is admitted pro hac vice to appear in this matter. Counsel should register for e-ﬁling via PACER and ﬁle a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Carl J. Nichols on April 13, 2020. (lccjn1) (Entered: 04/13/2020)

04/13/2020

MINUTE ORDER. After review of Plaintiffs' 16 Motion for Leave to Appear Pro Hac Vice, it is hereby ORDERED that Attorney Cristina Velez is admitted pro hac vice to appear in this matter. Counsel should register for e-ﬁling via PACER and ﬁle a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Carl J. Nichols on April 13, 2020. (lccjn1) (Entered: 04/13/2020)

04/13/2020

17 NOTICE of Appearance by Khaled Alrabe on behalf of All Plaintiffs (Alrabe, Khaled) (Main Document 17 replaced on 4/14/2020) (zeg). (Entered: 04/13/2020)

04/13/2020

MINUTE ORDER. After review of Plaintiffs' 15 Motion for Leave to Appear Pro Hac Vice, it is hereby ORDERED that Attorney Amber Qureshi is admitted pro hac vice to appear in this matter. Counsel may not e-ﬁle via PACER pursuant to LCvR 83.2(c) (2). Signed by Judge Carl J. Nichols on April 13, 2020. (lccjn1) (Entered: 04/13/2020)

04/13/2020

18 NOTICE of Appearance by Amber Qureshi on behalf of All Plaintiffs (Qureshi, Amber) (Main Document 18 replaced on 4/14/2020) (zeg). (Entered: 04/13/2020)

04/13/2020 19

Memorandum in opposition to re 7 Emergency MOTION for Temporary Restraining Order MOTION for Hearing ﬁled by MATTHEW T. ALBENCE, EXECUTIVE OFFICE OF IMMIGRATION REVIEW, IMMIGRATION AND CUSTOMS ENFORCEMENT, JAMES MCHENRY. (Attachments: # 1 Declaration of Alexander J. Halaska, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Text of Proposed Order)(Halaska, Alexander) (Entered: 04/13/2020)

04/14/2020

21 NOTICE of Appearance by Erez Reuveni on behalf of All Defendants (Reuveni, Erez) (Entered: 04/14/2020)

04/14/2020

22 REPLY to opposition to motion re 7 Emergency MOTION for Temporary Restraining Order MOTION for Hearing ﬁled by ARLETY ALIAGA-COBAS, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, ERNESTO RODRIGUEZ CEDENO, REYNALDO GUERRERO-CORNEJO, IMMIGRATION JUSTICE CAMPAIGN, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, ROBERTO FAUSTO VELASQUE QUIALA, ENRIQUE

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04/15/2020
04/15/2020 04/15/2020 04/15/2020 04/15/2020
04/15/2020
04/15/2020 04/16/2020

District of Columbia live database
NAPOLES VAILLANT. (Attachments: # 1 Declaration of Matthew D. Slater, # 2 Exhibit 35, # 3 Exhibit 36, # 4 Exhibit 37, # 5 Exhibit 38, # 6 Exhibit 39, # 7 Exhibit 40, # 8 Exhibit 41, # 9 Exhibit 42, # 10 Exhibit 43, # 11 Exhibit 44, # 12 Exhibit 45, # 13 Exhibit 46, # 14 Exhibit 47, # 15 Exhibit 48, # 16 Exhibit 49, # 17 Exhibit 50) (Slater, Matthew) (Entered: 04/14/2020)
23 MOTION for Leave to File Excess Pages by ARLETY ALIAGA-COBAS, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, ERNESTO RODRIGUEZ CEDENO, REYNALDO GUERRERO-CORNEJO, IMMIGRATION JUSTICE CAMPAIGN, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, ROBERTO FAUSTO VELASQUE QUIALA, ENRIQUE NAPOLES VAILLANT (Attachments: # 1 Text of Proposed Order)(Slater, Matthew) (Entered: 04/15/2020)
MINUTE ORDER. After review of Plaintiffs' 23 Motion to Extend the Page Limit for Plaintiffs' Reply Brief, it is hereby ORDERED that the Motion is GRANTED. Signed by Judge Carl J. Nichols on April 15, 2020. (lccjn1) (Entered: 04/15/2020)
24 NOTICE of Appearance by Polina Bensman on behalf of All Plaintiffs (Bensman, Polina) (Entered: 04/15/2020)
25 NOTICE of Appearance by Jennifer Kennedy Park on behalf of All Plaintiffs (Park, Jennifer) (Entered: 04/15/2020)
MINUTE ORDER. As discussed in today's hearing on Plaintiffs' 7 Emergency Motion for Temporary Restraining Order, it is hereby ORDERED that (1) in the event that Defendants issue any further guidance or otherwise make policy changes relevant to this case, then Defendants shall provide the Court with immediate notice; and (2) in the event that any of the individual Plaintiffs' upcoming hearings are continued, rescheduled, or otherwise changed, then the Party who learns of the change ﬁrst shall provide the Court with immediate notice. Signed by Judge Carl J. Nichols on April 15, 2020. (lccjn1) (Entered: 04/15/2020)
26 REPLY to opposition to motion re 7 Emergency MOTION for Temporary Restraining Order MOTION for Hearing /Corrected Plaintiffs' Reply Memorandum of Law in Further Support of Their Emergency Motion for Temporary Restraining Order ﬁled by ARLETY ALIAGA-COBAS, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, ERNESTO RODRIGUEZ CEDENO, REYNALDO GUERREROCORNEJO, IMMIGRATION JUSTICE CAMPAIGN, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, ROBERTO FAUSTO VELASQUE QUIALA, ENRIQUE NAPOLES VAILLANT. (Slater, Matthew) (Entered: 04/15/2020)
Minute Entry for proceedings held before Judge Carl J. Nichols: Motion Hearing re 7 Emergency Motion for Temporary Restraining Order held on 4/15/2020. Motion
heard and taken under advisement. (Court Reporter: Nancy Meyer) (zcdw) (Entered: 04/16/2020)
27 TRANSCRIPT OF PROCEEDINGS before Judge Carl J. Nichols held on 04/15/2020. Page Numbers: 1-78. Date of Issuance: 04/16/2020. Court Reporter: Nancy J. Meyer. Telephone Number: (202) 354-3118, Tape Number: N/A. Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter re ferenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

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District of Columbia live database
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have 21 days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

04/20/2020 04/20/2020
04/20/2020 04/20/2020 04/20/2020
04/21/2020 04/21/2020 04/22/2020

Redaction Request due 5/7/2020. Redacted Transcript Deadline set for 5/17/2020. Release of Transcript Restriction set for 7/15/2020.(Meyer, Nancy) (Entered: 04/16/2020)
28 NOTICE of Appearance by Cristina Velez on behalf of All Plaintiffs (Velez, Cristina) (Main Document 28 replaced on 4/20/2020) (zeg). (Entered: 04/20/2020)
29 MOTION for Leave to File Plaintiffs' Supplemental Brief in Support of Emergency Motion for Temporary Restraining Order by ARLETY ALIAGA-COBAS, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, ERNESTO RODRIGUEZ CEDENO, REYNALDO GUERRERO-CORNEJO, IMMIGRATION JUSTICE CAMPAIGN, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, ROBERTO FAUSTO VELASQUE QUIALA, ENRIQUE NAPOLES VAILLANT (Attachments: # 1 Plaintiffs' Supplemental Brief in Support of Emergency Motion for Temporary Restraining Order, # 2 Declaration of Matthew D. Slater, # 3 Exhibit 51, # 4 Exhibit 52, # 5 Exhibit 53, # 6 Exhibit 54, # 7 Exhibit 55, # 8 Exhibit 56, # 9 Exhibit 57, # 10 Exhibit 58, # 11 Exhibit 59, # 12 Exhibit 60, # 13 Exhibit 61, # 14 Text of Proposed Order)(Slater, Matthew) (Entered: 04/20/2020)
30 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. MATTHEW T. ALBENCE served on 4/3/2020; EXECUTIVE OFFICE OF IMMIGRATION REVIEW served on 4/6/2020; IMMIGRATION AND CUSTOMS ENFORCEMENT served on 4/3/2020; JAMES MCHENRY served on 4/8/2020 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Slater, Matthew) (Entered: 04/20/2020)
31 MOTION for Leave to File Amicus Curiae Brief in Support of Neither Party by NATIONAL ASSOCIATION OF IMMIGRATION JUDGES (Attachments: # 1 Amicus Curiae Brief, # 2 Text of Proposed Order)(Parrish, Ashley) (Entered: 04/20/2020)
MINUTE ORDER. After review of Plaintiffs' 29 Motion for Leave to File Plaintiffs' Supplemental Brief in Support of Emergency Motion for Temporary Restraining Order, it is hereby ORDERED that the Motion is GRANTED and that the submitted Supplemental Brief and its accompanying exhibits shall be considered ﬁled. It is further ORDERED that (1) on or before April 23, 2020, Defendants shall ﬁle their Opposition to Plaintiffs' Supplemental Brief; and (2) on or before April 24, 2020, Plaintiffs shall ﬁle their Reply in support of their Supplemental Brief. Signed by Judge Carl J. Nichols on April 20, 2020. (lccjn1) (Entered: 04/20/2020)
MINUTE ORDER. Yesterday, Proposed Amicus National Association of Immigration Judges's ("NAIJ") ﬁled a Motion for Leave to File an Amicus Curiae Brief in Support of Neither Party, ECF No. 31 , in which NAIJ states that Defendants oppose its 31 Motion. As a result, it is hereby ORDERED that Defendants shall ﬁle their Opposition to NAIJ's 31 Motion on or before April 22, 2020. Signed by Judge Carl J. Nichols on April 21, 2020. (lccjn1) (Entered: 04/21/2020)
Set/Reset Deadlines/Hearings: Response to 31 due by 4/22/2020. (zcdw) (Entered: 04/21/2020)
32 NOTICE of Appearance by Elsbeth Jane Bennett on behalf of All Plaintiffs (Bennett,

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04/22/2020 04/23/2020
04/23/2020 04/23/2020
04/24/2020
04/28/2020 04/28/2020 06/02/2020

District of Columbia live database
Elsbeth) (Main Document 32 replaced on 4/22/2020) (zeg). (Entered: 04/22/2020)
33 RESPONSE re 31 MOTION for Leave to File Defendants' Position on NAIJ's Motion ﬁled by IMMIGRATION AND CUSTOMS ENFORCEMENT, JAMES MCHENRY. (Bateman, William) Modiﬁed event title and link on 4/23/2020 (znmw). (Entered: 04/22/2020)
MINUTE ORDER. After review of Proposed Amicus's 31 Motion of the National Association of Immigration Judges for Leave to File an Amicus Curiae Brief in Support of Neither Party, it is hereby ORDERED that the Motion is GRANTED and that the submitted amicus curiae brief, ECF No. 31-1, shall be considered part of the record in this matter. Signed by Judge Carl J. Nichols on April 23, 2020. (lccjn1) (Entered: 04/23/2020)
34 AMICUS BRIEF by NATIONAL ASSOCIATION OF IMMIGRATION JUDGES. (eg) (Entered: 04/23/2020)
35 Memorandum in opposition to re 29 MOTION for Leave to File Plaintiffs' Supplemental Brief in Support of Emergency Motion for Temporary Restraining Order ﬁled by MATTHEW T. ALBENCE, EXECUTIVE OFFICE OF IMMIGRATION REVIEW, IMMIGRATION AND CUSTOMS ENFORCEMENT, JAMES MCHENRY. (Attachments: # 1 Declaration of Alexander J. Halaska, # 2 Exhibit 16, # 3 Exhibit 17, # 4 Exhibit 18, # 5 Exhibit 19, # 6 Exhibit 20)(Halaska, Alexander) (Entered: 04/23/2020)
36 REPLY to opposition to motion re 29 MOTION for Leave to File Plaintiffs' Supplemental Brief in Support of Emergency Motion for Temporary Restraining Order ﬁled by ARLETY ALIAGA-COBAS, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, ERNESTO RODRIGUEZ CEDENO, REYNALDO GUERREROCORNEJO, IMMIGRATION JUSTICE CAMPAIGN, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, ROBERTO FAUSTO VELASQUE QUIALA, ENRIQUE NAPOLES VAILLANT. (Attachments: # 1 Declaration of Matthew D. Slater, # 2 Exhibit 62, # 3 Exhibit 63, # 4 Exhibit 64, # 5 Exhibit 65, # 6 Exhibit 66, # 7 Exhibit 67)(Slater, Matthew) (Entered: 04/25/2020)
37 MEMORANDUM OPINION. Signed by Judge Carl J. Nichols on April 28, 2020. (lccjn1) (Entered: 04/28/2020)
38 ORDER. Signed by Judge Carl J. Nichols on April 28, 2020. (lccjn1) (Entered: 04/28/2020)
39 NOTICE of Voluntary Dismissal by All Plaintiffs (Slater, Matthew) (Entered: 06/02/2020)

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 Case 1:20-cv-00852 Document 1 Filed 03/30/20 Page 1 of 29

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, on behalf of its members, 2201 Wisconsin Ave NW, Suite 200 Washington, D.C. 20007;
AMERICAN IMMIGRATION LAWYERS ASSOCIATION, on behalf of its members, 1331 G Street, NW, Suite 300 Washington, D.C. 20005-3142;
IMMIGRATION JUSTICE CAMPAIGN, on behalf of its members, 1331 G Street, NW, Suite 200 Washington, D.C. 20005-3142;

CIVIL COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Case No. _____________

ENRIQUE NAPOLES VAILLANT, La Palma Correctional Center 5501 N. La Palma Road Eloy, AZ 85131;

ERNESTO RODRIGUEZ CEDENO, La Palma Correctional Center 5501 N. La Palma Road Eloy, AZ 85131;

ARLETY ALIAGA-COBAS, Eloy Detention Center 1705 E Hanna Rd Eloy, AZ 85131;

REYNALDO GUERRERO-CORNEJO La Palma Correctional Center 5501 N. La Palma Road Eloy, AZ 85131;

ROBERTO FAUSTO VELASQUEZ QUIALA Pine Prairie ICE Processing Center 1133 Hampton Dupre Road Pine Prairie, LA 70576;

Plaintiffs,

Case 1:20-cv-00852 Document 1 Filed 03/30/20 Page 2 of 29
v. EXECUTIVE OFFICE OF IMMIGRATION REVIEW U.S. Department of Justice 5107 Leesburg Pike Falls Church, VA 22041 U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 500 12th St., SW Washington, D.C. 20536;
JAMES MCHENRY, Director of the Executive Office for Immigration Review, in his official capacity, 5107 Leesburg Pike Falls Church, VA 22041
MATTHEW ALBENCE, Acting Director for U.S. Immigration and Customs Enforcement, in his official capacity, 500 12th St., SW Washington, D.C. 20536;
Defendants.
INTRODUCTION
1. The COVID-19 global pandemic, caused by the novel coronavirus, has been
characterized as the worst the world has seen since 1918. States and countries around the
world have declared a State of Emergency and have shut down nonessential businesses,
restricted public gatherings, and imposed “shelter-in-place” orders in an attempt to control
the spread of the disease. Tens of thousands of people in the United States have tested
positive for COVID-19 and over 2,100 have died in the United States alone. The Centers
for Disease Control (“CDC”) has specifically highlighted in-person court appearances as a
risk factor for coronavirus outbreaks, and federal courts and the Bureau of Prisons have
taken measures to implement uniform policies to minimize the health risk. Yet, the
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Executive Office for Immigration Review (EOIR) has not taken the same measures, and most immigration courts remain open for in-person business, putting the health and safety of individuals in immigration detention and their attorneys at risk.
2. Defendant EOIR has failed to put in place a uniform policy suspending inperson appearances and enacting protective measures for detained noncitizens who wish to proceed with their immigration hearings. As a result of EOIR’s failure to act, attorneys and detained clients have to appear in court in person for hearings or to file critical case documents, with inconsistent rules about telephonic appearances and no meaningful provisions made for their health or safety. EOIR is effectively forcing attorneys to choose between adequately representing their clients and jeopardizing their health; EOIR is also forcing detained immigrants to choose between their health and safety and their statutory, regulatory, and due process rights.
3. EOIR’s failure to suspend in-person proceedings and to provide meaningful alternatives for those who are detained interferes significantly with detained immigrants’ right to counsel and with attorneys’ First Amendment right to represent their clients. EOIR’s failure to act has significantly aggravated previously existing access issues and has meant that legal representatives must be willing to risk their health and safety to represent their clients in court in many places.
4. At the same time, Defendant Immigration and Customs Enforcement (“ICE”) has adopted measures that make it almost impossible for legal representatives to communicate with their clients. ICE now requires attorneys and other legal visitors to provide and bring their own Personal Protective Equipment (PPE)—including gloves, N95 masks, and eye protection—before they can have an in-person meeting with their client to prepare them for their ongoing court hearings. Meanwhile in most ICE facilities,
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telephonic access is severely limited, scheduling confidential legal calls is extremely difficult, and attorneys cannot call in to access their clients or relay a message without onerous and highly limited prior scheduling requirements. By imposing these requirements in the face of widespread PPE shortages and a lack of adequate remote access in detention facilities, ICE is functionally barring immigration attorneys from meeting with their clients and is depriving detained immigrants of their right to counsel.
5. Plaintiffs are membership organizations comprised of immigration attorneys and immigrant rights advocates, and individuals detained in ICE custody. They seek relief from this Court because Defendants’ actions are placing the health and safety of Plaintiffs’ members at risk and depriving the individual Plaintiffs of their right to a meaningful opportunity to present their case and to have access to counsel.
6. As set forth below, Defendants’ inadequate response to the COVID-19 pandemic violates the Immigration and Nationality Act (“INA”), the Administrative Procedures Act (“APA”), the First Amendment, and the Due Process Clause of the Fifth Amendment.

JURISDICTION AND VENUE

7.

This Court has subject matter jurisdiction under 28 U.S.C. § 1331 (federal

question); 28 U.S.C. §§ 2201 and 2202 (declaratory relief), 28 U.S.C. § 2241 (habeas

corpus); and 5 U.S.C. § 706 (waiver of sovereign immunity).

8.

Venue is proper under 28 U.S.C. § 1391(e)(1) because all organizational

Plaintiffs are located in this District.

9.

An actual and justiciable controversy exists between the parties under 28

U.S.C. § 2201, and this Court has authority to grant declaratory and injunctive relief, id.

§§ 1351, 2201, 2202.

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PARTIES 10. Plaintiff National Immigration Project of the National Lawyers Guild (NIPNLG) is a national non-profit 501(c)(3) membership organization headquartered in Washington, D.C. NIPNLG is a membership-based organization representing 1,500 immigration attorneys, legal workers and immigration rights advocates. NIPNLG members provide immigration representation to, among others, detained individuals who are in removal proceedings. NIPNLG specializes in defending the rights of immigrants facing incarceration and deportation. It provides technical assistance and support to community-based immigrant organizations, legal practitioners, and advocates seeking and working to advance the rights of noncitizens. 11. Plaintiff American Immigration Lawyers Association (AILA) is a national membership association of more than 15,000 attorneys and law professors who practice and teach immigration law. AILA members provide legal representation to, among others, individuals in removal and rescission proceedings, and individuals seeking humanitarian relief under our nation’s immigration laws. AILA promotes the delivery of competent, ethical, and lawful immigration services, and increases the knowledge and professionalism of its members by providing continuing legal education and technical support. 12. Plaintiff Immigration Justice Campaign (IJC) is a non-profit national organization which facilitates pro bono representation for detained individuals by recruiting, training and mentoring those attorneys and connecting them with the individuals who need their legal services. In partnership with local legal service providers, the Justice Campaign facilitates this legal representation for individuals detained in Aurora, Colorado; El Paso, Texas; Newark, New Jersey; San Diego, California; and in various locations throughout the southeastern United States.
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13. Plaintiffs NIPNLG, AILA, and IJC generally oppose the use of video teleconferencing (VTC) and telephonic hearings as an alternative to in-person hearings, and any endorsement of those alternative hearing methods through the filing of this lawsuit is limited to the duration of the COVID-19 pandemic.
14. Plaintiff Enrique Napoles Vaillant is a Cuban national detained at the La Palma Correctional Center in Eloy, Arizona. He is an asylum seeker who has been granted withholding of removal to Cuba. He is currently detained while awaiting resolution of his immigration case. He has an immigration court hearing scheduled in June. He is currently unrepresented because the Florence Immigrant and Refugee Rights Project (“FIRRP”), which was in the process of obtaining pro bono representation for him and his husband Plaintiff Ernesto Rodriguez Cedeno, had to suspend those efforts due to the significant restrictions Defendants have placed on attorney access to the facility and the highly limited and inadequate telephone access with individuals detained in those facilities. He is afraid that being forced to appear at his hearing unrepresented will result in a worse outcome for his case.
15. Plaintiff Ernesto Rodriguez Cedeno is a Cuban national detained at the La Palma Correctional Center in Eloy, Arizona. He is an asylum seeker whose hearing is currently scheduled for April 2, 2020. He is currently unrepresented because FIRRP, which was in the process of obtaining pro bono representation for him and his husband Plaintiff Enrique Napoles, had to suspend those efforts due to the significant restrictions Defendants have placed on attorney access to the facility and the highly limited and inadequate telephone access with individuals detained in those facilities. Although he requested a continuance in order to obtain representation, the continuance request was denied. Plaintiff Cedeno has asthma and is at high risk of severe illness or death were he to contract COVID-
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19. He is concerned about his ability to represent himself in complicated immigration proceedings during this time. He also has very limited phone access within the facility; even if he were able to obtain representation, it would be very difficult for him to communicate with an attorney to prepare for his hearing. To make a phone call recently, he had to stand in line with about ten people for almost three hours.
16. Plaintiff Arlety Aliaga-Cobas is a Cuban national detained at the Eloy Detention Center in Eloy, Arizona. She is an asylum seeker who has recently won an appeal before the Board of Immigration Appeals, with the assistance of FIRRP who placed her case with pro bono counsel. Her case has now been remanded for further proceedings and her hearing is scheduled for June. Although FIRRP was working to place her case with counsel for the remanded proceedings, they have had to suspend those efforts because of the significant restrictions Defendants have placed on attorney access to the facility and the highly limited and inadequate telephone access with individuals detained at those facilities. She is terrified of proceeding without an attorney in her case, because at her first removal hearing where she was unrepresented, the Immigration Judge misunderstood or ignored her clear statement that she still wished to proceed with her asylum application and wrongly found that she had abandoned her asylum application. Her ability to find representation is being significantly hindered by Defendants’ policies.
17. Plaintiff Reynaldo Guerrero-Cornejo is a 53-year-old Mexican national who has been a Lawful Permanent Resident since 1989. He has a Lawful Permanent Resident wife and three U.S. citizen children. He is detained at the La Palma Correctional Center in Eloy, Arizona while awaiting resolution of his removal proceedings. He currently has a hearing scheduled for April 24, 2020, which requires intensive preparation with his attorney. He is currently unable to see his attorney in person because of the policies
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Defendants have put in place restricting access to the facilities, and his phone access is not sufficient to fully prepare him for the hearing.
18. Plaintiff Roberto Fausto Velasquez Quiala is a Cuban national who received a positive credible fear determination. He is currently detained pending resolution of his immigration court proceedings at the Pine Prairie ICE Processing Center in Pine Prairie, Louisiana. His immigration court hearing is scheduled for the end of April 2020. He is currently unable to see his attorney in order to prepare for the hearing, and he is limited to 30 minutes a day for attorney calls.
19. Defendant Executive Office for Immigration Review (“EOIR”) is a federal government agency within the Department of Justice that includes the immigration courts and the Board of Immigration Appeals (“BIA”). It is responsible for directing and managing the immigration court system.
20. Defendant Immigration and Customs Enforcement (“ICE”) is a component of Department of Homeland Security (“DHS”), an executive department of the United States. Defendant ICE carries out removal orders and oversees immigration detention.
21. Defendant James McHenry is the Director of EOIR, and is sued in his official capacity only.
22. Defendant Matthew Albence is the Acting Director of ICE, and is sued in his official capacity only.
FACTUAL ALLEGATIONS A. COVID-19 Poses Grave Risk of Harm, Including Serious Illness or Death.
23. COVID-19 is a coronavirus that has reached pandemic status. As of March 30, 2020, more than 690,000 individuals worldwide have confirmed diagnoses, including
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more than 120,000, in the United States.1 More than 33,000 individuals worldwide have died as a result of COVID-19, including more than 2,100 in the United States alone.2 Those numbers are growing exponentially, with more than 58,000 new cases worldwide in the past day alone.3
24. Nationally, CDC projections indicate that over 200 million individuals in the United States could be infected with COVID-19 over the course of the epidemic without effective public health intervention, with as many as 1.5 million deaths in the worst projections.4
25. COVID-19 is a highly contagious disease that is easily transmitted through respiratory droplets, especially when one is within six feet of an infected individual. Completely asymptomatic individuals can transmit the coronavirus to others who can then become infected with COVID-19.
26. COVID-19 can result in respiratory failure, kidney failure, and death. Infected individuals who do not die from the disease can face serious damage to the lungs, heart, liver, or other organs, resulting in prolonged recovery periods, including extensive rehabilitation from neurological damage and loss of respiratory capacity.
27. Older individuals and those with certain medical conditions, including many of the organizational plaintiffs’ members, face greater chances of serious illness or death from COVID-19. Certain underlying medical conditions increase the risk of serious
1 Coronavirus disease 2019 (COVID-19) Situation Report – 70, World Health Organization (Mar. 30, 2020), available at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200330sitrep-70-covid-19.pdf?sfvrsn=7e0fe3f8_2. 2 Id. 3 Id. 4 James Glanz, et al., Coronavirus Could Overwhelm U.S. without Urgent Action, Estimates Say, New York Times (Mar. 20, 2020), available at https://www.nytimes.com/interactive/2020/03/20/us/coronavirusmodel-us-outbreak.html.
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COVID-19 disease for individuals of any age, including lung disease, chronic liver or kidney disease, diabetes, epilepsy, hypertension, compromised immune systems, blood disorders, inherited metabolic disorders, stroke, and pregnancy.
28. COVID-19 can also severely damage lung tissue, affect cardiac functions, and cause widespread damage to other organs. These complications can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.
29. Even some younger and healthier individuals who contract COVID-19 may require supportive care. The need for care, including intensive care, and the likelihood of death, is much higher from COVID-19 infection than from influenza. According to recent estimates, the fatality of people infected with the coronavirus is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems.
30. There is no vaccine against COVID-19, nor is there any known medication to prevent or cure infection from the virus.
31. The only known effective measures to reduce the spread of coronavirus are social distancing or remaining physically separated from known or potentially infected individuals, and vigilant hygiene, including washing hands with soap and water. B. COVID-19 Has Spread in Immigration Courts and In U.S. Jails and Prisons, Including ICE Detention Facilities
32. Within a mere ten days of the World Health Organization (WHO) declaring a COVID-19 pandemic,5 the virus had made its way into detention facilities and
5 WHO Director-General’s Opening Remarks at the Media briefing on COVID-19, World Health Organization (Mar. 11, 2020), available at https://www.who.int/dg/speeches/detail/who-director-general-s-
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immigration courts nationwide.
33. To date, positive COVID-19 cases have appeared among staff or
incarcerated individuals in detention facilities in California,6 Georgia,7 Wisconsin,8
Louisiana,9 and New York.10 COVID-19 cases have also emerged among ICE detainees
and employees in ICE facilities,11 and have been confirmed in several immigration courts.12
34. Given the shortage of testing capacity nationwide, COVID-19 cases in
immigration courts and detention facilities are likely far more widespread than reported. In
early March, health experts had warned that serious outbreaks of the virus in detention
opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020. 6 See Paige St. John, First Inmate in California’s Prison System Tests Positive for Coronavirus, Los Angeles Times (Mar. 22, 2020), available at https://www.latimes.com/california/story/2020-0322/coronavirus-first-california-prisoner-tests-positive-los-angeles-county; Michael Barba, SF Deputy Sherriff Assigned to Hall of Justice Jail Test Positive for Coronavirus, San Francisco Examiner (Mar. 22, 2020), available at https://www.sfexaminer.com/news/sf-deputy-sheriff-assigned-to-hall-of-justice-jailtests-positive-for-coronavirus/ 7 Max Blau, et al., 3 Georgia Prison Inmates Test Positive for COVID-19, Others Monitored, Atlanta Journal Constitution (Mar. 21, 2020), available at https://www.ajc.com/news/local/breaking-georgiaprison-inmate-tests-positive-for-covid/2U3hE09fRS6WG9SMHOYZ7I/ 8 Second Wisconsin Prison Worker Tests Positive for Coronavirus, ABC-WBAY-TV (Mar. 23, 2020), available at https://www.wbay.com/content/news/Second-Wisconsin-prison-worker-tests-positive-forcoronavirus-569024661.html 9 Federal Prison in Allen Parish Confirms Two Coronavirus Cases, ABC-WBRZ-2 (Mar 23, 2020), available at https://www.wbrz.com/news/federal-prison-in-allen-parish-confirms-two-coronavirus-casesmonday. 10 Daniel Gross, “It Spreads Like Wildfire”: The Coronavirus Comes to New York’s Prisons, The New Yorker (Mar. 24, 2020), available at https://www.newyorker.com/news/news-desk/it-spreads-like-wildfirecovid-19-comes-to-new-yorks-prisons 11 ICE Guidance on COVID-19: Confirmed Cases, U.S. Immigration and Customs Enforcement (Mar. 24, 2020), available at https://www.ice.gov/covid19
12 See, e.g., EOIR (@DOJ_EOIR), Twitter (Mar. 24, 2020, 11:36 AM),
https://twitter.com/DOJ_EOIR/status/1242520585420394497 (reporting on coronavirus positive individual in Elizabeth Immigration Court in New Jersey); EOIR (@DOJ_EOIR), Twitter (Mar. 23, 2020, 7:50 PM), https://twitter.com/DOJ_EOIR/status/1242282632337068035 (same with respect to Varick Immigration Court in New York)
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facilities were imminent,13 and on March 17, health experts warned of the dangers of the
virus if the immigration courts remain open for in-person hearings.14 As of March 30, 2020,
more than 120,000 people in the United States have tested positive for COVID-19 and
more than 2100 have died, with nearly 19,000 new cases in the past day alone.15 These
number are rising exponentially.
35. The CDC has warned that courthouses are especially susceptible to spread
of the virus, and both the CDC and the WHO have warned that detention centers are
especially vulnerable to rapid spread of COVID-19.16 WHO experts have sounded the
alarm warning that outbreaks in detention facilities would lead to “huge mortality rates.”17
Under these circumstances, continuing to require detained immigrants and their attorneys
to appear in court, and continuing to hold hearings without appropriate accommodations,
is an invitation for a massive outbreak among immigration attorneys, their clients, and the
detention centers in which those clients are housed.
C. EOIR’s Failure to Issue a Uniform Policy Adequately Addressing the COVID-19 Pandemic Has Led to Incoherent, Chaotic, and Inadequate Policies.
13 Rich Schapiro, Coronavirus Could ‘Wreak Havoc’ on U.S. Jails, Experts Warn, NBC News (Mar. 12, 2020) available at https://www.nbcnews.com/news/us-news/coronavirus-could-wreak-havoc-u-s-jailsexperts-warn-n1156586 14 Charles Davis, Immigration Judges, ICE Attorneys, and Experts are Calling on the Trump Administration to Close the Courts to Stop the Novel Coronavirus from Spreading, Business Insider (Mar. 17, 2020) available at https://www.businessinsider.com/coronavirus-ice-and-immigration-judges-call-fordelay-in-hearings-2020-3
15 Coronavirus disease 2019 (COVID-19) Situation Report – 70, World Health Organization (Mar. 30, 2020), available at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200330sitrep-70-covid-19.pdf?sfvrsn=7e0fe3f8_2 16 See Preparedness, Prevention and Control of COVID-19 in Prisons and Other Places of Detention, World Health Organization (Mar. 15, 2020) at 2; Interim Guidance on Management of Coronavirus Disease 201 (COVID-19) in Correctional and Detention Facilities, CDC (Mar. 23, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html 17 Hannah Summers, ‘Everyone Will be Contaminated’ Prisons Face Strict Coronavirus Controls, The Guardian (Mar. 23, 2020), available at https://www.theguardian.com/globaldevelopment/2020/mar/23/everyone-will-be-contaminated-prisons-face-strict-coronavirus-controls
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36. In response to the pandemic, EOIR issued a memo on March 18, 2020 postponing all hearings for non-detained individuals scheduled through April 10, 2020, but not detained hearings. The memo provided merely optional recommendations to immigration courts on how to address the COVID-19 outbreak. On March 26, 2020, EOIR followed up with an email to stakeholders that did not provide any meaningful requirements for closing down in-person interactions in court. Despite the public health crisis unfolding in detention facilities and in immigration courts, the detained docket remains operating, and the vast majority of immigration courts remain open.
37. EOIR has not issued any nationwide policy providing for rescheduling or remote access accommodations of hearings for detained individuals. Instead, EOIR has deferred to individual immigration courts to address the public health crisis in the detained docket. This has resulted in haphazard and wildly inconsistent responses. Some courts have standing orders related to COVID-19, others do not. As of today, thirty-three immigration courts have issued COVID-19 standing orders, some of which are specific to individual judges rather than the entire court. The standing orders vary drastically in their scope and adopt conflicting procedures as described more fully below.
38. Amidst this chaos, EOIR has adopted the practice of communicating key announcements, sometimes exclusively, through social media such as Twitter and Facebook. This includes court closures and changes to filing deadlines. The official EOIR Twitter account has issued midnight tweets declaring next day court closures. In at least one case, the announced court closures never occurred. EOIR also tweeted next day new filing deadlines at 6 pm the evening before. The tweet was later deleted, but not before
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sowing confusion and panic among immigration attorneys and their clients.18 D. Defendants’ Response to COVID-19 Endangers the Health of Detained Noncitizens and Their Legal Representatives
39. Although ICE and EOIR have telephonic and video teleconferencing (VTC) capabilities, immigration courts are still needlessly holding in-person immigration hearings, imperiling the health of both detainees and their legal representatives.19 In contrast, other courts and court systems around the country, including the U.S. Supreme Court, have taken actions to address the pandemic such as closing to the public, waiving requirements for paper filings, and extending deadlines and hearings.20
40. Meanwhile, EOIR has not only continued to hold in-person hearings, it has also continued to require paper filings to be made at the physical court locations, has failed to extend filing deadlines, has not routinely authorized telephonic or video appearances, and has taken no uniform measures to protect attorneys and detained immigrants from harm. EOIR also has not directed its courts to facilitate rescheduling for detained immigrants who do not wish to proceed with their hearings under these circumstances.
41. Unlike federal courts and most government agencies, immigration courts do not accept filing by email, fax, or any other electronic filing methods. EOIR has not
18 Suzanne Monyak, Chaos, Confusion Reign As Immigration Courts Stay Open, Law360 (Mar. 28, 2020), available at https://www.law360.com/articles/1257798/chaos-confusion-reign-as-immigration-courts-stayopen 19 The organizational plaintiffs fundamentally oppose routine or mandated use of VTC and telephonic hearings in place of in-person hearings under ordinary circumstances, and present them as alternatives in this case only for detained immigrants who wish to proceed with their hearings and have no safe options for in-person appearance. 20 See, e.g., Supreme Court, https://www.supremecourt.gov/ (last visited Mar. 27, 2020) (announcing that the court will be closed until further notice due to COVID-19); Order - General Docket No. 2020-3 (5th Cir. 2020), available at http://www.ca5.uscourts.gov/docs/default-source/default-document-library/order-1clerks-office-covid-19.pdf?sfvrsn=def8cb2d_2 (waiving the requirement for paper filing in the Fifth Circuit).
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modified this policy in light of the crisis.21 Legal representatives must either deliver filings in person or send them by mail or courier. Not only is this a risk to their health, but in places like New York or California, where there are “shelter-in-place” orders, this policy requires attorneys to defy the law. In dense urban settings like New York City, it also requires attorneys to take crowded and unsanitary public transportation, further exposing them to risk of contracting COVID-19.
42. Attending an in-person hearing in immigration court generally entails having to interact with many individuals and touch objects that have been used by hundreds of people, whether during the security clearance procedures, in the waiting rooms, or at the hearing itself. Requiring in-person appearances thus endangers the health of detained immigrants, their legal representatives and the public. As previously noted, the CDC has specifically highlighted in-person court appearances as risk factors that make detention facilities especially vulnerable to COVID-19 outbreaks.22
43. Even where there are reports of positive COVID-19 individuals in immigration courts, EOIR has not been consistent about closing all in-person operations.
44. On March 24, 2020, the official EOIR Twitter account tweeted that an individual in the Elizabeth Immigration Court in New Jersey had tested positive for COVID-19. EOIR decided to close the court for one day only.23 This is especially alarming because of the sanitary conditions in that court. The court is housed in the Elizabeth Detention Center (EDC). Legal representatives must go through a security screening area
21 See, e.g., Courts’ Reponses to the Covid-19 Crisis, The Brennan Center (Mar. 27, 2020), available at https://www.brennancenter.org/our-work/research-reports/courts-responses-covid-19-crisis 22 See Interim Guidance on Management of Coronavirus Disease 201 (COVID-19) in Correctional and Detention Facilities, CDC (Mar. 23, 2020) 23 EOIR (@DOJ_EOIR), Twitter (Mar. 24, 2020, 11:36 AM), https://twitter.com/DOJ_EOIR/status/1242520585420394497
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that is used by all visitors to the detention center and the court but have no access to a sink or bathroom once inside. At a minimum, by the time attorneys get to court, they would have had to have touched door handles, trays for security scanners, and a visitor ID badge without an opportunity to wash their hands.
45. Similarly, after a report of a positive COVID-19 case amongst its staff on March 23, the New York City immigration court on Varick Street closed on March 24 but reopened for detained hearings a day later.24 On March 27, that court announced that going forward, all hearings will be overseen remotely by judges in Fort Worth Texas and that immigration attorneys may appear in person either at Varick Street or in Fort Worth Texas.25 But attorneys attempting to obtain information about the schedule of their telephonic hearings or to ensure that their clients’ files are available to the Fort Worth Texas judges have been unable to obtain a response or confirmation. The Varick Street Immigration Court does not have a court-wide standing order waiving motion requirements to appear telephonically. These patently absurd policies demonstrate a complete disregard for the health and safety of detained noncitizens and their representatives.
46. These dangerous practices are not limited to COVID-19 geographical hotspots. In Denver, an immigration judge is currently in self-quarantine after a doctor deemed her presumptively positive for COVID-19. That court remains open for in-person
24 Mazin Sidahmed, Varick St. Immigration Court Reopened Despite Court Staffer Testing Positive for COVID-19, Documented NY (March 25, 2020), available at https://documentedny.com/2020/03/25/varickst-immigration-court-reopened-despite-court-staffer-testing-positive-for-covid-19/ 25 Mazin Sidahmed, The Varick St. Immigration Court Has Moved All of Its Hearings to Fort Worth, Documented NY (March 27, 2020), available at https://documentedny.com/2020/03/27/the-varick-stimmigration-court-has-moved-all-of-its-hearings-to-fort-worth/
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detained hearings.26 47. ICE detention facilities are also inadequately protecting detained
noncitizens and counsel during visitation. Although ICE now requires all visitors, including legal visitors, to wear Personal Protective Equipment (PPE) for in-person meetings, it does not provide PPE to legal visitors and does not provide alternative access for attorneys who are not able to secure the required PPE amidst a nationwide shortage of such supplies. Alarmingly, ICE also does not appear to have a policy requiring its own staff in detention facilities to wear PPE.
48. ICE also continues to transport detained immigrants to court hearings in crowded buses. This is especially harmful to those who are representing themselves pro se in immigration proceedings, as they have no option not to appear at their hearing, and immigration courts have continued to issue in absentia orders of removal for individual who do not appear, even when the likely cause is COVID-19.
49. EOIR has failed to put in place a policy suspending in-person appearances in court, facilitating remote access and filing, enabling rescheduling, or providing robust remote access alternatives for detained immigrants who wish to proceed with their cases.
50. ICE has also failed to uniformly implement or improve remote access between attorneys and their clients in their detention facilities. E. Defendants’ Response to COVID-19 Impedes Detained Immigrants’ Right to Counsel and Attorneys’ Ability to Represent their Clients.
51. The persistent requirement of in-person proceedings not only jeopardizes the health of detained immigrants and their representatives, it also severely curtails
26 Ed Pilkington, Trump Keeps Immigration Courts Open Despite Coronavirus Risks, The Guardian (Mar. 16, 2020) available at https://www.theguardian.com/us-news/2020/mar/19/us-immigration-courts-opencoronavirus-risks
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detained immigrants’ access to counsel. 52. Although noncitizens have a statutory and regulatory right to retained
counsel in immigration proceedings, noncitizens in immigration detention face serious barriers to representation. Many detained immigrants lack financial resources and their ability to locate an attorney is severely diminished in detention.27 Even before the pandemic, only thirty-six percent of noncitizens in detention who sought a lawyer were able to find one and only fourteen percent of detainees ultimately secured counsel.28
53. EOIR’s decision to continue to require in-person proceedings for detained noncitizens further diminishes detained immigrants’ ability to access counsel. They must now also find legal representatives willing to put their lives at risk by going to court.
54. EOIR and ICE have made it almost impossible for attorneys to access their detained clients and for detained immigrants to fully realize their right to counsel.
55. While EOIR has seemingly encouraged telephonic appearances, there is currently no consistent policy or practice in immigration courts across the country of allowing legal representatives to appear on behalf of their clients telephonically or providing remote access alternatives to detained immigrants who wish to proceed with their hearings. It also has not uniformly allowed the rescheduling of detained hearings. Detained immigrants in many locations are being transported to their court hearings despite the significant danger to their health and the health of others from such movement and exposure. As of March 27, 2020, less than half of immigration courts had adopted standing orders related to COVID-19. Of those that have, only twenty-three orders allow for
27 Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. PA. L. REV. 1, 34 (2015). 28 Id. at 32, 34-35
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telephonic appearances without a need to file a motion.29 Only five immigration judges have issued standing orders specific to their courtrooms authorizing telephonic appearances without a prior motion.30
56. Many of these standing orders also include restrictions that render effective representation by counsel extremely challenging. Some orders limit such telephonic hearings only to master calendar and bond hearings but not to individual hearings.31 Many orders adopt onerous conditions to telephonic hearings such as requiring waiver of certain evidentiary objections or barring any filings during a hearing.32 Some standing orders state that where a court is unable to reach counsel by phone for a hearing, “counsel will thereafter be required to appear in-person at any rescheduled hearing.”33 Given these conditions, when counsel appropriately request a telephonic hearing, they may be doing it at the cost of effectively representing their clients.
57. Attorneys who have made motions for a telephonic appearance in other courts have frequently not received a ruling on their motion prior to the hearing date and time, and have therefore had to appear in court in person. In addition, some Immigration Judges have denied timely-submitted motions for telephonic appearances.
58. Moreover, ICE detention facilities have adopted practices that seriously
29 See EOIR Operational Status During Coronavirus Pandemic, EOIR, https://www.justice.gov/eoir/eoiroperational-status-during-coronavirus-pandemic (last visited Mar. 27, 2020). 30 Id. 31 See, e.g., Standing Order of the Eloy Immigration Court, U.S. Dep’t of Justice, Exec. Office for Immig. Rev., Immigration Court Practice Manual (“Practice Manual”), Appendix R at R-15. 32 See, e.g., Standing Order of the Las Vegas Immigration Court, Practice Manual at R-22; Standing Order of the Atlanta Immigration Court-Ted Turner Drive, Practice Manual at R-3. 33 See, e.g., Standing Order of the Boston Immigration Court, Practice Manual at R-6; Standing Order of the Conroe Immigration Court Immigration Court, Practice Manual at R-10.
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diminish attorneys’ ability to represent their client. 59. ICE adopted a nationwide policy requiring attorneys and other legal
visitors, including providers of Legal Orientation Programs (LOPs), to bring their own Personal Protective Equipment (PPE)—gloves, N-95 masks, and eye protection—for any in-person meeting at a detention facility.34 Some facilities have been denying legal representatives any access without the required PPEs.35
60. In some cases, ICE’s PPE policy is also barring attorneys from physical access to court. In Aurora, Colorado, where the detained court is located inside a detention facility, ICE informed attorneys that PPE is required to walk through the detention center to the detained court.
61. Given the widespread unavailability of PPE and the woefully inadequate or completely unavailable remote access between attorneys and their detained clients, this policy is outrageous. International, federal, state and local guidelines instruct all persons to avoid obtaining PPE unless medically necessary due to the critical shortages in the healthcare sphere. And given the unavailability of PPEs, this policy functionally bars immigration attorneys from meeting their clients at a time when it is necessary for them to do so in order to prepare them for their hearings. Where attorneys are able to secure PPE, many are forced to reuse the equipment in contravention of public health guidelines.
62. Additionally, most detention facilities used by ICE do not have meaningful ways for legal representatives to speak with detained clients remotely. Many of those in detention have to use prohibitively expensive calling services that are monitored by jail
34 See ICE Guidance on COVID-19: Visitation at Detention Facilities, U.S. Immigration and Customs Enforcement (Mar. 24, 2020), available at https://www.ice.gov/covid19 35 See Letter from AILA Arizona Chapter to EOIR, AILA (Mar. 23, 2020) available at https://www.aila.org/File/Related/20030201x.pdf
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staff (and therefore not confidential) in order to reach their legal representatives. When facilities do allow confidential legal calls, their capacity is limited to one or two phones at any given time for the entire ICE population, making calls nearly impossible to schedule. The lack of uniform EOIR and ICE guidance to remedy this is leading to a patchwork of conflicting and insufficient responses.
63. For example, in the Elizbeth Detention Center (EDC) in New Jersey, ICE has prohibited all in-person visits (with or without PPE) but has not provided meaningful alternatives for attorneys to remotely meet with their clients to prepare the case. Telephone meetings must be pre-arranged, are limited to one hour, and the timeslot is assigned by the detention center. Interpretation services are not provided. Detained immigrants and attorneys are having to rely on other bilingual detained individuals for interpretation. A one-hour telephonic meeting is not sufficient to prepare clients for a hearing in immigration court. Attorneys cannot show clients photos or documents that will be evidence at a hearing, and do not have sufficient time to discuss the issues they need to cover with their clients.
64. Similarly in Arizona, the La Palma detention center has 3,000 beds and only one telephone available for legal calls for only eight hours each day. Attorney calls are limited to 30 minutes in that facility. In Eloy, a facility with 1,500 beds, there are only five telephones available from 4pm – 6pm each day for legal calls, and legal calls are also limited to 30 minutes. Under these circumstances, detained immigrants and attorneys cannot possibly have the necessary amount of contact or time to adequately prepare for their hearings. Similar restrictions exist across ICE detention facilities nationwide.
65. Defendants’ failure to issue and implement uniform, reasonable policies are significantly interfering with access to counsel and curtailing the due process rights of
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those who are detained.

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF: VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT (All Plaintiffs Against All Defendants)
66. All the foregoing allegations are re-alleged and incorporated by reference. 67. The Administrative Procedure Act creates a right of judicial review of “final agency action for which there is no other adequate remedy in court,” 5 U.S.C. § 704, and of agency action “unlawfully withheld or unreasonably denied,” 5 U.S.C. § 701(1). 68. Defendants are subject to the provisions of the APA. 69. Agency action includes the failure to act. Id. § 551(13). 70. Defendants have failed to issue uniform guidance for immigration court proceedings and attorney-client visits in detention facilities that conforms with public health requirements to contain the spread of COVID-19 and that preserves Plaintiffs’ statutory, regulatory, and constitutional rights. 71. Defendants’ failure to act in order to protect the statutory, regulatory, and constitutional rights of Plaintiffs constitutes agency action that is “arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law” under 5 U.S.C. § 706(2)(A). 72. Defendants’ failure to act constitutes agency action “unlawfully withheld or unreasonably denied.” 5 U.S.C. § 701(1).

SECOND CLAIM FOR RELIEF: VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT AND THE ADMINISTRATIVE
PROCEDURE ACT (ACCESS TO COUNSEL) (Detained Plaintiffs Against All Defendants)
73. All the foregoing allegations are re-alleged and incorporated by reference.
74. The Immigration and Nationality Act, 8 U.S.C. § 1362, provides that “[i]n

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any removal proceedings before an immigration judge,” the individual “shall have the privilege of being represented . . . .” See also 8 C.F.R. § 1240.3. The INA further provides that “[removal] proceedings may take place (i) in person . . . (iii) through video conference, or (iv) … through telephone conference [with the noncitizen’s consent and upon advisement of the right to proceed in person or through video conference in certain cases].”
75. The APA, 5 U.S.C. § 555(b), provides that “[a] person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative. A party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding.” Individuals subjected to removal procedures are compelled to appear in person before agency representatives.
76. Federal courts repeatedly have recognized the importance of this right. See, e.g. Orantes Hernandez v. Thornburgh, 919 F.2d 549, 554 (9th Cir. 1990) (finding that immigrants have a due process right to obtain counsel of their choice at their own expense); Iavorski v. INS, 232 F.3d 124, 128 (2d Cir. 2000) (describing the statutory right to be represented by counsel as “an integral part of the procedural due process to which the alien is entitled.”).
77. Defendants’ failure to act in order to protect the statutory, regulatory, and constitutional rights of Plaintiffs violates 8 U.S.C. § 1362 and the APA, 5 U.S.C. § 555(b).
THIRD CLAIM FOR RELIEF: VIOLATION OF THE FIFTH AMENDMENT RIGHT TO PROCEDURAL DUE PROCESS
(ACCESS TO COUNSEL) (Detained Plaintiffs Against All Defendants) 78. All of the foregoing allegations are re-alleged and incorporated by reference. 79. The Fifth Amendment to the U.S. Constitution provides that “[n]o person
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shall be . . . deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V.
80. Noncitizens in removal proceedings are entitled to procedural due process including the right to be represented by counsel. See Reno v. Flores, 507 U.S. 292, 306 (1993) (“It is well established that the Fifth Amendment entitles [noncitizens] to due process of law in deportation proceedings.”); Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005) (“The right to counsel in immigration proceedings is rooted in the Due Process Clause.”).
81. Defendants are violating procedural due process by implementing policies that deprive noncitizens of their ability to retain counsel, communicate confidentially with their legal representation, and have counsel able to competently represent them in immigration court.
82. As a result of Defendants’ violations, Plaintiffs are suffering and will continue to suffer a significant deprivation of their right to counsel.
FOURTH CLAIM FOR RELIEF: VIOLATION OF THE FIRST AMENDMENT
(Organizational Plaintiffs Against All Defendants) 83. All of the foregoing allegations are re-alleged and incorporated by reference. 84. The First Amendment to the U.S. Constitution protects legal services providers from government interference when they are “advocating lawful means of vindicating legal rights.” NAACP v. Button, 371 U.S. 415, 437 (1963). 85. Defendants’ policies have impeded Organizational Plaintiffs’ and Attorney Plaintiffs’ access to their clients, thereby restricting their ability to communicate with and advise their clients. Defendants have therefore violated the Organizational Plaintiffs’ and
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Attorney Plaintiffs’ First Amendment rights. FIFTH CLAIM FOR RELIEF: VIOLATION OF THE FIRST AMENDMENT (Detained Plaintiffs Against All Defendants)
86. All of the foregoing allegations are re-alleged and incorporated by reference.
87. The First Amendment to the U.S. Constitution guarantees the freedom of speech to all persons—including detainees.
88. The right to retain and consult with an attorney is protected by the First Amendment. “[R]estrictions on speech between attorneys and their clients directly undermine the ability of attorneys to offer sound legal advice” and can violate the First Amendment. Martin v. Lauer, 686 F.2d 24, 32 (D.C. Cir. 1982).
89. Immigrant detainees held in ICE custody possess a First Amendment right to receive legal advice from their retained counsel.
90. “[T]he scope of the First Amendment’s right is determined by balancing the [plaintiff’s] interests in communication with the government’s interest in preventing communication.” Jacobs v. Schiffer, 204 F.3d 259, 265 (D.C. Cir. 2000).
91. Defendants’ policy of continuing to require in-person immigration court hearings and failing to provide secure, confidential remote means of communication between attorneys and their clients are not narrowly tailored to any compelling governmental interest. Defendants have no legitimate, let alone compelling, interest in having Detained Plaintiffs’ immigration hearings be conducted in person or in depriving Detained Plaintiffs of the ability to communicate remotely with their attorneys, especially in light of the fact that reasonable alternatives are readily available.
92. Defendants’ policy of continuing to require in-person immigration court 24

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hearings violate the Detained Plaintiffs’ First Amendment right to receive their counsel’s legal advice.
93. Defendants’ policy of preventing attorneys from meeting with Detained Plaintiffs without providing them with PPE or alternative methods of communication denies Detained Plaintiffs access to their retained counsel and violates Detained Plaintiffs’ First Amendment right to receive their counsel’s legal advice.
SIXTH CLAIM FOR RELIEF: VIOLATION OF THE FIFTH AMENDMENT RIGHT TO SUBSTANTIVE DUE PROCESS
(STATE-CREATED DANGER) (Organizational Plaintiffs Against All Defendants) 94. All of the of the foregoing allegations are re-alleged and incorporated by reference. 95. The Fifth Amendment to the U.S. Constitution provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.” U.S. Const. Amend. V. 96. In some circumstances, “the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199 (1989). 97. The government has a duty to protect an individual from harm “when [government] officials affirmatively act to increase or create the danger that ultimately results in the individual’s harm.” Butera v. District of Columbia, 235 F.3d 637, 651 (D.C. Cir. 2001). 98. Defendants have acted or failed to act in a manner that increases the danger members of the Organizational Plaintiffs face from COVID-19. Defendants have failed to suspend in-person proceedings and in-person filing requirements and have failed to provide access to meaningful remote alternatives, thereby exposing members of the Organizational
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Plaintiffs to increased risk of contracting COVID-19, for which there is no known vaccine, treatment, or cure.
99. Defendants’ conduct with respect to members of the Organizational Plaintiffs’ health and safety shocks the conscience. In spite of the clear risk of continuing to have in-person proceedings and to require in-person filings in the midst of a pandemic, Defendants have made deliberate decisions to risk the health and safety of members of the Organizational Plaintiffs.
100. Defendants’ practice of holding in-person proceedings violates the Due Process Clause.
SEVENTH CLAIM FOR RELIEF: VIOLATION OF THE FIFTH AMENDMENT RIGHT TO SUBSTANTIVE DUE PROCESS
(UNLAWFUL PUNISHMENT) (Detained Plaintiffs Against All Defendants) 101. All of the of the foregoing allegations are re-alleged and incorporated by reference. 102. The Fifth Amendment to the U.S. Constitution provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.” U.S. Const. Amend. V. 103. The Fifth Amendment guarantees detained immigrants the right to be free from unlawful punishment. The government violates this guarantee when conditions of confinement lack a reasonable relationship to any legitimate governmental purpose, i.e. when a custodian’s actions are excessive in relation to their purpose. 104. Conditions of confinement lack a reasonable relationship to any legitimate governmental purpose when the government acts with deliberate indifference in failing to safeguard the health and safety of those in custody. The government acts with deliberate indifference when it exposes detained immigrants to a substantial risk of serious harm, and
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when it knows of or disregards that substantial risk to the detainee’s health or safety. 105. Defendants’ policies of holding in-person proceedings lack a reasonable
relationship to any governmental purpose. 106. Defendants have exposed Detained Plaintiffs to a substantial risk of serious
harm. These policies fail to adequately protect Detained Plaintiffs from the risks of contracting COVID-19. By forcing immigrants to appear in person for their proceedings in the midst of a pandemic, Detained Plaintiffs are subjected to conditions that increase their risk of contracting COVID-19, for which there is no known vaccine, treatment, or cure.
107. Defendants have known or disregarded the substantial risk of harm to Plaintiffs’ health and safety. Defendants are therefore subjecting Detained Plaintiffs to an unreasonable risk of serious harm and punitive conditions, in violation of their rights under the Due Process Clause.
108. Defendants have acted with deliberate indifference to Detained Plaintiffs’ health and safety.
109. Defendants’ practice of continuing to hold in-person proceedings violates the Due Process Clause.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs requests that this Court: (a) Issue injunctive relief ordering Defendants, for the duration of the COVID-19 pandemic, to suspend in-person immigration hearings for detained individuals and to provide robust remote access alternatives for detained individuals who wish to proceed with their hearings; (b) Issue injunctive relief ordering Defendants to guarantee secure and reliable remote
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communication between noncitizens in detention and their legal representatives;
(c) Issue injunctive relief ordering that if Defendants are to require PPE, they must
provide it for detainees and legal representatives;
(d) In the alternative, issue injunctive relief ordering temporary release for detained
immigrants who have inadequate access to alternative means of remote
communication with legal representatives or the immigration court;
(e) Award Plaintiffs all costs incurred in maintaining this action, including reasonable
attorneys’ fees under the Equal Access to Justice Act, as amended, 5 U.S.C. § 504
and 28 U.S.C. § 2412, and on any other basis justified by law; and
(f) Grant Plaintiffs any other and further relief this Court deems just and proper.
Respectfully submitted,
_/s/Sirine Shebaya_________________ Sirine Shebaya (D.C. Bar No. 1019748) Khaled Alrabe* Amber Qureshi* Cristina Velez* NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 (202) 656-4788 sirine@nipnlg.org khaled@nipnlg.org amber@nipnlg.org cristina@nipnlg.org
Attorneys for Plaintiffs
*Pro hac vice motions forthcoming
March 30, 2020 Washington, D.C.
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 Case 1:20-cv-00852-CJN Document 7 Filed 04/08/20 Page 1 of 64

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
-against-
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,

Civil Action No. 1:20-cv-00852 (CJN)

Defendants.

EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND REQUEST FOR HEARING
Pursuant to Federal Rule of Civil Procedure 65 and Local Civil Rule 65.1, Plaintiffs, by and through undersigned counsel, respectfully move the Court for a Temporary Restraining Order against Defendants Executive Office For Immigration Review (“EOIR”), James McHenry in his official capacity, U.S. Immigration and Customs Enforcement (“ICE”), and Matthew Albence in his official capacity, to halt and restrain ongoing irreparable injury to the health of Plaintiffs being caused by Defendant EOIR’s arbitrary and capricious decision to continue to hold in-person immigration court hearings for detained individuals, and conditions associated with such hearings, during the COVID-19 pandemic and to conduct remote hearings and Defendant ICE’s conditions of confinement during the COVID-19 pandemic that deprive detained Plaintiffs of their Constitutional and statutory right to counsel. The specific relief requested is set out in Plaintiffs’ Proposed Temporary Restraining Order that accompanies this Motion. The grounds for the Motion are set forth in the accompanying Memorandum of Law

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and supported by the declarations being filed therewith. An emergency hearing is respectfully requested.
Pursuant to Local Civil Rule 65.1(a), Plaintiffs hereby certify that on April 7, 2020, Plaintiffs’ counsel emailed the Chief of the Civil Division of the U.S. Attorney’s Office for the District of Columbia to provide a courtesy copy of the Complaint and to seek the identity of the Assistant U.S. Attorney or other government attorneys to whom the case had been assigned so that Plaintiffs could communicate with them about scheduling and exchange of papers for their anticipated Temporary Restraining Order. Mr. Daniel Van Horn, Chief of the Civil Division, informed Plaintiffs that the Department of Justice’s Office of Immigration Litigation (“OIL”) will take the lead on this case. Plaintiffs then corresponded with Mr. Brian C. Ward, Senior Litigation Counsel in OIL, to provide a courtesy copy of the Complaint and to seek the identity of who would be handling the case so that Plaintiffs could confer regarding scheduling. Mr. Ward responded that his office was still determining who would be handling the case, but conferred with Plaintiffs regarding a briefing schedule. The parties agreed that Defendants would file its opposition by the end of the day on Monday, April 13, 2020, Plaintiffs would file their reply by the end of the day on Tuesday, April 14, 2020, and a Hearing should then be scheduled as expeditiously thereafter as the Court may permit.
Plaintiffs accordingly respectfully request the Court enter a scheduling order providing for the following expedited briefing schedule, as set out in Plaintiff’s Proposed Scheduling Order:
1. Defendants shall file a Memorandum of Law in Opposition to Plaintiffs’ Motion for Temporary Restraining Order on Monday, April 13;
2. Plaintiffs shall file a Reply on Tuesday, April 14; and
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3. A hearing on Plaintiffs’ Motion for Temporary Restraining Order shall be set for April 15, 2020, or as soon as possible thereafter, at a time set by the Court, to occur by audio teleconference or video teleconference to be initiated either by the Court or by Plaintiffs.
If the Court is unable to hear this Motion expeditiously, Plaintiffs respectfully request that the Court enter emergency relief without a hearing in the form of Paragraphs 1(a), 2, and 3(a) of the Proposed Order until such time as this Motion may be heard and further order of the Court.
Plaintiffs provided true and correct copies of Plaintiffs’ Complaint, Emergency Motion for Temporary Restraining Order, Memorandum of Law in Support of Emergency Motion for Temporary Restraining Order, Proposed Temporary Restraining Order, and all other papers filed with the Court on or before April 8, 2020 to Mr. Ward and Mr. Van Horn. Plaintiffs have also filed this Motion and all supporting and accompanying papers through the Court’s ECF electronic filing system and on April 8, 2020, will mail the above-listed documents by overnight Priority Express Mail to:
• Executive Office for Immigration Review, Board of Immigration Appeals, Office of the Chief Clerk, 5107 Leesburg Pike, Suite 2000, Falls Church, VA 22041.
• Immigration and Customs Enforcement, 500 12th St, S.W., Washington, D.C. 20536
• Civil Process Clerk, United States Attorney’s Office, 555 Fourth Street, N.W., Washington, D.C. 20530.
• Attorney General of the United States, U.S. Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, DC 20530.
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Dated: April 8, 2020 Washington, D.C.

Respectfully submitted,
/s/ Sirine Shebaya Sirine Shebaya (D.C. Bar No. 1019748) Khaled Alrabe* Amber Qureshi* Cristina Velez* NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 (202) 656-4788 sirine@nipnlg.org khaled@nipnlg.org amber@nipnlg.org cristina@nipnlg.org
*Pro hac vice motions forthcoming
/s/ Matthew D. Slater Matthew D. Slater (D.C. Bar No. 386986) Elsbeth Bennett (D.C. Bar No. 1021393) CLEARY GOTTLIEB STEEN & HAMILTON LLP 2112 Pennsylvania Avenue, N.W. Washington, D.C. 20037-3229 T: 202-974-1500 F: 202-974-1999 mslater@cgsh.com ebennett@cgsh.com
Jennifer Kennedy Park* Lina Bensman* CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, New York 10006 T: 212-225-2000 F: 212-225-3999 jkpark@cgsh.com lbensman@cgsh.com
Attorneys for Plaintiffs
*Pro hac vice motions forthcoming

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
-against-
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,

Civil Action No. 1:20-cv-00852 (CJN)

Defendants.

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Case 1:20-cv-00852-CJN Document 7 Filed 04/08/20 Page 6 of 64
TABLE OF CONTENTS Page
INTRODUCTION ......................................................................................................................1 FACTUAL BACKGROUND......................................................................................................3
A. COVID-19 Has Caused A Global Pandemic That Requires Immediate Action To Preserve Life .....................................................................................................5
B. In-Person Hearings Contribute To The Spread Of COVID-19 And Put Countless Lives At Risk..........................................................................................8
C. In The Absence Of Uniform, Reasonable EOIR Policies, Inconsistent And Chaotic Responses By Individual Immigration Courts Continue To Put Lives At Risk........................................................................................................16
D. Reasonable Measures To Protect Public Health Have Already Been Implemented By Non-Immigration Courts And Can Be Quickly Adopted By Immigration Courts...............................................................................................20
E. In Addition To Imperiling Public Health, ICE And EOIR Policies Impermissibly Interfere With Detained Persons’ Right To Counsel.......................22
F. In The Face Of Repeated Requests For Action, ICE and EOIR Have Refused To Correct These Failures .....................................................................................26
LEGAL STANDARD ...............................................................................................................28 ARGUMENT ............................................................................................................................ 29 I. Plaintiffs Are Likely To Succeed On The Merits ...........................................................30
A. Plaintiffs Are Likely To Succeed On Their Claims That Defendants’ Agency Actions Violate The APA .....................................................................................30
B. Plaintiffs Are Likely To Succeed On Their Claim That Defendants’ Policies Restrict Access To Counsel In Violation Of Constitutional And Statutory Rights ...................................................................................................................34
II. Failure To Implement The Requested Relief Will Immediately And Irreparably Injure Plaintiffs ........................................................................................................................37
III. The Balance Of Equities Weighs In Plaintiffs’ Favor.....................................................41 IV. The Requested Relief Is In The Public Interest ..............................................................42 CONCLUSION ......................................................................................................................... 45
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TABLE OF AUTHORITIES

Cases

Page(s)

Basank v. Decker, No. 20-cv-2518 2518, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020) ...................................40

Biwot v. Gonzales, 403 F.3d 1094 (9th Cir. 2005) .............................................................................................35

Castillo v. Barr, No. 20-cv-00605, 2020 WL 1502864, (C.D. Cal. Mar. 27, 2020)..............................39-40, 43

Castillo v. Nielsen, No. 5:18-cv-01317, 2018 WL 6131172 (C.D. Cal. June 21, 2018).......................................36

Chhoeun v. Marin, 306 F.Supp.3d 1147 (C.D. Cal. 2018)..................................................................................36

Citizens for Resp. & Ethics in Wash. v. Cheney, 577 F. Supp. 2d 328 (D.D.C. 2008) ............................................................................... 28, 29

Coronel v. Decker, No. 20-cv-2472, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020)...................................... 38, 43

Cty. of Los Angeles v. Shalala, 192 F.3d 1005 (D.C. Cir. 1999) ...........................................................................................34

Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356 (D.C. Cir. 1999) .............................................................................................41

Dist. Hosp. Partners, L.P. v. Burwell, 786 F.3d 46 (D.C. Cir. 2015)...............................................................................................34

F.T.C. v. Dean Foods Co., 384 U.S. 597 (1966) ............................................................................................................29

Federal Defenders of New York, Inc. v. Federal Bureau of Prisons, No. 19-1778, 2020 WL 1320886 (2d. Cir. Mar. 20, 2020) ...................................................33

Gomez v. Kelly, 237 F. Supp. 3d 13 (D.D.C 2017) ........................................................................................28

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Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013) ....................................................................................... 40, 44
Iavorski v. I.N.S., 232 F.3d 124 (2d Cir. 2000) ................................................................................................45
Innovation Law Lab v. Nielsen, 310 F. Supp. 3d 1150 (D. Ore. 2018) .......................................................33, 35-36, 36, 40, 42
League of Women Voters of U.S. v. Newby, 838 F.3d 1 (D.C. Cir. 2016).................................................................................................45
Leslie v. Attorney General, 611 F.3d 171 (3d Cir. 2010) ................................................................................................35
Louis v. Meissner, 530 F. Supp. 924 (S.D. Fla. 1981) .......................................................................................36
Make the Road N.Y. v. McAleenan, 405 F. Supp. 3d 1 (D.D.C. 2019) .........................................................................................33
Maldanado-Perez v. INS, 865 F.2d 328 (D.C. Cir. 1989) .............................................................................................35
Martinez v. Nielsen, 341 F. Supp. 3d 400 (D.N.J. 2018) ......................................................................................33
Mills v. D.C., 571 F.3d 1304 (D.C. Cir. 2009) ...........................................................................................40
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ..............................................................................................................34
Nunez v. Boldin, 537 F. Supp. 578 (S.D. Tex. 1982) ......................................................................................36
O.A. v. Trump, 404 F. Supp. 3d 109 (D.D.C. 2019) .....................................................................................33
O.M.G. v. Wolf, No. 20-cv-00786 (D.D.C. Mar. 30, 2020) .......................................................... 11, 34, 39, 42
Open Communities All. v. Carson, 286 F. Supp. 3d 148 (D.D.C. 2017) .....................................................................................41
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Orantes–Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990) ...............................................................................................36
R.I.L-R v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) ............................................................................ 41-42, 45
Reno v. Flores, 507 U.S. 292 (1993) ............................................................................................................34
Rios-Berrios v. INS, 776 F.2d 859 (9th Cir. 1985) ...............................................................................................36
Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) .............................................................................................44
S.E.C. v. Whitman, 613 F. Supp. 48 (D.D.C. 1985) ............................................................................................35
Torres v. United States Dep’t of Homeland Sec., 411 F. Supp. 3d 1036 (C.D. Cal. 2019)................................................................................36
Trump v. Committee on Ways and Means, 415 F. Supp. 3d 38 (D.D.C. 2019) .......................................................................................29
Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977) .............................................................................................29
Weinberger v. Romero-Barcelo, 456 U.S. 305. (1982) ...........................................................................................................37
Zadvydas v. Davis, 533 U.S. 678 (2001) ............................................................................................................34
Rules and Statutes 8 C.F.R. § 1240.3......................................................................................................................35 5 U.S.C. § 551(13) ....................................................................................................................33 5 U.S.C. § 555(b) ......................................................................................................................35 5 U.S.C. § 702...........................................................................................................................33 5 U.S.C. § 704...........................................................................................................................33
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Case 1:20-cv-00852-CJN Document 7 Filed 04/08/20 Page 10 of 64 5 U.S.C. § 706(2) ........................................................................................................... 33, 33-34 8 U.S.C. § 1252(f).....................................................................................................................33 8 U.S.C. § 1362.........................................................................................................................35 28 U.S.C. § 1651(a) ..................................................................................................................29
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INTRODUCTION Because of the immediate and grave risks to public health arising from the COVID-19 pandemic, this motion for a temporary restraining order seeks a brief pause of in-person hearings in immigration courts for detained persons, during which time Defendants Executive Office for Immigration Review (“EOIR”) and Immigration and Customs Enforcement (“ICE”) would implement policies, practices, and procedures to enable hearings to proceed remotely and safely, and in a manner consistent with due process and protective of attorney-client privilege. Urgent relief is required because, in the absence of a uniform EOIR and ICE policy, Plaintiffs face ad hoc practices and orders implemented by individual immigration courts, including the possibility of in-person hearings in 58 of the nation’s 69 immigration courts,1 and remote hearing participation is not reasonably available to them. This unnecessarily endangers all participants in the immigration system, including detained immigrants, their counsel, court and detention personnel, and all members of the public with whom they cross paths. In addition, attorney-client communications have been so obstructed as to effectively deny detained immigrants their right to counsel. Plaintiffs are individuals detained in ICE facilities and several organizations whose members include attorneys representing current and prospective clients detained in ICE facilities. See Ex. 15, Greenstein Decl. ¶ 2, Ex. 24, Voigt Decl. at 1, Ex. 29, Tolchin Decl. ¶¶ 3–6. Their health, the health of every person with whom they have contact, and thus the health of the general public, is imperiled by the continuation of in-person hearings. As documented in the
1 See Appendix A;. Appendix A summarizes the various standing orders available on EOIR’s website. See Executive Office for Immigration Review, EOIR Operational Status During Coronavirus Pandemic, https://www.justice.gov/eoir/eoir-operational-status-during-coronaviruspandemic (last updated Apr. 3, 2020). Statistics cited in this filing, unless otherwise noted, are valid as of 6:30 p.m. EDT on April 6, 2020.
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accompanying declarations of detained individuals and attorneys who represent them, the unavailability of adequate facilities for remote hearings and for remote consultation with counsel deprives detained immigrants of their rights to due process and assistance of counsel and prevents counsel from performing their duties as provided by law and consistent with public health.
Over the past month, Plaintiffs have sought, and Defendants have declined to adopt, policies to address these deprivations. Plaintiffs are thus likely to prevail on their claims under the Administrative Procedure Act (“APA”), as well as on their claims as to important statutory and constitutional rights. The evidence Plaintiffs are submitting also demonstrates that they have suffered and will continue to suffer irreparable injuries, the gravity of which cannot be overstated given the current public health emergency, outweighing any harm to Defendants from the temporary injunction requested. The public interest demands this relief to help mitigate the risk of rampant infection in detention facilities and the propagation of infection through the court system to the general public.
To address the unique threat posed by the COVID-19 pandemic, the proposed Temporary Restraining Order would suspend in-person hearings during the health emergency and require EOIR and ICE to adopt policies and procedures to enable the conduct of remote hearings consistent with Plaintiffs’ constitutional and statutory rights. The injunction has two complementary components:
First, Defendant EOIR, would be required to: • Suspend all in-person non-bond hearings and immediately convert all in-person bond hearings to remote hearings; • Promulgate policies and procedures that, at a minimum, permit remote court appearances by all necessary participants (e.g., court and court personnel, detained persons, counsel, interpreters, transcription); and
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• Permit continuances as of right due to COVID-19. Second, to make such relief effective, Defendant ICE would be required to:
• Promulgate policies and procedures enabling remote interconnection by and with all necessary participants in court appearances;
• Facilitate communications between detained persons and immigration courts to enable the submission of requests for rescheduling and for continuance; and
• Develop policies, procedures, and facilities that will enable those who are detained to obtain, and counsel to provide, legal advice remotely and without monitoring, and with adequate protection of human health. FACTUAL BACKGROUND
The United States is in the midst of a public health crisis caused by the COVID-19 pandemic. The Trump Administration has estimated that, if there is active mitigation, between 100,000 and 240,000 people may die.2 Given the gravity of the threat, nationwide, 311 million people across more than 40 states have been directed to stay at home, and the operation of nonessential businesses has been widely suspended.3 To reduce the rate of new infections, President Donald J. Trump’s Coronavirus Task Force and the Centers for Disease Control and Prevention (“CDC”) have recommended social distancing (maintaining at least six feet of separation between individuals) and specifically urged “alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission.”4
2 Alex Leary, et al., White House Projects 100,000 to 240,000 U.S. Coronavirus Deaths, The Wall Street Journal (Apr. 1, 2020), https://www.wsj.com/articles/chinas-coronavirus-countexcluded-infected-people-with-no-symptoms-11585650226. 3 Sarah Mervosh et al., See Which States and Cities Have Told Residents to Stay at Home, The New York Times (Apr. 3, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-stayat-home-order.html. 4 Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 201 (COVID-19) in Correctional and Detention Facilities(Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf;
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Consistent with these guidelines, state and federal courts across the country—including the United States Court of Appeals for the District of Columbia and the United States District Court for the District of Columbia—have issued clear policies postponing in-person hearings due to the pandemic and allowing for hearings to proceed remotely.5
In the face of all this, and notwithstanding a number of confirmed COVID-19 cases among detained persons and staff members at detention centers and immigration courts,6 federal immigration authorities have not taken consistent and sufficient action to decrease the risk to detained persons, counsel, and the public. Defendant EOIR has refused to issue a policy postponing in-person appearances for detained individuals in immigration courts or providing meaningful remote access alternatives. Only about half of the open immigration courts have a uniform policy allowing for remote hearings. The inconsistent and often inadequate responses of individual immigration courts have already had devastating consequences. For example, a New York-based immigration attorney tested positive for COVID-19 on April 2, 2020, after appearing at the Federal Plaza Immigration Court on March 11; her symptoms began within two weeks of that appearance. See Ex. 1, Arce Decl. at 1–2. Her eighty-year old mother, whom she believes she likely exposed to the virus, fell seriously ill, has since been hospitalized, and is awaiting COVID-19 test results. Id. at 1–2 (“My mother's health continues to spiral downward. This week she was diagnosed with pneumonia and was tested for the virus; her results are not in yet,
U.S. Immigrations and Customs Enforcement, ICE Guidance on COVID-19, https://www.ice.gov/coronavirus (accessed Apr. 6, 2020). 5 See The Brennan Center for Justice, Courts’ Reponses to the Covid-19 Crisis (Apr. 2, 2020), https://www.brennancenter.org/our-work/research-reports/courts-responses-covid-19-crisis. 6 Reuters, As Pandemic Rages, U.S. Immigrants Detained in Areas With Few Hospitals, The New York Times (Apr. 3, 2020), https://www.nytimes.com/reuters/2020/04/03/us/03reutershealth-coronavirus-usa-detention-insight.html.
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but I can't help but blame myself for her illness. If perhaps I had not been at 26 Federal Plaza on March 11th, I would have not exposed my family to the virus.”).
Likewise, ICE has failed to provide individuals detained in its facilities adequate means to communicate remotely (and safely) with current and prospective counsel, and has effectively prevented in-person meetings with counsel at some facilities by requiring counsel to comply with impossible requirements regarding the wearing of scarce personal protective equipment. The result is that even if EOIR uniformly allowed remote hearings, persons in ICE detention could not avail themselves of them, and would, as a practical matter, be deprived of their constitutional and statutory right to counsel.
A. COVID-19 Has Caused A Global Pandemic That Requires Immediate Action To Preserve Life COVID-19 is a highly contagious novel coronavirus that has reached pandemic
proportions.7 It is transmitted through respiratory droplets, has a long incubation period, and can be spread even by persons who are completely asymptomatic.8 It may also be transmitted through contact with contaminated surfaces or objects, which can remain contaminated for days.9
7 Dr. Tedros Adhanom Ghebreyesus, WHO Director-General’s opening remarks at the media briefing on COVID-19 - 11 March 2020, World Health Organization (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-themedia-briefing-on-covid-19---11-march-2020. 8 The director of the CDC recently stated that as many as 25% of people infected with COVID19 may not show symptoms. Apoorva Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, The New York Times (Mar. 31, 2020), https://www.nytimes.com/2020/03/31/health/coronavirus-asymptomatic-transmission.html; Centers for Disease Control and Prevention, Healthcare Professionals: Frequently Asked Questions and Answers (Mar. 30, 2020), https://www.cdc.gov/coronavirus/2019ncov/hcp/faq.html (describing up to a 14 day incubation period). 9 Centers for Disease Control and Prevention, Person-to-person Spread (Apr. 2, 2020) https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html.
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Creating sustained distance between people has therefore been a major focus of public health
efforts to slow the rate of transmission.
On March 13, 2020, President Trump declared a national emergency concerning COVID19.10 Many states have likewise declared state emergencies.11 At least 44 states and the District of Columbia have implemented stay-at-home orders.12 As of April 6, 2020, COVID-19 has infected more than 1.2 million individuals worldwide and killed more than 69,000.13 In the United States alone, there have been over 364,000 confirmed cases and over 10,700 deaths.14 The numbers continue to grow exponentially.15 Faithful implementation of CDC social
distancing guidelines is necessary to prevent the number of deaths from running dramatically higher.16
10 Donald J. Trump, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, The White House (Mar. 13, 2020), https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergencyconcerning-novel-coronavirus-disease-covid-19-outbreak/. 11 See, e.g., Office of the Governor of Kansas, Governor Issues Emergency Declaration on COVID-19 (Mar. 12, 2020), https://governor.kansas.gov/governor-issues-emergency-declarationfor-covid-19/. 12 Alicia Lee, These states have implemented stay-at-home orders. Here’s what that means for you, CNN (Apr. 3, 2020), https://www.cnn.com/2020/03/23/us/coronavirus-which-states-stay-athome-order-trnd/index.html. 13 Regan et al., Coronavirus Pandemic Upends Daily Life, CNN (Apr. 6, 2020), https://www.cnn.com/world/live-news/coronavirus-pandemic-04-06-20/index.html. 14 Sergio Hernandez, et al., Tracking Covid-19 Cases in the US, CNN (Apr. 6, 2020), https://www.cnn.com/interactive/2020/health/coronavirus-us-maps-and-cases/. 15 Alan Suderman et al., Trump Defends Extending Virus Guidelines as Spread Continues, The New York Times (Mar. 30, 2020), https://www.nytimes.com/aponline/2020/03/30/us/politics/apus-virus-outbreak-washington.html?searchResultPosition=1. 16 Ex. 27, Jha Decl. ¶ 7; Bobby Allyn, Fauci Estimates that 100,000 to 200,000 Americans Could
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COVID-19 can result in respiratory failure, kidney failure, and death. Infected individuals who survive the disease may still suffer severe damage to their lungs, heart, liver, and other organs, resulting in protracted recovery periods, including extensive rehabilitation from possible neurological damage and loss of respiratory capacity.17 Older individuals and those with certain medical conditions (e.g., asthma, diabetes, heart or lung conditions),18 including a number of Organizational Plaintiffs’ members, their family members, and their clients, and including some of the Detained Plaintiffs, face the greatest risk of serious illness or death from COVID-19; the CDC has specifically advised such individuals to stay at home.19 Thus, members of the Organizational Plaintiffs who wish to visit detained clients are unable to do so. See, e.g., Ex. 2, Ehrlich Decl. ¶ 1 (“I feel unable to visit the [Elizabeth Detention Center (“EDC”)], even if the EDC would again permit such visits, since my age places me in the high risk group for death from COVID-19”); Ex. 3, Church Decl. ¶¶ 8–9 (describing clients with asthma and her personal reluctance to appear in court because she lives with an immunosuppressed family member); Ex. 4, Lopez Decl. ¶ 19 (describing clients with HIV and severe asthma); Ex. 5, Rodriguez Cedeno
Die from Coronavirus, NPR (Mar. 29, 2020), https://www.npr.org/sections/coronavirus-liveupdates/2020/03/29/823517467/fauci-estimates-that-100-000-to-200-000-americans-could-diefrom-the-coronavirus. 17 Centers for Disease Control and Prevention, Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) (Mar. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html. 18 Certain underlying medical conditions increase the risk of serious COVID-19 disease for individuals of any age. See Centers for Disease Control and Prevention, People Who Are at Higher Risk for Severe Illness (Apr. 2, 2020), https://www.cdc.gov/coronavirus/2019-ncov/needextra-precautions/people-at-higher-risk.html. 19 Centers for Disease Control and Prevention, Older Adults (Mar. 21, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html.
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Decl. ¶ 9 (describing asthma and respiratory conditions); Ex. 34, Sud-Deveraj Decl. ¶ 7 (describing concerns over appearing in court due to diabetes).
Even young and healthy individuals who contract COVID-19 face significant health risks, and many require hospital care. The public health concerns are compounded by potential overburdening of existing healthcare infrastructure and personnel; many localities do not have sufficient medical capabilities to handle significant surges in patient numbers (with ripple effects even for non-COVID-19 patients).20
B. In-Person Hearings Contribute To The Spread Of COVID-19 And Put Countless Lives At Risk In response to the pandemic, EOIR has postponed all hearings for non-detained
individuals scheduled through May 1, 2020,21 but has not done the same for those who are detained.22 Despite the spread of COVID-19 in detention facilities and in immigration courts, and notwithstanding the CDC’s warning that courthouses are especially vulnerable to spread of the virus,23 as of April 6, 2020, 58 of the 69 immigration courts were open for detained hearings, and only 39 locations had court-wide standing orders allowing hearings to occur telephonically.
20 See, e.g., Somini Sengupta, With Virus Surge, Dermatologists and Orthopedists Are Drafted for the E.R., The New York Times (Apr. 3, 2020), https://www.nytimes.com/2020/04/03/nyregion/new-york-coronavirus-doctors.html. 21 Executive Office for Immigration Review, EOIR Operational Status During Coronavirus Pandemic, https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic (last updated Apr. 6, 2020). 22 Among those who are “detained” for this purpose are young children. Ex. 30, Gahng Decl. ¶¶ 4–8. 23 See Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 201 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidancecorrectional-detention.pdf.
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See Appendix A.24 Proceeding with in-person hearings at this time creates unnecessary risks of virus
transmission for all who are involved (court personnel, detained persons, transporters, counsel, interpreters, etc.), which in turn poses a risk of transmission both within detention facilities and to the general population—precisely what social distancing guidelines are intended to prevent. Moreover, because EOIR has not provided for COVID-19-related continuances as of right, counsel are forced to meet in person with their clients (including because ICE has failed to enable adequate remote contact between attorneys and detained persons) in unsterile and unsafe conditions in order to prepare for hearings and motions. There have also been reports of ICE bringing individuals with COVID-19 symptoms into detention centers. See, e.g., Ex. 6, Rivera Decl. ¶ 10; Ex. 7, Saenz Decl. ¶¶ 1–5.
Both the CDC and the World Health Organization (“WHO”) have warned that detention centers are tinderboxes in which COVID-19 can spread like wildfire.25 WHO experts have warned that outbreaks in detention facilities would lead to “huge mortality rates.”26 According
24 An additional four locations have some, but not all, judges allowing telephonic hearings pursuant to a standing order. 25 World Health Organization, Preparedness, Prevention and Control of COVID-19 in Prisons and Other Places of Detention (Mar. 15, 2020) at 2, http://www.euro.who.int/__data/assets/pdf_file/0019/434026/Preparedness-prevention-andcontrol-of-COVID-19-in-prisons.pdf; Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 201 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/downloads/guidance-correctional-detention.pdf. 26 Hannah Summers, ‘Everyone Will be Contaminated’ Prisons Face Strict Coronavirus Controls, The Guardian (Mar. 23, 2020), https://www.theguardian.com/globaldevelopment/2020/mar/23/everyone-will-be-contaminated-prisons-face-strict-coronaviruscontrols.
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to ICE’s website, as of April 6, 2020, there were 13 confirmed cases among those in ICE custody and 7 confirmed cases among ICE employees and personnel working in ICE detention facilities, spread across 13 detention facilities.27 These ICE numbers do not include more recent cases, such as employees who tested positive at Stewart Detention Facility in Georgia28 and at Otay Mesa Detention Center in California.29
Detention facilities have a history of failing to contain disease outbreaks; so far, COVID19 appears to be no different.30 According to a statement from the National Association of Immigration Judges (“NAIJ”), a voluntary organization of U.S. Immigration Judges, “[f]rom West Coast to East Coast, court after court has had to grapple with incident reports of COVID-19 exposure or positive test results of staff and the public. Examples include the Los Angeles, San Francisco, Aurora (Colorado), Elizabeth (New Jersey), Varick (New York), Krome (South Florida), Seattle, Conroe (Texas), LaSalle (Louisiana), Fishkill (New York), Ulster (New York), Boston, Newark, and San Antonio Immigration Courts.” Ex. 32, NAIJ Statement Re
27 U.S. Immigration and Customs Enforcement, ICE Guidance on COVID-19, https://www.ice.gov/coronavirus. 28 Jeremy Redmon, Georgia Immigration Detention Employee Tests Positive for Coronavirus, The Atlanta Journal-Constitution (Mar. 31, 2020), https://www.ajc.com/news/breakingnews/georgia-immigration-detention-employee-tests-positive-forcoronavirus/scDYEmROtOSowK2ULLPt5K/. 29 Kate Morrissey & Andrea Lopez-Villafaña, Employee at Otay Mesa Detention Center tests positive for COVID-19, The San Diego Union Tribune (Mar. 31, 2020), https://www.sandiegouniontribune.com/news/immigration/story/2020-03-31/employee-at-otaymesa-detention-center-being-tested-for-covid-19-after-showing-symptoms. 30 For example, a recent outbreak of mumps among individuals in ICE custody grew from 5 cases in two facilities to 898 cases in 57 facilities within a year. Leung et al., Notes from the Field: Mumps in Detention Facilities that House Detained Migrants - United States, September 2018-August 2019, Centers for Disease Control and Prevention (Aug. 30, 2019), https://www.cdc.gov/mmwr/volumes/68/wr/mm6834a4.htm?s_cid=mm6834a4_x.
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Coronavirus Detained Dockets (“NAIJ Statement”), Mar. 30, 2020. At least one court has
already had to order the Government to take necessary measures to protect detained persons from
the spread of COVID-19.31
Furthermore, the amount of movement and human interaction required to conduct an in-
person hearing is enormous, and it puts not only those directly involved at serious risk, but those
who later come in contact with those direct participants, and those who come in contact with the
indirect contacts, and so on. The following routinely occurs in connection with any given in-
person immigration hearing:
• The judge, courthouse staff, interpreters, witnesses, attorneys, security officers, the detained person’s family members, and others all travel to the immigration court, sometimes on public transportation. See Ex. 9, Terezakis Decl. ¶¶ 10, 14, 39–45; Ex. 10, Morgan Decl. ¶ 5.
• The detained person is transported to the immigration court by ICE employees in conditions that do not allow for social distancing. See Ex. 10, Morgan Decl. ¶ 5 (client was transported to court along with four other detained persons and three guards).
• Groups of detained persons and others, including attorneys and witnesses, often wait in large groups and in close proximity for their hearings to begin. See Ex. 3, Church Decl. ¶¶ 10–11; Ex. 10, Morgan Decl. ¶ 5 (“The [five] detainees were all seated together on a bench at the back of the courtroom” before their hearings); Ex. 30, Gahng Decl. ¶ 9.
• During hearings, participants—including detained persons, attorneys, witnesses, security officers, and judges—are often in close proximity to one another. See Ex. 3, Church Decl. ¶ 11; Ex. 23, Brown Decl. ¶ 33; Ex. 10, Morgan Decl. ¶ 8. Papers are passed back and forth among participants in a hearing.32 See Church
31 Minute Order, O.M.G. v. Wolf, 1:20-cv-00786 (D.D.C. Mar. 30, 2020) (granting temporary restraining requiring Government to provide detained persons “CDC-compliant protocols and protections for congregate settings in civil-detention facilities” to prevent the spread of COVID19).
32 Studies have shown that the virus that causes COVID-19 can remain on porous surfaces like cardboard for up to 24 hours. National Institutes of Health, New coronavirus stable for hours on surfaces (Mar. 17, 2020), https://www.nih.gov/news-events/news-releases/new-coronavirusstable-hours-surfaces.
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Decl. ¶ 17; Ex. 32, NAIJ Statement at 2. The potential consequences for those forced to attend immigration hearings in person are devastating. For example, one immigration attorney found out three days after attending a hearing in immigration court in Boston that a family member who lives with her tested positive for COVID-19. See Ex. 3, Church Decl. ¶ 17. She reported the results to the immigration court the same day, but not before having unknowingly potentially exposed not only two detained persons, but also judges, court staff, and other people in the building while attending four different hearings.33 At 5:27 p.m. the same day, EOIR reported via Twitter that the Boston Immigration Court would be closed on Friday, April 3, 2020; it reopened the following Monday.34 Given the shortage of testing capacity nationwide, COVID-19 cases in immigration courts and among participants at in-person hearings are likely far more widespread than has been reported.35 Not only does every in-person hearing increase the risk to public health, but the work required to prepare for any hearing also increases that risk; yet under current conditions, immigration attorneys are unable to mitigate that risk without sacrificing their ability to effectively represent their client, which puts them in an impossible position. For example,
33 Shannon Dooling, Boston Immigration Court Closes for 1st Time During Crisis After Attorney Reports COVID-19 Contact, WBUR (Apr. 3, 2020), https://www.wbur.org/news/2020/04/03/boston-immigration-court-closes-coronavirus. 34 See EOIR (@DOJ_EOIR), Twitter (Apr. 2, 8:27 P.M.), https://twitter.com/DOJ_EOIR/status/1245870544651554816. 35 Donald Judd & Daniella Diaz, America Is Ramping Up Covid-19 Testing, But a Shortage of Supplies Is Limiting Capabilities, CNN (Mar. 28, 2020), https://www.cnn.com/2020/03/28/politics/coronavirus-swabs-supplies-shortagestates/index.html; see also Ex. 12, Lelli Decl. ¶ 4 (describing lack of testing at clients’ detention centers).
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immigration attorney Mary Jane Miller filed a motion in Otay Mesa Immigration Court on March 18, 2020 to appear telephonically for a hearing scheduled for March 26.36 Ms. Miller’s client has an underlying autoimmune disorder, and prior to filing her motion, Ms. Miller had visited her client on March 10 to prepare for the upcoming hearing and learned her client was ill with what appeared to be a bad cold and fever. Ex. 11, Miller Decl. ¶ 6. On March 16, 2020, San Diego County issued a health order (effective March 17) prohibiting all public or private gatherings of 50 or more people, closing all restaurants for on-site dining and encouraging all businesses to implement social distancing, increased sanitation standards, and to make every effort to use telecommuting for their workforces. Ms. Miller “no longer felt it prudent to visit her client at Otay Mesa, for both her health and safety and mine.” Id. ¶ 7. Without in-person visits, Ms. Miller’s communication with her client broke down. At Otay Mesa, it is not possible to have confidential calls with detained persons, and all calls must be initiated by the detained person and at the detained person’s expense. At least twice, Ms. Miller has been unable to even get a message through to her client. Id. ¶ 10. Ms. Miller mailed relevant briefing to her client, after determining in-person visits were unsafe, only to have a properly addressed envelope (i.e., addressed to the detention center and including her client’s name and Alien number) returned to her marked “RETURN TO SENDER NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD.” Id. ¶ 11; see also Ex. 13, Bittner Decl. ¶¶ 12–26 (describing need to travel long distances to visit clients in person to prepare for hearings); Ex. 23, Brown Decl. ¶¶ 17–18 (“Filings are expected to be completed . . . in all cases before the [Denver Immigration C]ourt.”);
36 On March 30, the day the Complaint in this case was filed, Otay Mesa Immigration Court voluntarily adopted a standing order permitting telephonic appearances without prior approval and without filing a motion in advance. On March 31, 2020 it was reported that an employee at Otay Mesa tested positive for COVID-19. See Morrissey & Lopez-Villafaña, Employee at Otay Mesa Detention Center tests positive for COVID-19.
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Ex. 30, Gahng Decl. ¶ 12–14. Moreover, attorneys have experienced significant impediments to submitting and
receiving decisions on motions for telephonic appearances and continuances, further limiting their ability to address COVID-19 risks on their own and creating serious risk that detained persons, their counsel, and others will continue to appear at courthouses for in-person hearings. For example, immigration attorney George Terezakis represented a detained client with a master calendar hearing scheduled for Friday, March 20, 2020 at 8:30 a.m. at the Varick Street Immigration Court in New York City, Ex. 9, Terezakis Decl. ¶ 36, a court that continues not to have a court-wide standing order permitting remote participation in hearings.37 (New York City is the nation’s epicenter of the outbreak, with a death from the virus occurring approximately every two and a half minutes.38) Mr. Terezakis’s client’s relief application and his request for a telephonic hearing were delivered at approximately noon on March 18, 2020. Calls to the clerk’s office seeking a ruling on the request for a telephonic hearing went unanswered. Id. Mr. Terezakis met with his client’s mother on March 19, 2020, to prepare for the hearing the following day. His client’s mother insisted on attending the hearing in person. Mr. Terezakis gave her a letter to deliver to the judge, reiterating Mr. Terezakis’s request to appear telephonically and stating he was on standby to appear telephonically. Id. ¶ 37. (Mr. Terezakis
37 And the only judge to have a standing order, Judge Mart, only permits telephonic appearances for master calendar hearings (i.e., the first hearing in removal proceedings). United States Department of Justice, Standing Order of Immigration Judge H. Kevin Mart Relating to Telephonic Appearances at Master Calendar Hearings, (Mar. 21, 2020), https://www.justice.gov/eoir/page/file/1260276/download. 38 Alan Feuer, Coronavirus in N.Y.: Toll Soars to Nearly 3,000 as State Pleads for Aid, The New York Times (Apr. 3, 2020), https://www.nytimes.com/2020/04/03/nyregion/coronavirus-newyork-death-toll.html.
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had determined that for health reasons he should not attend in person, out of a need to minimize his potential exposure or unknowing exposure of others. Id. ¶ 38.) His client’s mother took public transportation to the court, including light rail and the subway, and waited in the waiting room with other family members of detained individuals and attorneys,39 only to learn that visitors would be denied entry to the courtroom; the hearing was ultimately conducted telephonically. Id. ¶¶ 39–41. His client’s mother returned home, again using public transportation. Id. ¶ 41. On March 28, 2020, his client’s mother sought medical attention for difficulty breathing, and was told she had COVID-19. Id. ¶ 42; see also Ex. 9, Terezakis Decl. ¶¶ 32–33 (describing Mr. Terezakis’s experience representing another detained client where the court repeatedly refused to grant a continuance despite Mr. Terezakis’s explanation that he was living with a family member recently returned from Spain, an epicenter of the virus, and ultimately granting it only after his client had already been transported to court).
Additionally, Nick Steiner, a Staff Attorney for the American Civil Liberties Union, filed an administrative office complaint with the Office of the Chief Immigration Judge on behalf of two immigration attorneys because a judge in Baltimore Immigration Court had refused to grant motions for continuances due to COVID-19 and penalized a respondent for failure to appear by granting an order of removal in absentia. See Ex. 31, Steiner Decl. ¶ 3. One of these attorneys was told by the immigration judge’s clerk that the judge was “inclined to deny all motions for continuance made on the basis of COVID-19.” See id. ¶ 5 (emphasis added). This attorney was especially concerned about appearing in-person for the immigration proceeding since the attorney is “at higher risk of severe illness if they contract COVID-19.” See id. Apparently lacking any concern for this attorney’s predicament, the immigration judge cited the fact that he
39 The chairs are connected to one another in the waiting room. Ex. 9, Terezakis Decl. ¶ 40.
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himself is older than the attorney in denying the motion to continue. See id. These attorneys did not want to reveal their names for fear of retribution. Id. ¶ 4. Mr. Steiner has received complaints of similar denials of motions to continue at the immigration court in Arlington, including an instance where an attorney was “required to physically come to the [court], despite being sick with a cough and a fever” since her request to postpone the hearing and appear telephonically was denied. See id. ¶ 10.
The experiences of these immigration attorneys are not unique. See, e.g., Ex. 12, Lelli Decl. ¶¶ 5–7; Ex. 13, Bittner Decl. ¶¶4–7, 12–13; Ex. 10, Morgan Decl. ¶ 4; Ex. 4, Lopez Decl. ¶¶12–13, 16–17. The continuation of in-person hearings and the lack of a uniform policy enabling postponement of all hearings prejudices detained persons’ rights and causes avoidable social contact.
C. In The Absence Of Uniform, Reasonable EOIR Policies, Inconsistent And Chaotic Responses By Individual Immigration Courts Continue To Put Lives At Risk EOIR has not issued any nationwide policy providing for remote hearings, facilitating the
rescheduling of hearings for detained individuals, or permitting continuances as of right, which has resulted in varying responses by individual immigration courts. Some remain open, some are open for filings and for detained hearings only, others are open for filings only, and a minority are closed. Fifty-eight (of sixty-nine) immigration courts are still holding in-person hearings. And while some courts (or individual judges) have entered standing orders related to COVID-19, almost half have not.40 These court and individual orders vary, and at least some of them impose unreasonable restrictions.
The result is that even when counsel are able to participate in hearings remotely, they do
40 As of today, 39 immigration court locations have issued court-wide COVID-19 standing orders. See Appendix A.
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so under conditions that can preclude adequate representation. For example, certain standing orders require attorneys to waive their clients’ right to object to the admission of documentary evidence on the sole basis that the party has not had the opportunity to examine it, even where the document has not previously been served on the detained person or, if represented, on his or her counsel. See Ex. 6, Rivera Decl. ¶ 23; Ex. 17, Manzanarez Decl. ¶ 19; Ex. 26, Mendez Decl. ¶ 19; Standing Order of the York Immigration Court Relating to Telephonic Appearances at Master Calendar Hearings (York Immigration Ct., Mar. 17, 2020); Standing Order: Telephonic Appearances in Cases Before the San Diego Immigration Court Due to COVID-19 (San Diego Immigration Ct. Mar. 30, 2020); Standing Order of Immigration Judge H. Kevin Mart Relating to Telephonic Appearances at Master Calendar Hearings (N.Y., Varick Street Immigration Ct. Mar. 21, 2020). As a consequence, the detained person and counsel are deprived of any meaningful right to see or read new documents presented at the hearing. Confronted with such an order, at least one attorney “concluded that the standing order would have required her to breach her ethical obligation to zealously represent her client by appearing telephonically,” and, consequently, made the difficult decision to attend a hearing in person, risking contracting COVID-19 and potentially exposing her client and others in the courthouse (and general population) to the virus. Ex. 6, Rivera Decl. ¶ 23; Ex. 10, Morgan Decl. ¶ 4.
In another example, the only judge from the Detroit Immigration Court to issue an order about remote appearances in response to COVID-19 has stated that because “the Court can only accommodate two telephonic appearances at one time,” if a respondent requests a non-Spanish interpreter, “the respondent will have to appear in person to allow” room on the line for a
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telephonic interpreter.41 Yet the NAIJ has explained that telephonic immigration hearings with multiple participants “can readily be accomplished,” since the “judge, the attorney for DHS, the respondent and his attorney, and an interpreter can easily be connected by telephone.” Ex. 32, NAIJ Statement at 3.
In yet another example, the Immigration Court in Baltimore issued a standing order on April 2, 2020 allowing attorneys to appear telephonically, but not making the same option available to respondents.42 Many other courts’ orders are silent on respondents’ ability to appear remotely and/or the court’s ability to have several people participating remotely, which, as the Detroit order makes clear, apparently cannot be assumed. And in a final example, one attorney even recounted that the Cleveland Immigration Court has required attorneys to waive their clients’ right to interpretation of the hearing if the court’s technology does not support simultaneous interpretation. Ex. 13, Bittner Decl. ¶¶ 27–28.43
Furthermore, in the absence of a nationwide policy providing for remote hearings or facilitating rescheduling, attorneys who seek remote hearings face significant obstacles. For instance, at least one attorney attempted to request a telephonic appearance for a hearing, but
41 Standing Order: Telephonic Appearance due to COVID-19 in detained cases before Judge Mark Jebson in the Detroit Immigration Court (Detroit Immigration Ct. Mar. 26, 2020). 42 Standing Order of the Immigration Court (Baltimore Immigration Ct. Apr. 2, 2020). 43 To the extent EOIR and ICE detention centers currently have some capacity for remote hearings, it is often not capable of fulfilling the purpose. For instance, attorney Amy Bittner has stated that she made a telephonic appearance at a hearing on March 20, 2020 during which she heard loud screeching feedback on about four occasions and had to wait until this feedback receded before she could participate in the hearing, interfering with her ability to adequately represent her client. Ex. 13, Bittner Decl. ¶ 26; see also Ex. 3, Church Decl. ¶ 13 (describing difficulties hearing the judge and having the judge hear her on a recent telephonic hearing); Ex. 18, Estrada Fernandez Decl. ¶ 11 (expressing concern that if the hearing connection is like his connection at the detention center, he is worried about his attorney’s ability to represent him.
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when she attempted to deliver her motions via FedEx and UPS, the “delivery persons were not allowed to deliver the motions to the court” and “were both turned away from the building multiple times.” See Ex. 14, Ziesemer Decl. ¶ 8. Another attorney stated that after a judge denied his motion to appear telephonically, the court clerk called the attorney and asked him to email a motion to continue to the court, which he was reluctant to do because it would delay his client’s case, but ultimately did so to protect “[his] family[], [his]clients[], the court staff, and others.” See Ex. 4, Lopez Decl. ¶ 17; see also supra pgs. 14–21 (recounting obstacles to appearing remotely or obtaining a continuance).
Even when EOIR has acted, it has often communicated its actions belatedly and in limited forums, leading to confusion and depriving its actions of some of their protective effect. In particular, EOIR has adopted the practice of communicating key announcements through social media such as Twitter and Facebook, sometimes exclusively. This includes court closures and changes to filing deadlines.
For example, at 7:10 p.m. on April 1, 2020, EOIR tweeted that “Due to a report of secondhand exposure to coronavirus, the Conroe Immigration Court is closed tomorrow, April 2, 2020,” and at 8:51 p.m. on April 1, 2020, EOIR tweeted that “Due to a report of the presence of an individual with a test-confirmed coronavirus diagnosis, the New Orleans Immigration Court will be closed tomorrow [April 2, 2020].” Until these tweets were published (if they were even seen in time by those planning to attend in person), everyone involved in the cases scheduled for April 2 had to undertake countless unnecessary actions that put their health and safety and the health and safety of others at risk.44 Family members may have already traveled to the hearing
44 EOIR has also deleted tweets, making social media an unreliable source. EOIR sent a tweet on March 24, 2020 at 6:00 p.m. stating that all filings which had been due during a week-long
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location, which outside of large cities is typically in a remote location that can require extensive public transportation to visit, and counsel may have already spent substantial time visiting their clients in detention centers, putting themselves at unnecessary risk. See, e.g., Ex. 25, Garcia Decl. ¶¶ 5–10; Ex. 6, Rivera Decl. ¶ 24; Ex. 4, Lopez Decl. ¶ 18; Ex. 33, Scott Decl. ¶ 6; Ex. 9, Terezakis Decl. ¶¶ 36, 39, 41–44; Ex. 13, Bittner Decl. ¶ 6.
D. Reasonable Measures To Protect Public Health Have Already Been Implemented By Non-Immigration Courts And Can Be Quickly Adopted By Immigration Courts On March 31, 2020, “[i]n order to address health and safety concerns in federal
courthouses and courtrooms, the Judicial Conference of the United States temporarily approved the use of video and teleconferencing for certain criminal proceedings and access via teleconferencing for civil proceedings during the COVID-19 national emergency.”45 Even before this approval by the Judicial Conference, many federal courts had altered their operations on an emergency basis to address the risks of COVID-19. For example, on March 16, the District Court for the District of Columbia excluded in-person proceedings and limited
closure to last until April 10 would instead be due the following day, March 25. After facing backlash from attorneys and social media, EOIR deleted the tweet and set a different deadline. Suzanne Monyak, Chaos, Confusion Reign As Immigration Courts Stay Open, Law360 (Mar. 27, 2020), https://www.law360.com/articles/1257798/chaos-confusion-reign-as-immigration-courtsstay-open 45 United States Courts, Judiciary Authorizes Video/Audio Access During COVID-19 Pandemic, (Mar. 31, 2020), https://www.uscourts.gov/news/2020/03/31/judiciary-authorizes-videoaudioaccess-during-covid-19-pandemic.
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operations to only “essential functions.”46 Several federal courts also suspended jury trials,47 non-emergency civil proceedings,48 and non-emergency criminal proceedings.49 Others embraced video teleconferencing. The Southern District of New York implemented procedures to “convert[] to a remote arraignment system, whereby the participants, including the presiding Magistrate Judge, [are] present via teleconferencing.”50
State courts have also adapted to the exigencies of the global health crisis. The New York state court system has shut down all but “essential and emergency matters”; even for these, the courts have transitioned to a “virtual court model” where hearings are conducted by Skype, in a process Chief Judge DiFiore described as “working well overall.”51 Other state courts have similarly transitioned to videoconferencing in civil and criminal proceedings.52
46 Standing Order No. 20-9, In re: Court Operations in Exigent Circumstances created by the COVID-19 Pandemic (D.D.C. Mar. 16, 2020). All cited U.S. District Court standing orders are available at U.S. Courts, Court Orders and Updated During COVID-19 Pandemic, https://www.uscourts.gov/about-federal-courts/court-website-links/court-orders-and-updatesduring-covid19-pandemic (accessed Apr. 6, 2020). 47 See, e.g., Amended General Order No. 20-02, In re: Coronavirus Public Emergency Order Concerning Jury Trials and Other Proceedings (C.D. Cal. Mar. 17, 2020); General Order No. 72, In re: Coronavirus Disease Public Health Emergency (N.D. Cal. Mar. 16, 2020). 48 Amended General Order 20-0012, In re: Coronavirus COVID-19 Public Emergency (N.D. Ill. Mar. 17, 2020); Administrative Order 20-AO-021, In re: Court Operations Under the Exigent Circumstances Created by COVID-19 and Related Coronavirus Health Conditions (E.D. Mich. Mar. 13, 2020). 49 Id. 50 Standing Order M-10-468, In re: Coronavirus/COVID-19 (Criminal Proceedings) (S.D.N.Y. Mar. 27, 2020); see also Administrative Order No. 262, In re: Handling of Criminal Cases under the Exigent Circumstances Created by the COVID-19 Virus (S.D. Ill. Mar. 23, 2020). 51Message from Chief Judge DiFiore (Mar. 30, 2020), https://www.nycourts.gov/whatsnew/pdf/Message330-v6.pdf.
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E. In Addition To Imperiling Public Health, ICE And EOIR Policies Impermissibly Interfere With Detained Persons’ Right To Counsel Because ICE detention centers so restrict access to telephones and videoconferencing as
to render adequate remote communication between detained persons and counsel next to impossible, attorneys are forced to choose between risking infection (and the public health) by meeting with detained clients in person (violating federal and state directives that seek to limit person to person contact) or failing to provide their detained clients with adequate legal representation.
First, videoconferencing is not always made available to persons detained by ICE, see, e.g., Ex. 13, Bittner Decl. ¶ 11 (describing that non-ICE detained persons at Butler County Jail have access to videoconferencing, but ICE detained persons at the same facility do not); Ex. 8, Saenz Decl. ¶ 10, and where it is available, it is not always sufficiently reliable to allow meaningful consultation.53 Second, with respect to telephone calls, it is common for detained persons to encounter the following: to be unable to receive calls; to have no free option for placing calls; to experience substantial delays in scheduling call times; to have scheduled call times canceled; to have to wait hours in line to make calls; to have calls monitored or overheard by others; to have calls limited to as few as 30 minutes; and/or to have calls be of such poor sound quality that they are effectively useless.
52 Superior Court of California, County of Los Angeles, Public Notice: COVID-19 (Mar. 20, 2020), http://www.lacourt.org/newsmedia/uploads/142020330112924PN_PRClerksOffices_03_20_20.p df; Stuart Jeff Rabner, Supreme Court of New Jersey (Mar. 27, 2020), https://www.njcourts.gov/notices/2020/n200327a.pdf. 53See Ex. 15, Greenstein Decl. ¶ 8; Ex. 4, Lopez Decl. ¶ 6; see also Ex. 16, Lunn Decl. ¶ 4, 6 (“[Videoconferencing] has been extremely difficult to set up . . . within the facility, due to technology challenges for both attorneys and detained clients trying to navigate the system software. . . . There is only one tablet available for a facility that has a capacity of over 1,500 people.”).
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Attorneys have experienced significant difficulties reaching clients in detention. For example, to reach clients at La Palma Correctional Center, attorney Juliana Manzanarez must email the detention facilities to ask clients to call her at a specified time. Ex. 17, Manzanarez Decl. ¶ 15. When seeking a phone appointment with her client on Wednesday, March 25, 2020, she was told no appointments were available until March 27, 2020. Id. Then, at the scheduled time, her client was unable to call because the facility was running behind, and Ms. Manzanarez was instructed that she would have to speak with her client later. Id. When attempting to contact her client at Eloy Detention Center, the calls, which are not confidential and for which the client must pay, last for only 3-5 minutes at a time before cutting off and requiring the client to re-dial. Ex. 17, Manzanarez Decl. ¶ 16; see also Ex. 18, Estrada Fernandez Decl. ¶¶ 9–11 (explaining he had to borrow 10 minutes of phone time credit from another detained person to review his asylum application with his attorney); Ex. 11, Miller Decl. ¶ 10; Ex. 8, Saenz Decl. ¶ 11.
In other cases, attorneys have reported attempting to contact persons at ICE detention centers repeatedly, often to be rerouted to voicemail that is never returned or returned after more than 24 hours. See Ex. 19, Robbins Decl. at 1; Ex. 14, Ziesemer ¶ 4; Ex. 11, Miller Decl. ¶ 10; Ex. 15, Greenstein Decl. ¶ 7. Other attorneys have reported being routed to several different detention center officials simply to schedule a private legal call with their client, only ultimately to be unsuccessful. See Ex. 20, Pengilley Decl. ¶¶ 7–11; Ex. 11, Miller Decl. ¶ 10. For example, as of March 25, 2020, Attorney Stephanie Pengilley had been trying to schedule a private call with her client for over a week without success. Ms. Pengilley made several calls to various officials, each one directing her to someone else. See Ex. 20, Pengilley Decl. ¶¶ 7–11.
Some facilities have not provided sufficient telephones to meet the increased demand for remote communication between detained persons and their counsel under the current
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circumstances. For example, La Palma Correctional Center, which now has a confirmed case of COVID-19, reportedly has only one phone available for detained persons’ use; Detained Plaintiff Mr. Rodriguez Cedeno had to stand in line with 10 people for almost three hours to use it. Ex. 5, Rodriguez Cedeno Decl. ¶ 10; see also Ex, 21, Napoles Vaillant Decl. ¶ 9; Ex. 22, Hollithron Decl. ¶ 11; Ex. 16, Lunn Decl. ¶ 6.
Then, even when attorneys are successful in scheduling a call with their clients, additional restrictions further block effective communication. Calls are often canceled at the last minute. See Ex. 14, Ziesemer Decl. ¶ 9; Ex. 17, Manzanarez Decl. ¶ 15. Calls are also limited, often to half an hour or an hour. See Ex. 2, Ehrlich Decl. ¶ 1; Ex. 16, Lunn Decl. ¶ 6; Ex. 4, Lopez Decl. ¶ 5. This is insufficient to prepare a client for a hearing. See Ex. 2, Ehrlich Decl. ¶ 1; Ex. 9, Terezakis Decl. ¶ 7. Attorneys and detained persons have also reported major technological issues, such as difficulty hearing the speakers and dropped calls, that render these calls inadequate for engaging in effective communication with their clients. See Ex. 16, Lunn Decl. ¶¶ 4, 6; Ex. 18, Estrada Fernandez Decl. ¶¶ 11–12; Ex. 15, Greenstein Decl. ¶ 8. Additionally, these conversations are not confidential and must often be conducted in the presence of several other individuals, including detention center employees and ICE officials. See Ex. 9, Terezakis Decl. ¶ 30; Ex. 13, Bittner Decl. ¶ 17; Ex. 22, Hollithron Decl. ¶ 6; Ex. 16, Lunn Decl. ¶ 5; Ex. 14, Ziesemer Decl. ¶ 5; Ex. 17, Manzanarez Decl. ¶ 17; Ex. 15, Greenstein Decl. ¶ 8; Ex. 18, Estrada Fernandez Decl. ¶¶ 9–11 (explaining he had to review his asylum application crowded in a room with 35 other people where it was difficult to hear his attorney). Knowing that a phone call or videoconference is not confidential further hampers attorneys’ ability to adequately provide counsel to their clients. See Ex. 9, Terezakis Decl. ¶ 19; Ex. 15, Greenstein Decl. ¶ 8. It is also difficult to review the documents and evidence that would be
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used at the hearing when speaking over the phone. See Ex. 2, Ehrlich Decl. ¶ 1. For example, Detained Plaintiff Mr. Estrada Fernandez has stated that he was unable to adequately review his asylum application over the phone with his attorney. See Ex. 18, Estrada Fernandez Decl. ¶¶ 10– 11.
Even when detained persons and counsel make the risky choice to continue in-person meetings, in some instances ICE has required that attorneys must personally provide and wear specific and widely unavailable personal protective equipment (“PPE”) in order to enter detention centers and courthouses housed in detention centers. See Ex. 23, Brown Decl. ¶ 33 (“ICE at the Aurora, Colorado detention center has informed us that PPE will be required for legal visitation, and to walk through the detention center to the detained court.”); Ex. 4, Lopez Decl. ¶ 7 (Warden informed attorneys that “as per ICE instructions, all attorneys must wear gloves and N-95 mask when conducting visits” but that due to the inability to locate PPE with the shortage, coupled with unavailability to teleconference with client, he was “forced to submit motions to continue merit hearings, prolonging our clients’ unnecessary detention.”); Ex. 12, Lelli Decl. ¶ 3; Ex. 24, Voigt Decl. at 4–5. This policy is in place even though ICE employees and detained persons are not wearing PPE, and it is nearly impossible for counsel to obtain the PPE due to the nationwide PPE shortage and public health officials’ guidance to preserve PPE for health care workers.54 See Ex. 10, Morgan Decl. ¶ 7; Ex. 25, Garcia Decl. ¶ 3–6; Ex. 6, Rivera Decl. ¶ 16; Ex. 24, Voigt Decl. at 4–5.
Finally, the failure of immigration courts to grant continuances as a matter of course
54 Centers for Disease Control and Prevention, Use of Cloth Face Coverings to Help Slow the Spread of COVID-19 (Apr. 4, 2020), https://www.cdc.gov/coronavirus/2019-ncov/preventgetting-sick/diy-cloth-face-coverings.html (“[S]urgical masks [and] N-95 respirators . . . are critical supplies that must continue to be reserved for healthcare workers and other medical first responders.”)
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under the present circumstances also impedes the ability of detained persons to even obtain counsel in the first place. For example, Detained Plaintiffs Messrs. Napoles Vaillant and Rodriguez Cedeno have had difficulty obtaining legal counsel during the crisis; despite their efforts to obtain legal counsel and the efforts on their behalf of the Florence Immigrant & Refugee Rights Project, they have been unable to obtain legal representation due to the outbreak of COVID-19 and the government’s response to this outbreak. See Ex. 21, Napoles Vaillant Decl. ¶¶ 7–8; Ex. 5, Rodriguez Cedeno Decl. ¶¶ 7–8. Yet Mr. Rodriguez Cedeno’s request for a continuance of his final merits hearing on his asylum application was denied. Id.
The COVID-19 pandemic, and restrictions and risks associated with it, severely limit the ability of detained persons to obtain counsel, prepare for hearings, and participate in hearings. Yet EOIR has no policy directing the routine grant of continuances to address these severe issues.
F. In The Face Of Repeated Requests For Action, ICE and EOIR Have Refused To Correct These Failures Before filing this action, Plaintiff AILA, along with numerous co-signatories, including
Plaintiff NIPNLG, sent five requests to Defendants in March 2020, requesting agency action addressing COVID-19 risks at immigration courts and detention facilities, in light of “the tremendous disparity in the way local offices were responding to the pandemic and implementing the directives from ICE’s national leadership.” Ex. 24, Voigt Decl. at 3. Each letter contained specific recommendations for Defendants to take to mitigate risk.
On March 12, 2020, AILA sent a letter to Defendant Matthew Albence, Acting Director for ICE, regarding procedures in detention facilities. Ex. 24, Voigt Decl. at 3 & Ex. A thereto. On March 15, 2020, AILA, the NAIJ, and the ICE Professionals Union issued a statement calling for the emergency closure of the nation’s immigration courts, which was sent to Defendants. Ex.
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24, Voigt Decl. at 3 & Ex. C thereto. On March 16, 2020, AILA sent a follow-up letter to Defendant Matthew Albence, Defendant James McHenry, and Attorney General William Barr regarding closing immigration courts and offering telephonic hearings. See Ex. 24, Voigt Decl. at 3 & Ex. B thereto.
ICE’s Office of Partnership and Engagement sent AILA a written response to their letters via email, which directed AILA to review ICE’s website on COVID-19. Ex. 24, Voigt Decl. at 3 & Ex. D thereto. But ICE’s COVID-19 website lacks information regarding immigration court proceedings and access to attorneys. The website contains a section titled “Immigration Court,” which contains only two sentences of text: “Is immigration court still taking place in-person at ICE detention facilities? Individuals attending immigration court in-person are encouraged to contact the Executive Office for Immigration Review for any additional requirements or changes to procedures.”55 In a section titled “Detention,” the website states “All detainees are afforded telephone access and can make calls to the ICE-provided list of free legal service providers and consulates at no charge to the detainee or the receiving party.”56 The website does not address availability of teleconferencing or videoconferencing for court hearings. The website also does not address the frequency of telephone availability for legal communications, the duration of time for which an individual is permitted to use the telephone, or provide any guarantee of a confidential line for communication.
On March 23, 2020, AILA, along with nearly one hundred partners, including law firms, legal non-profits, universities, and Plaintiff NIPNLG, sent a letter to Defendants Matthew Albence and James McHenry imploring them to authorize use of telephonic and video
55 U.S. Immigration and Customs Enforcement, ICE Guidance on COVID-19. 56 Id.
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conferencing technology for immigration court appearances and attorney-client meetings to “protect public health and ensure basic due process rights.” Ex. 24, Voigt Decl. at 3–4 & Ex. E thereto. The March 23 letter also stated that “[t]he lack of federal direction . . . is leading to a patchwork of conflicting and insufficient responses regionally and locally.” Ex. 24, Voigt Decl. Ex. E. On March 26, 2020, AILA along with nearly seventy partners, sent a letter to Defendant James McHenry and Attorney General Barr expressing concern that court personnel, litigants, and community members were endangered by the policies. Ex. 24, Voigt Decl. at 4 & Ex. F. The letter went on to say “DOJ and EOIR decision-making has been opaque, with inadequate information being released, causing confusion and leading to litigants showing up at hearings that are cancelled without notice” and that “DOJ’s current response to the COVID-19 pandemic and its spread is frighteningly disconnected from the realities of our communities, and the advice of local leaders and scientific experts.” Id.
To date, ICE and EOIR have refused to implement uniform policies suspending in-person hearings, implementing video or teleconferencing capabilities in detention centers, or providing for continuances as of right due to circumstances related to COVID-19.
LEGAL STANDARD “The standard for obtaining injunctive relief through either a temporary restraining order or a preliminary injunction is well established.” Gomez v. Kelly, 237 F. Supp. 3d 13, 14 (D.D.C. 2017). In assessing whether to grant such relief, a court must balance four factors: “(1) whether the movant is substantially likely to succeed on the merits; (2) whether the movant would suffer irreparable injury if the injunction were not granted; (3) whether an injunction would substantially injure other interested parties; and (4) whether the public interest would be furthered by the injunction.” Citizens for Resp. & Ethics in Wash. v. Cheney, 577 F. Supp. 2d 328, 334 (D.D.C. 2008).
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“In applying this four-factored standard, district courts employ a sliding scale under
which a particularly strong showing in one area can compensate for weakness in another.” Id. at
334–35 (explaining that a strong probability of irreparable injury may warrant issuance of an
injunction even where likelihood of success on the merits is “remote”). Accordingly, as the D.C.
Circuit has explained,
to justify a temporary injunction it is not necessary that the plaintiff’s right to a final decision . . . be absolutely certain . . . if the other elements are present . . . [I]t will ordinarily be enough that the plaintiff has raised substantial questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation.
Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977).
“[S]uch relief is preventative, or protective; it seeks to maintain the status quo pending a final
determination of the merits of the suit.” Id. The Court also has power under the All Writs Act to
enter this injunction to protect its ability to adjudicate this dispute and afford effective relief.57
ARGUMENT
In order to address the dire risk to life and health posed by the COVID-19 pandemic,
countless institutions across the country have implemented drastic measures designed to slow the
spread of the virus, even when those measures entailed great sacrifice; in many respects, the
57 Given the rapidity with which COVID-19 spreads, especially in close quarters and institutional settings, a delay of weeks or even days could deprive the Court of the ability to adjudicate and redress the harms that Plaintiffs seek to prevent through this TRO, which would have irretrievably materialized. The All Writs Act authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). That includes the “express authority . . . to issue such temporary injunctions as may be necessary to protect its own jurisdiction.” F.T.C. v. Dean Foods Co., 384 U.S. 597, 608 (1966). Here, the relief sought in Plaintiffs’ current motion is the same relief sought in the Complaint, which provides clear jurisdictional nexus. Due to the urgency caused by the COVID-19 outbreak, relief from the Court is necessary to preserve the Court’s jurisdiction and therefore this Court has authority to alternatively grant Plaintiffs’ motion under the All Writs Act. See Trump v. Committee on Ways and Means, 415 F. Supp. 3d 38, 44 (D.D.C. 2019) (Nichols, J.).
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normal functioning of our society and economy have been upended. Yet Defendants have failed—indeed, refused—to take urgently necessary action to safeguard the lives of detained persons, decrease the associated risk to the public, and ensure that detained persons are not deprived of their constitutional and statutory rights. Consequently, without temporary injunctive relief, Plaintiffs will continue to suffer legal injury, and Plaintiffs (as well as the public) will continue to be exposed to avoidable and unacceptable risk of illness and death. Plaintiffs are likely to succeed on their claims, and the injuries they face are irreparable. In the current public health emergency, the public interest also weighs strongly in favor of granting the temporary relief that Plaintiffs seek. Moreover, there is no hardship associated with implementing that relief that compares to the hardships that Plaintiffs are undergoing without it. For all of these reasons, Plaintiffs are entitled to the relief that they seek, and their application for a temporary restraining order should be granted.
I. Plaintiffs Are Likely To Succeed On The Merits Defendants have violated the APA by refusing to direct immigration courts to conduct
proceedings in a manner consistent with the public health and protection of detained persons’ rights to counsel. Defendants have also violated constitutional and statutory rights to counsel and to due process. Plaintiffs are likely to succeed on their claims based on these violations, which supports entry of a temporary restraining order.58
A. Plaintiffs Are Likely To Succeed On Their Claims That Defendants’ Agency Actions Violate The APA Defendants have failed to issue uniform instructions for immigration court proceedings
58 Plaintiffs focus on the First through Third Claims of the Complaint in recognition of the urgency of the situation and should not be construed as having abandoned the other claims, which also support injunctive relief.
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and attorney-client visits in detention facilities that (1) conform with public health requirements to contain the spread of COVID-19 and that (2) preserve Plaintiffs’ statutory, regulatory, and constitutional rights.
As detailed above, government and medical experts, including the CDC and WHO, consistently instruct that it is a public health imperative to decrease physical interactions between people in order to slow the spread of COVID-19 as much as possible. Because detention facilities are particularly vulnerable to rapid spread of COVID-19, the CDC issued guidance on practices to implement in correctional and detention facilities, specifically calling for “alternatives to in-person court appearances” and decreasing “operational entrances and exits to the facility” (e.g., for attorney visits and to attend hearings).59
Despite the public health emergency and authoritative instruction on how to mitigate health risks in an incarcerated population for whom proceedings may be required, which state and federal court systems have followed, EOIR has not suspended non-essential in-person hearings and has refused to issue any uniform policy designed to minimize the COVID-19 health risks, instead leaving individual immigration judges and courts to muddle along with inconsistent and often harmful practices. Most immigration courts continue to be open for in-person hearings, remote alternatives are limited, and in many courts where remote access is available on paper, the remote facilities are inadequate to meet the requirements of due process and access to counsel. Nor is there any apparent relationship between the practices of immigration courts and the severity of the COVID-19 outbreak in the courts’ locations. For example, according to
59 Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease. The guidance was most recently updated on March 23, 2020 and expressly states that it is directed to ICE, among others.
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recent data, New York City has about one hundred times the incidence of COVID-19 as does Memphis,60 yet in-person hearings are being conducted at all three New York City immigration courts, while the immigration court in Memphis is open only for filings. See Appendix A. Likewise, ICE has refused to implement policies that are consistent with federal health mandates to facilitate limitations on unnecessary transfer of detained persons or on operational entrances and exits to detention facilities. Detained persons are thus endangered every time a lawyer is required to visit in person or they are transferred on a crowded bus to a courthouse because of the absence of adequate remote access facilities.
Despite repeated requests for agency action from many direct participants in the immigration court system who are harmed by the current practices—associations of judges, ICE employees, attorneys, and detained individuals—EOIR and ICE have neither explained nor changed their policies.61 Based on the available data and facts, there is no rational explanation for EOIR’s and ICE’s policies and failures to act. Without offering any explanation for their actions, EOIR and ICE have implemented chaotic policies that run counter to the evidence before them.
Defendants’ failure to implement a uniform policy adequately addressing the COVID-19 pandemic and related federal guidelines, despite multiple requests from multiple constituencies, is an agency action that is “[a]rbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” as well as “[c]ontrary to constitutional right, power, privilege or
60 The New York Times, Coronavirus in the U.S.: Latest Map and Case Count, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html#states, (accessed Apr. 6, 2020) (citing 57,160 COVID-19 cases and 1,867 deaths in New York and 640 cases and 7 deaths in Memphis). 61 Defendants effectively denied the numerous requests by sending nothing more than a cursory email response directing Plaintiff AILA to review the COVID-19 page on ICE’s website.
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immunity.” It thus violates the APA and is subject to judicial review by this Court. See 5 U.S.C.
§§ 706(2), 704.
The APA entitles “[a] person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action” to “judicial review thereof.” 5 U.S.C. § 702.62
For purposes of the APA, “agency action includes the whole or a part of an agency rule, order,
license, sanction, relief, or the equivalent denial thereof, or failure to act.” 5 U.S.C. § 551(13).
Where a court finds that an agency action is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law, and that the party suffered a legal wrong due to that
agency action, the court shall “hold unlawful and set aside [the] agency action, findings, and
conclusions.” 5 U.S.C. § 706(2).
While courts generally defer to an agency’s expertise, the court must still satisfy itself
that the agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation for
62 This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. That jurisdiction is not limited by 8 U.S.C. §§ 1252(a)(5) or (b)(9) because this action is not arising from removal proceedings. See O.A. v. Trump, 404 F. Supp. 3d 109, 126-–38 (D.D.C. 2019); Martinez v. Nielsen, 341 F. Supp. 3d 400, 406-–08 (D.N.J. 2018) (finding Sections 1252(a)(5) and (b)(9) inapplicable where TRO does not “directly implicate the order of removal”). Nor does 8 U.S.C. § 1252(f) preclude relief here because Plaintiffs do not seek to enjoin “the operation of the provisions of part IV [removal provisions] of this subchapter.” The government would also be wrong to argue that the Organizational Plaintiffs lack a cause of action. See Federal Defenders of New York, Inc. v. Federal Bureau of Prisons, No. 19-1778, 2020 WL 1320886, at *5-–11 (2d. Cir. Mar. 20, 2020) (holding Federal Defenders could challenge limitations on access to counsel under the APA and “raised serious arguments in favor of allowing” equitable claim for violation of the Sixth Amendment to proceed); Make the Road N.Y. v. McAleenan, 405 F. Supp. 3d 1, 32-– 35 (D.D.C. 2019) (holding immigration rights advocacy group had associational standing to pursue action where “at least one identified member faces an injury that is ‘concerted and particularized,’” that “interests Plaintiffs seek to protect are germane to the organizations’ purposes,” and the matter “does not require individual members’ participation.”); Innovation Law Lab v. Nielsen, 310 F. Supp. 3d 1150, 1161-62 (D. Ore. 2018) (holding organizational plaintiff had standing to pursue action where “stated mission is to advocate on behalf of and provide legal representation to noncitizens in the United States.”).
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its action including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). When, as here, the agency “has failed to provide a reasoned explanation, or where the record belies the agency’s conclusion,” the court “must undo its action.” Cty. of Los Angeles v. Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999). “Moreover, an agency cannot fail to consider an important aspect of the problem or offer an explanation for its decision that runs counter to the evidence before it.” Dist. Hosp. Partners, L.P. v. Burwell, 786 F.3d 46, 57 (D.C. Cir. 2015). EOIR and ICE have offered no justifications for their decisions not to act, nor are there any that would withstand judicial review.63 The Court is therefore justified in providing temporary injunctive relief. See Minute Order, O.M.G. v. Wolf, 1:20-cv-00786 (D.D.C. Mar. 30, 2020).
B. Plaintiffs Are Likely To Succeed On Their Claim That Defendants’ Policies Restrict Access To Counsel In Violation Of Constitutional And Statutory Rights It is well established that the Fifth Amendment entitles non-citizens to due process in
immigration proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993). The Fifth Amendment guarantees that “[n]o person . . . shall be deprived of life, liberty, or property” without due process of law, and removal proceedings implicate a non-citizen’s liberty interest, especially when the non-citizen is being detained. See Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Due process for immigration proceedings includes the right to counsel. See, e.g., Leslie v. Attorney General, 611 F.3d 171, 181 (3d Cir. 2010) (“[A]lthough the Fifth Amendment does not mandate government-appointed counsel for aliens at removal proceedings, it indisputably affords an alien the right to counsel of his or her own choice at his or her own expense.”); Biwot v. Gonzales, 403
63 If EOIR’s and ICE’s decisions are instead construed as a failure to act rather than agency action, their failures to act are also reviewable under 5 U.S.C. § 706(1), and should be set aside because the agencies failed to act so as to afford the effective right to counsel required by law, as discussed infra in I.B.
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F.3d 1094, 1098 (9th Cir. 2005) (“The right to counsel in immigration proceedings is rooted in
the Due Process Clause.”).
The INA provides that “[i]n any removal proceeding before an immigration judge,” the
individual “shall have the privilege of being represented (at no expense to the Government) by
such counsel, authorized to practice in such proceedings, as he shall choose.” 8 U.S.C. § 1362;
Maldanado-Perez v. INS, 865 F.2d 328, 333 (D.C. Cir. 1989) (noting that non-citizens have a
statutory right to counsel at deportation proceedings but not at government expense); see also 8
C.F.R. § 1240.3 (“The respondent may be represented at the hearing by an attorney or other
representative qualified under 8 CFR part 1292.”).64
Unreasonable infringements on detained persons’ ability to obtain and consult with
counsel accordingly violate their constitutional and statutory rights. As one court has explained:
The right to counsel in immigration proceedings, including asylum proceedings, requires that an alien be provided “reasonable time to locate counsel and permit counsel to prepare for the hearing.” Biwot v. Gonzales, 403 F.3d 1094, 1098-99 (9th Cir. 2005). The Ninth Circuit has upheld mandatory injunctions designed to remedy government practices when the “cumulative effect” of such practices “was to prevent aliens from contacting counsel and receiving any legal advice.” Orantes–Hernandez v. Thornburgh, 919 F.2d 549, 565 (9th Cir. 1990). Government practices that effectively deny access to counsel include the detention of aliens far from where potential or existing counsel was located, limited attorney visitation hours, and the processing of aliens at locations where telephones were not available to them.
Innovation Law Lab v. Nielsen, 310 F. Supp. 3d 1150, 1162 (D. Or. 2018) (emphasis added).
The detention facility in that case “repeatedly denied access” to attorneys and gave “conflicting
and nearly-impossible-to-follow instructions on the availability of legal visitation hours.” See id.
64 See also 5 U.S.C. § 555(b) (“[a] person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative”); S.E.C. v. Whitman, 613 F. Supp. 48, 50 (D.D.C. 1985) (emphasizing that there must be “veritable meaning” to the witness’ right to counsel under 5 U.S.C. § 555(b)).
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at 1162. The court granted a temporary restraining order requiring the government to guarantee
adequate attorney visitation and install additional telephone lines at the detention facility since
the plaintiffs established a likelihood of success on their due process right to counsel claim. See
id. at 1162–163, 1165.65
As described above, supra pgs. 24–28, in the face of the COVID-19 pandemic,
Defendants’ actions have unreasonably restricted detained persons’ right to counsel by impairing
(1) their ability to retain counsel, (2) their ability to communicate confidentially with their
counsel, and (3) their counsel’s ability to competently represent them in immigration court.
65 See also Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 565-66 (9th Cir. 1990) (granting permanent injunction when agents restricted detained persons’ ability to contact and retain counsel, and there were “limited attorney visitation hours” at facilities, “long delays” in allowing detained persons to contact attorneys, “inadequate efforts to ensure the privacy of both in-person and telephonic attorney-client interviews,” and “severely limited” detained persons’ access to telephones “due to time restrictions, the number of functioning telephones and . . . an [un]reliable system of informing detainees of attorneys’ phone calls”); Rios-Berrios v. INS, 776 F.2d 859, 863 (9th Cir. 1985) (vacating deportation order when the “unexplained haste” of the proceedings, including immigration judge’s refusal to grant reasonable continuances, effectively deprived detained person of his access to counsel); Torres v. United States Dep't of Homeland Sec., 411 F. Supp. 3d 1036, 1045, 1060 (C.D. Cal. 2019) (denying motion to dismiss INA and due process right to counsel claims when detained person and organizational plaintiffs alleged “restrictions on telephone access [such as limited duration of calls with attorneys, imposition of costs, and failure to maintain phone connectivity in facilities] as well as difficulty with legal mail, in-person meetings, and numerous other obstacles”); Chhoeun v. Marin, 306 F.Supp.3d 1147, 1156, 1160 (C.D. Cal. 2018) (granting stay of removal of detained persons where ICE officials initially denied attorneys access to visit detained persons; refused to provide attorneys information about when detained persons would be available for consultations; and then made the attorneys wait two to three hours before allowing them to meet with detained persons); Castillo v. Nielsen, No. 5:18-cv-01317, 2018 WL 6131172, at *1–4 (C.D. Cal. June 21, 2018) (granting temporary restraining order requiring the government to allow detained persons at detention facility to “communicate, both in person and by phone, with other immigration attorneys who wish to communicate with them,” when facility only allowed for a “limited time” for in-person legal visitation while also failing to guarantee adequate phone access); Nunez v. Boldin, 537 F. Supp. 578, 582 (S.D. Tex. 1982) (granting injunctive relief when detention facility unreasonably restricted attorney visitation after 3:30 p.m.); Louis v. Meissner, 530 F. Supp. 924, 927 (S.D. Fla. 1981) (granting injunctive relief when there was a “general unavailability of telephones” in detention facilities, restricting detained persons’ access to counsel).
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Practices that restrict access to counsel under normal conditions (such as limitations on telephone use, number of functioning telephones, and monitored telephone lines)66 have an even greater detrimental effect during the COVID-19 pandemic, when in-person visits by attorneys to detention centers put themselves, their families, detained persons, ICE employees, and the public at risk.
ICE’s failure to act to increase detained persons’ access to robust remote communication and EOIR’s failure to suspend in-person hearings and grant continuances as a matter of course together deprive detained persons of their right of access to counsel. The actions and inactions by Defendants, individually and collectively, therefore directly result in a deprivation of Plaintiffs’ due process rights, for which this Court may grant relief. II. Failure To Implement The Requested Relief Will Immediately And Irreparably
Injure Plaintiffs The “basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312. (1982). Here, Defendants’ failures to implement uniform, reasonable policies that protect Plaintiffs’ constitutional and statutory rights to counsel and that conform with public health requirements have already irreparably injured Plaintiffs (and the public) and will continue to do so absent immediate relief. EOIR’s failure to uniformly postpone in-person court proceedings and other deadlines as appropriate, and ICE’s failure to allow adequate remote access to counsel, is causing irreparable harm to Plaintiffs’ health and safety from increased and unnecessary exposure to COVID-19 and depriving detained persons of any meaningful ability to communicate with counsel. Without relief, in-person hearings will continue to occur, requiring travel and social contact for many
66 See supra note 64.
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people, any one of whom could be ill, could have been exposed to an infected individual, or could encounter an infected individual during the travel and contact required to attend a hearing. At least one attorney has already contracted COVID-19 after attending immigration court where she believes she might have been infected (and her mother is now seriously ill and hospitalized), Ex. 1, Arce Decl. at 1–2; one government attorney is reportedly in a medically induced coma after appearing in immigration court, Liz Robbins, As Coronavirus Spreads, So Does Panic and Confusion At Immigration Courts Across the U.S., The Appeal (Apr. 3, 2020), https://theappeal.org/as-coronavirus-spreads-so-does-panic-and-confusion-at-immigrationcourts-across-the-u-s/; and another detained person’s attorney, who attended an in-person hearing in immigration court—believing that staying home (and protecting her own health and the health of others) would mean failing in her duty to her client—days before learning a member of her household, which also includes a person living with leukemia, tested positive for COVID-19, Ex. 3, Church Decl. ¶¶ 9–17. Detained persons and their attorneys will thus continue to be forced into the crosshairs of this highly contagious and potentially devastating virus absent immediate relief. See Ex. 27, Jha Decl. ¶ 16 (immigration court hearings, which require “the participation of a multitude of people,” put attendees—including detained persons and counsel—“at substantial risk for further transmission of this deadly disease, furthering this public health crisis”); Ex. 31, Steiner Decl. ¶¶ 5, 10; see also, e.g., Coronel v. Decker, No. 20-cv2472, 2020 WL 1487274, at *3 (S.D.N.Y. Mar. 27, 2020) (granting temporary restraining order because “irreparable harm exists where, as here, petitioners face imminent risk to their health, safety, and lives” from exposure to COVID-19 (internal quotations omitted)).
Failure to implement the requested relief will also needlessly contribute to community spread of the virus. COVID-19 will continue to be contracted and transmitted at immigration
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courts. See, e.g., Ex. 27, Jha Decl. ¶¶ 16–17 (“[A]nyone needing to access the immigration courts may need to utilize mass public transportation, wait in long security lines to enter the immigration court building, and wait in cramped waiting rooms prior to the start of the immigration hearing.”); Ex. 3, Church Decl. ¶ 17; Ex. 31, Steiner Decl. ¶ 10. And individuals who contract the virus at immigration courts will then transmit the virus to their families and communities. See, e.g., Ex. 9, Terezakis Decl. ¶¶ 39–42 (describing how client’s mother tested positive for COVID-19 after attending in-person proceeding using public transportation). The risk of a cascading spread of COVID-19, which has been growing exponentially nationwide,67 is especially acute at detention facilities, and transporting detained persons to and from immigration courts will continue to recklessly place detention facilities at significant risk of widespread transmission of the virus.68 Recognizing this risk, Judge Boasberg has recently ordered the Government to provide detained persons “CDC-compliant protocols and protections for congregate settings in civil-detention facilities.” See Minute Order, O.M.G. v. Wolf, 1:20-cv00786 (D.D.C. March 30, 2020); see also, e.g., Castillo v. Barr, No. 20-cv-00605, 2020 WL 1502864, at *6 (C.D. Cal. Mar. 27, 2020) (“Civil detainees must be protected by the Government. Petitioners have not been protected. . . . [T]he Government cannot deny the fact that the risk of infection [from COVID-19] is particularly high . . . .”); Basank v. Decker, 20-cv2518, 2020 WL 1481503, at *3 (S.D.N.Y. Mar. 26, 2020) (finding irreparable harm from risk of
67 See supra p. 6. 68 Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf; Rosenberg et al., As Pandemic Rages, U.S. Immigrants Detained in Areas With Few Hospitals, The New York Times (Apr. 3, 2020), https://www.nytimes.com/reuters/2020/04/03/us/03reuters-health-coronavirus-usa-detentioninsight.html.
39

Case 1:20-cv-00852-CJN Document 7 Filed 04/08/20 Page 50 of 64
exposure to COVID-19, especially where the “nature of detention facilities makes exposure and spread of the virus particularly harmful.”). Every day that goes by without reasonable procedures places not only Plaintiffs but also the public at large at unnecessary and substantial health risk.
Detained Plaintiffs also have a constitutional and statutory right to access to counsel. See supra I.B. EOIR’s failure to uniformly postpone in-person court proceedings and other deadlines as necessary, and ICE’s failure to allow adequate remote access to counsel, significantly curtails detained persons’ ability to obtain counsel, and, when counsel is obtained, to be adequately represented by such counsel.
It is axiomatic that “the loss of constitutional freedoms, ‘for even minimal periods of time, unquestionably constitutes irreparable injury.’” Mills v. D.C., 571 F.3d 1304, 1312 (D.C. Cir. 2009) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); see also Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013) (“Suits for declaratory and injunctive relief against the threatened invasion of a constitutional right do not ordinarily require proof of any injury other than the threatened constitutional deprivation itself.”) (citation omitted). Accordingly, the current restriction of the Detained Plaintiffs’ due process right to counsel constitutes an irreparable injury that will continue to occur absent immediate relief. See, e.g., Innovation Law Lab, 310 F.Supp.3d at 1163 (finding irreparable harm when “Defendants are likely violating the immigrant detainees’ constitutional rights,” including “denial of access to legal representation”).
For example, the following irreparable infringements of Plaintiffs’ right of access to counsel will continue to occur every day without relief:
• Unrepresented detained persons will continue to be forced to proceed in their cases without a reasonable opportunity to obtain counsel. See Ex. 21, Napoles Vaillant Decl. ¶¶ 7–8; see also Ex. 5, Rodriguez Cedeno Decl. ¶¶ 7–8. Absent swift relief, such individuals may be removed before such an opportunity is
40

Case 1:20-cv-00852-CJN Document 7 Filed 04/08/20 Page 51 of 64
eventually provided to them, or the crisis abates. • Motions for continuance will continue to be denied notwithstanding the
unavailability of counsel, or, if counsel has been obtained, without adequate access to their clients and facilities to prepare the case and zealously—or even adequately—represent their client. See, e.g., supra pgs. 16–18, 24–28. • Witnesses will continue to be fearful of attending any in-person hearings, consequently hindering counsel in their ability to adequately represent their clients. See, e.g., Ex. 28, Edstrom Decl. ¶ 6 (describing witnesses’ reluctance to appear at in-person proceeding). These risks of constitutional injury and physical injury require this court to act immediately to maintain the status quo pending a determination on the merits. III. The Balance Of Equities Weighs In Plaintiffs’ Favor The third factor—the balance of equities—tips strongly in favor of the requested injunctive relief, because the Defendants would suffer no harm from the cessation of unlawful practices that endanger public health, and any theoretical costs Defendants might incur would be significantly outweighed by the likelihood of irreparable harm to Plaintiffs (and the public). See Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 361 (D.C. Cir. 1999) (the injunctive relief factors “interrelate on a sliding scale and must be balanced against each other”). As established above, the Plaintiffs face immediate and irreparable harm to their health and constitutional rights. Conversely, it is well established that Defendants “cannot suffer harm from an injunction that merely ends an unlawful practice.” Open Communities All. v. Carson, 286 F. Supp. 3d 148, 179 (D.D.C. 2017) (Housing and Urban Development could not suffer harm from injunction requiring it to implement federal rule) (citation omitted); see R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 2015) (Department of Homeland Security could not suffer harm from injunction that ended likely unlawful policy of considering deterrence of mass immigration in making detention determinations). Like in Open Communities All. and R.I.L-R, Plaintiffs here seek to enjoin government agencies from continuing to act unlawfully by failing
41

Case 1:20-cv-00852-CJN Document 7 Filed 04/08/20 Page 52 of 64
to issue uniform policies that conform with public health guidelines to prevent the spread of COVID-19 and that protect detained persons’ constitutional and statutory rights to counsel. Defendants would suffer no harm being required to comply with the law.
Moreover, demonstrating that the relief Plaintiffs seek is feasible, federal courts around the country have implemented protective measures to prevent the spread of COVID-19. Requiring EOIR to follow suit would not impose unreasonable burdens or harms. Cf. Minute Order, O.M.G. v. Wolf, 1:20-cv-00786 (D.D.C. March 30, 2020). Indeed, current immigration judges have affirmed that conducting proceedings remotely during this crisis “can readily be accomplished,” and proposed that EOIR implement uniform procedures that accord with the relief Plaintiffs seek here. See Ex. 32, NAIJ Statement at 3–4. And courts elsewhere, even in non-emergency times, have required detention facilities to take affirmative actions to facilitate detained persons’ access to counsel, including installing telephone lines, since “any [possible] burden on Defendants is more than justified by the need to ensure the fulfillment of Plaintiffs’ constitutional rights.” See Innovation Law Lab, 310 F. Supp. 3d at 1163, 1165–66. IV. The Requested Relief Is In The Public Interest
The injunctive relief sought here is also indisputably in the public interest. The requested relief follows the mitigation measures urged by the President’s Coronavirus Task Force, which its members have repeatedly stated will immediately help save lives.
Federal, state, and local governments have undertaken unprecedented measures to slow the spread of COVID-19 and prevent serious illness and death. President Trump, supported by doctors and infectious disease specialists, has held nearly daily press conferences explaining the importance of the CDC’s guidance, the need to slow transmission, and the need to protect healthcare facilities from being inundated with patients they lack resources to help. It is hard to imagine a greater public interest than that, as numerous courts have already held. See, e.g.,
42

Case 1:20-cv-00852-CJN Document 7 Filed 04/08/20 Page 53 of 64
Castillo, 2020 WL 1502864, at *6 (“Finally, the emergency injunctive relief sought, here, is absolutely in the public’s best interest. The public has a critical interest in preventing the further spread of the coronavirus. An outbreak at Adelanto [Detention Center] would, further, endanger all of us – Adelanto detainees, Adelanto employees, residents of San Bernardino County, residents of the State of California, and our nation as a whole.”); Coronel v. Decker, No. 20-cv2472, 2020 WL 1487274, at *7 (S.D.N.Y. Mar. 27, 2020) (“[B]oth Petitioners and the public benefit from ensuring public health and safety,” as a COVID-19 outbreak at a detention facility could “place strain on the surrounding community hospitals.”).
An order requiring Defendants to postpone all in-person detained hearings, while also ensuring meaningful remote access procedures, is necessary to protect not only Plaintiffs, but also immigration judges,69 the staff at immigration courts,70 government attorneys, ICE employees, other detained persons in facilities, and members of the public at large.71 The president of the American Federation of Government Employees Local 511, which represents ICE employees, stated “Our primary concern here today is the Department of Justice’s refusal to either close or postpone immigration court in-person hearings during this global health crisis”
69 See NAIJ, The National Association of Immigration Judges Urgently Calls for Immediate Implementation of Required Health and Safety Measures for the Immigration Courts During the Coronavirus Pandemic; Monique O. Madan, White House itself is choosing which immigration courts get to close amid COVID-19, Miami Herald (Mar. 19, 2020), https://www.miamiherald.com/news/local/immigration/article241335126.html (“Back at the courthouses, immigration judges are doing all they can to try to keep away from crowds and other people in general — that includes calling in sick.”). 70 See Dara Lind, Immigration Courts Are Telling Employees to Come to Work — Ignoring Health Risks and Local Shelter-in-Place Orders, ProPublica (Mar. 20, 2020), https://www.propublica.org/article/immigration-courts-are-telling-employees-to-come-to-workignoring-health-risks-and-local-shelter-in-place-orders. 71 See Ex. 27, Jha Decl. ¶ 17.
43

Case 1:20-cv-00852-CJN Document 7 Filed 04/08/20 Page 54 of 64
and that “[l]ike most government employees, ICE attorneys are concerned about the risk to their health and the health of their families.”72
Slowing the spread of COVID-19 is also in the public’s economic interest. There is no doubt that the severe restrictions imposed on daily life are having a correspondingly severe economic impact. But Federal Reserve economists have concluded that social distancing measures and slowing the spread of the virus is the fastest and best way to return to business as usual and improve the economic situation.73
Finally, there is also a clear public interest in the protection of constitutional rights. See Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013) (“Generally, public interest concerns are implicated when a constitutional right has been violated, because all citizens have a stake in upholding the Constitution.”) (internal quotation marks and citation omitted); see also Gordon, 721 F.3d at 653 (“[E]nforcement of an unconstitutional law is always contrary to the public interest”). The public therefore has a significant interest in the preservation of detained persons’ right to counsel, which “right is ‘an integral part of the procedural due process to which the [detained person] is entitled.” See Iavorski v. I.N.S., 232 F.3d 124, 128 (2d Cir. 2000) (quoting Batanic v. INS, 12 F.3d 662, 667 (7th Cir. 1993). Similarly, there is a “substantial public interest in having governmental agencies abide by the federal laws that govern their existence and operations,” which includes the APA and INA. See League of Women Voters of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (internal quotation marks omitted); see also R.I.L-R, 8 F. Supp.
72 See Charles Davis, Immigration Judges, ICE Attorneys, and Experts are Calling on the Trump Administration to Close the Courts to Stop the Novel Coronavirus from Spreading, Business Insider (Mar. 1, 2020), https://www.businessinsider.com/coronavirus-ice-and-immigrationjudges-call-for-delay-in-hearings-2020-3. 73 See Sergio Correia et al., Pandemics Depress the Economy, Public Health Interventions Do Not: Evidence from the 1918 Flu (Mar. 30, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3561560.
44

Case 1:20-cv-00852-CJN Document 7 Filed 04/08/20 Page 55 of 64

3d at 191 (“The public interest is served when administrative agencies comply with their obligations under the APA.”) (internal quotation marks omitted).
CONCLUSION For the foregoing reasons, this Court should GRANT Plaintiffs’ Motion for a Temporary Restraining Order.

Dated: April 8, 2020 Washington, D.C.

Respectfully submitted,
/s/ Sirine Shebaya Sirine Shebaya (D.C. Bar No. 1019748) Khaled Alrabe* Amber Qureshi* Cristina Velez* NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 (202) 656-4788 sirine@nipnlg.org khaled@nipnlg.org amber@nipnlg.org cristina@nipnlg.org
*Pro hac vice motions forthcoming
/s/ Matthew D. Slater Matthew D. Slater (D.C. Bar No. 386986) Elsbeth Bennett (D.C. Bar No. 1021393) CLEARY GOTTLIEB STEEN & HAMILTON LLP 2112 Pennsylvania Avenue, N.W. Washington, D.C. 20037-3229 T: 202-974-1500 F: 202-974-1999 mslater@cgsh.com ebennett@cgsh.com
Jennifer Kennedy Park* Lina Bensman* CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, New York 10006 T: 212-225-2000 F: 212-225-3999 jkpark@cgsh.com lbensman@cgsh.com

45

Case 1:20-cv-00852-CJN Document 7 Filed 04/08/20 Page 56 of 64 Attorneys for Plaintiffs *Pro hac vice motions forthcoming
46

Case 1:20-cv-00852-CJN Document 7 Filed 04/08/20 Page 57 of 64

Appendix A*

Permits Permits Hearings

Status of

Date of Hearings Telephonically

Operational

Standing

Order’s Telephon Without Prior

Immigration Court

Status

Order

Entry

ically?

Motion?

Method to Inform Court

1.

Adelanto

Open

Courtwide

3/25/20

Yes

Yes

Provide telephone number to

court

2.

Arlington

Open For Filings Courtwide

3/24/20

Yes

Yes

And For Detained

Hearings Only

Call in advance to ascertain operational status, provide telephone number to court

3.

Atlanta – Ted

Turner Drive

Open For Filings Courtwide

3/20/20

Yes

Yes

And For Detained

Hearings Only

Call in advance and provide client’s Alien number, name of judge, date of hearing, and telephone number to court

4.

Atlanta - W.

Open For Filings No Order

n/a

Peachtree Street

Only

n/a

n/a

5.

Aurora

Open For Filings Courtwide

3/30/20

Yes

Yes

And For Detained

Hearings Only

Call judge’s legal assistant 48 hours in advance of hearing to receive conference line number

6.

Baltimore

Open For Filings Courtwide

4/2/20

Yes

Yes

And For Detained

Hearings Only

Call in advance to ascertain operational status, provide telephone number to court

7.

Batavia

Open

Courtwide

3/24/20

Yes

Yes

8.

Boston

Open For Filings Courtwide

3/30/20

Yes

Yes

And For Detained

Hearings Only

Call in advance and provide client’s Alien number, name of judge, date of hearing, and telephone number to court

9.

Buffalo

Open For Filings Courtwide

3/24/20

Yes

Yes

And For Detained

Hearings Only

10. Charlotte

Open For Filings No Order

n/a

And For Detained

Hearings Only

1

Case 1:20-cv-00852-CJN Document 7 Filed 04/08/20 Page 58 of 64

Permits Permits Hearings

Status of

Date of Hearings Telephonically

Operational

Standing

Order’s Telephon Without Prior

Immigration Court

Status

Order

Entry

ically?

Motion?

Method to Inform Court

11. Chicago

Open For Filings Courtwide

3/19/20

Yes

Yes

Call in advance and provide

And For Detained

client’s Alien number, name of

Hearings Only

judge, date of hearing, and

telephone number to court

12. Cleveland

Open For Filings Courtwide

4/1/20

Yes

Yes

And For Detained

Hearings Only

Email 24 hours in advance of the hearing and provide telephone number to the court

13. Conroe

Open For Filings Courtwide

3/24/20

Yes

Yes

And For Detained

Hearings Only

Call in advance and provide client’s Alien number, name of judge, and telephone number to court

14. Dallas

Open For Filings And For Detained Hearings Only

Judge-by-Judge 3/24/20 (Judge Weiss)
3/25/20 (Judge DavisGumbs)

Yes (only Judges Weiss, DavisGumbs, and Sims)

Yes (only Judges Weiss, DavisGumbs, and Sims)

3/30/20 (Judge Sims)

15. Denver

Open For Filings No Order

n/a

And For Detained

Hearings Only

16. Detroit

Open For Filings And For Detained Hearings Only

Judge-by-Judge 3/26/20 (Judge Jebson)

Yes (only Yes (only Judge

Judge

Jebson)

Jebson)

Provide telephone number to court

17. El Paso

Open For Filings Courtwide

3/25/20

Yes

Yes

And For Detained

Hearings Only

Call 15 minutes in advance of hearing and provide telephone number to court

18. El Paso SPC

Open

No Order

n/a

2

Case 1:20-cv-00852-CJN Document 7 Filed 04/08/20 Page 59 of 64

Permits Permits Hearings

Status of

Date of Hearings Telephonically

Operational

Standing

Order’s Telephon Without Prior

Immigration Court

Status

Order

Entry

ically?

Motion?

Method to Inform Court

19. Elizabeth

Open For Filings Courtwide

3/19/20

Yes

Yes

Call at least one business day in

And For Detained

advance and provide telephone

Hearings Only

number to court

20. Eloy

Open

Courtwide & 3/18/20

Yes

Yes

Judge-by-Judge 4/3/20

(Judge Gaz)

Provide telephone number to court

4/2/20 (Judge Habich)

21. Falls Church IAC Open

No Order

n/a

22. Fishkill

Open

No Order

n/a

23. Florence

Closed – Hearings Courtwide

4/6/20

Yes

Yes

continuing at

Phoenix

Call Phoenix Court in advance and provide client’s Alien number, name of judge, and telephone number to court

24. Fort Snelling (Bloomington)

Open For Filings And For Detained Hearings Only

Courtwide

3/26/20

Email in advance of hearing and provide Alien number, date and time of hearing, and phone number to court

25. Fort Worth IAC

Open

No Order

n/a

26. Guaynabo (San Juan)

Closed

Courtwide

3/25/20

Yes

Yes

Call in advance and provide client’s Alien number, name of judge, date of hearing, and telephone number to court

27. Harlingen

Open For Filings Courtwide

4/1/20

Yes

No

And For Detained

Hearings Only

Provide notice to the court at by email in advance of the hearing and in accordance with instructions attached to the order

3

Case 1:20-cv-00852-CJN Document 7 Filed 04/08/20 Page 60 of 64

Permits Permits Hearings

Status of

Date of Hearings Telephonically

Operational

Standing

Order’s Telephon Without Prior

Immigration Court

Status

Order

Entry

ically?

Motion?

Method to Inform Court

28. Hartford

Open For Filings Courtwide

3/30/20

Yes

Yes

Call in advance and provide

And For Detained

client’s Alien number, time/date

Hearings Only

of hearing, and telephone

number to court

29. Honolulu

Open For Filings No Order

n/a

And For Detained

Hearings Only

30. Houston

Open For Filings And For Detained Hearings Only

Courtwide

4/1/20

Yes

No

Make motion by calling at least one day in advance by calling court and providing client’s Alien number, name of judge, date of hearing, and telephone number

31. Houston – S.

Open For Filings No Order

n/a

Gessner Road

Only

32. Imperial

Open For Filings Courtwide

4/2/20

Yes

Yes

And For Detained

Hearings Only

Contact court in advance and provide telephone number

33. Kansas City

Open For Filings Courtwide

3/24/20

Yes

Yes

And For Detained

Hearings Only

Call in advance and provide client’s Alien number, time/date of hearing, and telephone number to court

34. Las Vegas

Open For Filings Courtwide

4/2/20

Yes

Yes

And For Detained

Hearings Only

Call in advance and provide client’s Alien number, name of judge, and telephone number to court

35. LaSalle

Open

Courtwide

3/25/20

Yes

Yes, except for individual merit hearings which must be requested by motion

Provide to court telephone number at least 2 business days prior to hearing

4

Case 1:20-cv-00852-CJN Document 7 Filed 04/08/20 Page 61 of 64

Permits Permits Hearings

Status of

Date of Hearings Telephonically

Operational

Standing

Order’s Telephon Without Prior

Immigration Court

Status

Order

Entry

ically?

Motion?

Method to Inform Court

36. Los Angeles – N.

Open For Filings Courtwide

3/25/20

Yes

Yes

Provide telephone number to

Los Angeles Street And For Detained

court

Hearings Only

37. Los Angeles - Olive Open For Filings No Order

n/a

Street

And For Detained

Hearings Only

38. Los Angeles - Van Open For Filings No Order

n/a

Nuys Boulevard

Only

39. Louisville

Closed

No Order

n/a

40. Memphis

Open For Filings No Order

n/a

Only

41. Miami

Open For Filings No Order

n/a

And For Detained

Hearings Only

42. Miami Krome

Open For Filings No Order

n/a

(Detained)

And For Detained

Hearings Only

43. New Orleans

Closed

No Order

n/a

44. New York Broadway

Open For Filings No Order

n/a

Only

45. New York - Federal Open For Filings No Order

n/a

Plaza

And For Detained

Hearings Only

46. New York - Varick Open For Filings Judge-by-Judge 3/21/20

Yes (only Yes (only Judge

And For Detained

(Judge Mart) Judge

Mart)

Hearings Only

Mart)

47. Newark

Open For Filings No Order

n/a

Only

48. Oakdale

Open

No Order

n/a

5

Case 1:20-cv-00852-CJN Document 7 Filed 04/08/20 Page 62 of 64

Permits Permits Hearings

Status of

Date of Hearings Telephonically

Operational

Standing

Order’s Telephon Without Prior

Immigration Court

Status

Order

Entry

ically?

Motion?

49. Omaha

Open For Filings Courtwide

3/18/20

Yes

No

And For Detained

Hearings Only

Method to Inform Court

50. Orlando

Open For Filings Courtwide

3/25/20

Yes

Yes

And For Detained

Hearings Only

Call in advance and provide client’s Alien number, name of judge, date of hearing, and telephone number to court

51. Otay Mesa

Open

Courtwide

3/30/20

Yes

Yes

Provide telephone number to court

52. Otero

Open

Judge-by-Judge 3/27/20 (Judge Taylor)

Yes (only Yes (only Judge

Judge

Taylor)

Taylor)

Call at least 15 minutes in advance of hearing and provide landline telephone number to court

53. Pearsall

Open

Courtwide

4/2/20

Yes

No

Send email in advance of the hearing and provide telephone number

54. Philadelphia

Open For Filings Courtwide

4/3/20

Yes

Yes

And For Detained (master

Hearings Only

calendar

hearings only)

Call in advance and provide client’s Alien number, date of hearing, and telephone number

55. Phoenix

Open For Filings Courtwide

4/3/20

Yes

Yes

And For Detained

Hearings Only

Call in advance and provide Alien number, name of judge, and telephone number

56. Port Isabel

Open

Courtwide

4/1/20

Yes

No

Provide notice to the court at by email in advance of the hearing and in accordance with instructions attached to the order

57. Portland

Open For Filings No Order

n/a

And For Detained

Hearings Only

6

Case 1:20-cv-00852-CJN Document 7 Filed 04/08/20 Page 63 of 64

Permits Permits Hearings

Status of

Date of Hearings Telephonically

Operational

Standing

Order’s Telephon Without Prior

Immigration Court

Status

Order

Entry

ically?

Motion?

58. Sacramento

Open For Filings No Order

n/a

Only

Method to Inform Court

59. Saipan

Open For Filings No Order

n/a

And For Detained

Hearings Only

60. Salt Lake City

Open For Filings No Order

n/a

And For Detained

Hearings Only

61. San Antonio

Open For Filings Courtwide

4/2/20

Yes

No

And For Detained

Hearings Only

Email court in advance of hearing and provide telephone number

62. San Diego

Open For Filings Courtwide

3/30/20

Yes

Yes

And For Detained

Hearings Only

Provide telephone number to court

63. San Francisco

Open For Filings Courtwide

4/3/20

Yes

Yes

And For Detained

Hearings Only

Email court in advance to provide telephone number, Alien number, respondent’s name, and date of hearing

64. Seattle

Open For Filings No Order

n/a

And For Detained

Hearings Only

65. Stewart

Open

Courtwide

3/24/20

Yes

Yes

Call in advance and provide client’s Alien number, name of judge, and telephone number to court

66. Tacoma

Open

Courtwide

3/20/20

Yes

Yes

Court will call attorney if none is present in the in-court video conference room; attorney should provide telephone number at least two days prior to hearing to court

7

Case 1:20-cv-00852-CJN Document 7 Filed 04/08/20 Page 64 of 64

Permits Permits Hearings

Status of

Date of Hearings Telephonically

Operational

Standing

Order’s Telephon Without Prior

Immigration Court

Status

Order

Entry

ically?

Motion?

Method to Inform Court

67. Tucson

Open

Courtwide

3/24/20

Yes

Yes

Provide telephone number to

court

68. Ulster

Open

No Order

n/a

69. York

Open

Courtwide

3/17/20

Yes

Yes

* Information as of April 7, 2020, compiled from EOIR Operational Status During Coronavirus Pandemic, Department of Justice, https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic

8

 
 Case 1:20-cv-00852-CJN Document 29-1 Filed 04/20/20 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
-against-
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,

Civil Action No. 1:20-cv-00852 (CJN)

Defendants.

PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Case 1:20-cv-00852-CJN Document 29-1 Filed 04/20/20 Page 2 of 13 TABLE OF CONTENTS Page
ARGUMENT ..............................................................................................................................2 A. In-Person Proceedings Continue To Be Conducted Despite Objections ................2 B. “Remote” Hearings Often Fail To Protect Health Or Due Process ........................3 C. Update Regarding Individual Plaintiffs ................................................................4 1. Reynaldo Guerrero-Cornejo......................................................................5 2. Enrique Napoles Vaillant..........................................................................6 3. Ernesto Rodriguez Cedeno .......................................................................6 4. Arlety Aliaga-Cobas .................................................................................6 5. Roberto Fausto Velasquez Quiala .............................................................6 D. A Temporary Restraining Order Is Necessary And Warranted..............................7
CONCLUSION ...........................................................................................................................9
i

Case 1:20-cv-00852-CJN Document 29-1 Filed 04/20/20 Page 3 of 13

TABLE OF AUTHORITIES

Page(s)

Other Authorities

Alejandro Lazo, Fear of Coronavirus in Immigrant Detention Leads to Preparation,

Calls for Release, The Wall Street Journal (Mar. 21, 2020) .............................................

7

Executive Office for Immigration Review, Board of Immigration Appeals Practice

Manual (Feb. 20, 2020) ..................................................................................................

1

Liz Robbins, As Coronavirus Spreads, So Does Panic and Confusion at Immigration

Courts Across The U.S., The Appeal (Apr. 3, 2020) ........................................................

4

Megan Towey, Citing coronavirus pandemic, judges and ICE attorneys demand closure

of immigration courts, CBS News (Mar. 25, 2020)..........................................................

8

U.S. Immigrations and Customs Enforcement, ICE Guidance on COVID-19, https://www.ice.gov/coronavirus (accessed Apr. 19, 2020).............................................. 5, 6

WKTN, Gov. DeWine’s COVID-19 Update: Recovery Phase, Inmate Testing (Apr. 17,

2020) ..............................................................................................................................

8

ii

Case 1:20-cv-00852-CJN Document 29-1 Filed 04/20/20 Page 4 of 13
Plaintiffs respectfully submit this supplemental brief to bring to the Court’s attention new evidence that denials of motions for continuance are ongoing, including in cases where a hearing participant had tested positive for COVID-19. Indeed, on April 15, as this Court was being assured by Defendants that its concern about such denials was entirely hypothetical, see Hr’g Tr. 39:12-13, a detained person who had tested positive for COVID-19 was denied a request for continuance of a hearing scheduled for April 16. As a result, the individual was required to attend a two-hour hearing on April 16, during which the guard accompanying him informed the immigration judge that the individual was too sick even to state his name. Right after the hearing, he was hospitalized, and he is now in intensive care. See Ex. 55, Semino Decl. ¶¶ 6-10.1
As the Court pointedly ascertained in the April 15 hearing, such denials of a continuance create an injury for which there is no remedy. See Hr’g Tr. 38:6-42:13. Even setting aside that the immigration system does not provide a viable means of interlocutory review,2 interlocutory review could not provide a remedy for the harm to the health of the detained person or to others who are required to participate in such proceedings, or who later come into contact with the participants. This risk goes beyond outright denials – requests for continuances often go unaddressed, so that counsel must appear in court, even when continuances are ultimately granted, irreparably risking the health of all concerned as fully as if the request had been denied.
1 Although this hearing was nominally “remote,” the detained person’s participation caused him to be transported out of quarantine and to expose at a minimum one guard unnecessarily. 2 Executive Office for Immigration Review, Board of Immigration Appeals Practice Manual (Feb. 20, 2020), https://www.justice.gov/eoir/page/file/1250701/download (“(c) Scope of interlocutory appeals. – The Board does not normally entertain interlocutory appeals and generally limits interlocutory appeals to instances involving either important jurisdictional questions regarding the administration of the immigration laws or recurring questions in the handling of cases by Immigration Judges. See Matter of K-, 20 I&N Dec. 418 (BIA 1991).”).
1

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This supplemental brief accordingly presents additional evidence of this ongoing
irreparable injury and summarizes the evidence already in the record that demonstrates a pattern
of activity and injury that necessitates this Court’s intervention. In addition, at the Court’s
direction, this brief provides updates as to the circumstances of the individual Detained
Plaintiffs.
ARGUMENT
A. In-Person Proceedings Continue To Be Conducted Despite Objections
The record in this case, as well as additional declarations filed with this supplemental
brief,3 demonstrate that in-person hearings continue to take place for a variety of reasons,
including because:
• Courts deny or fail to timely respond to requests for continuances, such that counsel, detained persons, witnesses, or others must appear in person and commingle with other people before they learn that the hearing has been or will be adjourned.
o Ex. 9, Terezakis Decl. ¶¶ 32-33 o Ex. 31, Steiner Decl. ¶¶ 5, 10 o Ex. 35, Boyle Decl. ¶¶ 7-8 o Ex. 55, Semino Decl. ¶¶ 5-7 • Courts deny or fail to timely respond to requests to participate by telephone in what is otherwise an in-person proceeding, such that counsel, detained persons, witnesses, or others must appear in person and commingle with other people.
o Ex. 3, Church Decl. ¶ 11 o Ex. 9, Terezakis Decl. ¶¶ 36-41 o Ex. 31, Steiner Decl. ¶ 10 o Ex. 51, Beckett Decl. ¶¶ 4-6 o Ex. 52, Stump Decl. ¶¶ 5-8
3 Plaintiffs are submitting additional declarations from practitioners describing recent events. Ex. 51, Beckett Decl.; Ex. 52, Stump Decl.; Ex. 53, Hartnett Decl.; Ex. 54, Edstrom Supp. Decl.; Ex. 55, Semino Decl.; Ex. 56, Lopez Supp. Decl.; Ex. 58, Sud-Devaraj Supp. Decl.; Ex. 60, Decl. Summary Chart. Plaintiffs are also submitting supplemental declarations on behalf of Organizational Plaintiffs AILA, NIPNLG, and IJC to explain which of the new declarants are members of the Organizational Plaintiffs. Ex. 57, Tolchin Supp. Decl.; Ex. 59, Voigt Second Supp. Decl.; Ex. 61, Greenstein Supp. Decl.
2

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o Ex. 53, Hartnett Decl. ¶¶ 4-6 In addition to causing some or all of the participants in a proceeding to come together in person despite objection, these immigration court actions frequently result in other limitations of the right to counsel or due process rights. These include the inability to obtain evidence due to the COVID-19 pandemic, and the exclusion of a necessary person from participating in the proceeding. See, e.g., Ex. 54, Edstrom Supp. Decl. ¶ 3-4; Ex. 35, Boyle Decl. ¶¶ 7-10. Examples of these in the record (including the new declarations) are catalogued in the accompanying table. See Ex. 60. B. “Remote” Hearings Often Fail To Protect Health Or Due Process While Defendants emphasized that individual judges have discretion to conduct hearings remotely by video-teleconference (“VTC”) or telephone conference, the evidence summarized above demonstrates that the availability of discretion, without clear direction to exercise it, is insufficient to prevent irreparable injury. Further, the use of such hearings does not eliminate the harms to health and to the right to counsel that underlie the need for a temporary restraining order. As noted above, a nominally remote hearing occurred – over the detained person’s objection – on April 16, but this “remote” hearing was not, and could not have been, conducted safely and in accordance with due process. In this case, the detained person’s lawyer learned that the detained person was ill and being tested for COVID-19, and she filed a motion for a continuance on April 14. She also noted that she had not had access to her client to prepare for the hearing due to COVID-19 conditions, thereby depriving him of his right to counsel. After learning of her client’s positive diagnosis of COVID-19, the lawyer supplemented the motion for a continuance on April 15, noting the positive diagnosis and her client’s weak health condition. Notwithstanding this motion, her client was forced to travel through the detention center to appear by VTC for his hearing, accompanied by at least one ICE employee. The hearing
3

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proceeded to consider the detained person’s application for a T visa (a form of relief available to victims of human trafficking). After proceeding with the hearing for two hours (without the benefit of meaningful participation by the detained person, who was too ill to speak), the judge finally adjourned it and set it to continue as soon as next week, and even that short delay was due to the judge’s inability to set it sooner. See Ex. 55, Semino Decl. ¶¶ 5-9. This incident exemplifies the risk to health and right to counsel even in nominally remote hearings.
In addition, immigration courts and detention facilities frequently do not have the capacity to connect all necessary parties remotely. This results in critical participants either being required to gather in common locations and/or being excluded altogether. See, e.g., Ex. 52, Stump Decl. ¶¶ 5-7; Ex. 54, Edstrom Supp. Decl. ¶¶ 3-4; Ex. 38, Bennion Decl. ¶¶ 2-3; Ex. 22, Hollithorn Decl. ¶ 13. There are also numerous examples in the record of attorneys being prepared to appear telephonically, but never receiving calls at the appointed time. See, e.g., Ex. 36, Green Decl. ¶¶ 4-6; Ex. 39, Ford Decl. ¶ 5.
Examples of these injuries in the record are also summarized in the accompanying table. See Ex. 60.4
C. Update Regarding Individual Plaintiffs As requested by the Court at the April 15 hearing, the following update is provided concerning the individual plaintiffs.
4 Defense attorneys are not the only participants worried about their ability to zealously represent their clients in the face of COVID-19. Attorneys for Defendant ICE have reported to their union president that “not enough documents were available online to do a ‘credible job of representing the government.’” Liz Robbins, As Coronavirus Spreads, So Does Panic and Confusion at Immigration Courts Across The U.S., The Appeal (Apr. 3, 2020), https://theappeal.org/ascoronavirus-spreads-so-does-panic-and-confusion-at-immigration-courts-across-the-u-s/.
4

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1. Reynaldo Guerrero-Cornejo Mr. Guerrero-Cornejo continues to be detained at La Palma Detention Center in Eloy, Arizona. ICE currently reports that there are 6 confirmed cases of COVID-19 at La Palma.5 His individual hearing on the merits is scheduled to proceed on April 24, 2020. His attorney is atrisk for more serious complications from COVID-19 and cannot participate in an in-person hearing. To adequately represent Mr. Guerrero-Cornejo, his attorney would at a minimum require appearing by VTC, but that is not an option for the April 24 hearing, because to do so she would need to travel to either the Tucson Immigration Court or the detention center, neither of which she can do. Ex. 58, Sud-Devaraj Supp. Decl. ¶¶ 4-6. While the details of the April 24 hearing are still being arranged, she expects that: (1) the Immigration Judge and the interpreter will be together in one room at the Tucson Immigration Court and participate via VTC; (2) Mr. Guerrero-Cornejo will participate via VTC from the La Palma Correctional Center; (3) the DHS attorney will likely participate via VTC; (4) the attorney will appear telephonically; and (5) witnesses supporting Mr. Guerrero-Cornejo will have to participate in-person at the Tucson Immigration Court, which is more than a three-hour drive from where they reside. Id. ¶ 7. The attorney is very concerned that she will not be able to see her client while he is being questioned because she cannot participate by VTC.
I will be unable to judge from his body language and facial expressions whether he understands the questions posed to him, whether he is getting overwhelmed during cross-examination, whether he needs a break from the questioning, etc. Typically, I am able to gauge this information when a hearing is conducted in-person. For instance, when I am able to see my client during a hearing, I can tell when my client is not understanding a question or not following what the interpreter is saying. In that sort of scenario, I would normally request that the DHS attorney rephrase the question or I would rephrase any of my questions. By appearing telephonically, I will be unable
5 U.S. Immigrations and Customs Enforcement, ICE Guidance on COVID-19, https://www.ice.gov/coronavirus (accessed Apr. 19, 2020).
5

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to fully and adequately represent Mr. Guerrero-Cornejo during his upcoming hearing. Id. ¶ 8. The attorney, an AILA member, joined to support the TRO in this case in hopes that it would be granted in time to enable her to participate more fully in representing her client in the hearing, without having to put her life and health at risk. 2. Enrique Napoles Vaillant Mr. Vaillant continues to be detained at La Palma Detention Center in Eloy, Arizona, where there are at least 6 confirmed cases of COVID-19. His individual hearing on his asylum claim is scheduled for June 22, 2020. He still does not have counsel. 3. Ernesto Rodriguez Cedeno Mr. Cedeno continues to be detained at La Palma Detention Center in Eloy, Arizona, where there are at least 6 confirmed cases of COVID-19. After Mr. Cedeno’s motion to continue was denied, his April 2 hearing ultimately was rescheduled to August 5, 2020. This fortuitous outcome, however, was only a result of EOIR’s sua sponte rescheduling due to judge unavailability. Mr. Cedeno still does not have counsel. 4. Arlety Aliaga-Cobas Ms. Aliaga-Cobas continues to be detained at Eloy Detention Center in Eloy, Arizona. Her individual hearing on her asylum claim is scheduled for June 2, 2020. She still does not have counsel. 5. Roberto Fausto Velasquez Quiala Mr. Quiala continues to be detained at Pine Prairie ICE Processing Center in Pine Prairie, Louisiana. ICE currently reports that there are 4 confirmed cases of COVID-19 at Pine Prairie.6
6 U.S. Immigrations and Customs Enforcement, ICE Guidance on COVID-19, https://www.ice.gov/coronavirus (accessed Apr. 19, 2020).
6

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Mr. Quiala’s individual hearing is scheduled for May 19, 2020. Mr. Quiala’s attorney has attested to how the constraints on remote access to communicate with individuals detained at Pine Prairie have caused him to struggle to communicate with Mr. Quiala. Ex. 4, Lopez Decl. ¶¶ 5-8; Ex. 56, Lopez Supp. Decl. ¶¶ 4-5.
D. A Temporary Restraining Order Is Necessary And Warranted To avoid irreparable injury and to promote the public interest, in-person proceedings for detained individuals must be stopped during the public health emergency caused by the COVID19 pandemic, and related continuances granted as of right. Consistent with the evidence previously presented and summarized above, immigration judges have likewise encountered an approach by EOIR that “has been marked by a chaotic, inconsistent and confusing series of pronouncements—some by order, some by memo, some by email, and some by Tweet . . . that are not based on conditions in the surrounding communities.” Former Judges Br. at 3, ECF No. 20. The result is that “EOIR and therefore the immigration court system itself, has sacrificed due process in favor of rapid removals, leaving the court without any incentive at all to plan to protect the public health or the individuals and participants in the system.” Id. at 2-3. Government prosecutors are likewise concerned for their health and support an end to in-person hearings. The head of the American Federation of Government Employees Local 511, which represents ICE attorneys, publicly stated that “[a]ll of the attorneys . . . in our agency, they are scared to death.”7 Other members of the union have also criticized Defendants’ agency actions,
7 Alejandro Lazo, Fear of Coronavirus in Immigrant Detention Leads to Preparation, Calls for Release, The Wall Street Journal (Mar. 21, 2020), https://www.wsj.com/articles/fear-ofcoronavirus-in-immigrant-detention-leads-to-preparation-calls-for-release-11584810004.
7

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calling the decision to keep immigration courts open “absolutely outrageous” and a “conscious disregard for human life and safety.”8
This is a national problem stemming from Defendants’ actions to decline to set national standards.9 In these circumstances, it is entirely appropriate for the Court to require Defendants
to exercise their authority to supervise the national system of immigration court and detention
facilities. It is not realistic or consistent with basic notions of due process to instead require
individual detained persons or their counsel to deal with these risks on a one-off basis in a game
of whack-a-mole all over the country. This is especially the case when the record shows that
Defendants can and do move detained persons around the country, far from where their counsel are located.10
Defendants have it within their power to bring order to the chaos by adopting clear
statements that a request for continuance of a hearing based on COVID-19 shall be deemed
granted upon filing. They also have the ability to require that remote hearings must proceed in a
8 Megan Towey, Citing coronavirus pandemic, judges and ICE attorneys demand closure of immigration courts, CBS News (Mar. 25, 2020), https://www.cbsnews.com/news/citingcoronavirus-pandemic-judges-and-ice-attorneys-demand-closure-of-immigration-courts/ 9 Because detained persons are moved around the country and counsel may be in states far from the detention center, these are not solely localized issues. Likewise, because of the risk of transmission by asymptomatic or presymptomatic carriers, the absence of formal diagnoses of COVID-19 infection in a particular facility is not a reason to refuse minimum national guidance as is sought by this motion. For example, on Friday, April 17, Governor DeWine of Ohio reported that testing by the Ohio Department of Health in the population of a single correctional facility found high levels of COVID-19 infection among “individuals who otherwise are asymptomatic or would recover without a test. For example, the testing of one prison dorm in Marion found that out of 152 inmates, 39 percent tested positive for COVID-19 although they did not show any symptoms.” WKTN, Gov. DeWine’s COVID-19 Update: Recovery Phase, Inmate Testing (Apr. 17, 2020), https://wktn.com/gov-dewines-covid-19-update-recovery-phaseinmate-testing. 10 Ex. 51, Beckett Decl. ¶¶ 1, 3-4; Ex. 53, Hartnett Decl. ¶¶ 1-3, 7-8; Ex. 49, Durham Decl. ¶ 4.
8

Case 1:20-cv-00852-CJN Document 29-1 Filed 04/20/20 Page 12 of 13
manner that respects the right to counsel and due process by ensuring that all necessary participants may in fact participate meaningfully, rather than (as is the case now) dropping witnesses or interpreters because the court’s system does not accommodate more than a minimal number of remote participants.11 Their decision not to adopt such minimum standards (or to refuse to do so) constitutes agency action that the Court may set aside as arbitrary and capricious, or unlawfully withheld.
The Court need not find that Defendants have acted in bad faith – Plaintiffs make no such claim. Nor must the Court disregard the presumption of regularity of agency action, as Defendants contend. The agency action (or refusal to act) at issue is that of Defendants, not those of individual immigration judges or individual facilities. As to that action (or refusal to act), the Court is compelled to find, based on the uncontroverted evidence in the record of this case, that it has resulted in irreparable injury and presents an imminent and ongoing risk of irreparable injury to members of Organizational Plaintiffs and to Detained Plaintiffs for which the Court may afford relief in the form of a temporary restraining order.
CONCLUSION For the foregoing reasons, and those set forth in the record of proceedings to date, this Court should GRANT Plaintiffs’ Motion for a Temporary Restraining Order to prevent imminent
11 For example, in a typical “remote” hearing (a) the immigration judge and interpreter will likely appear together by VTC from the immigration court, (b) the government attorney may appear by VTC from a separate location, (c) the detained person’s attorney will likely appear by telephone from a separate location, and (d) witnesses, if they are permitted at all, are likely required to appear at the courthouse, either by VTC in a separate courtroom or in the same room as the judge. See Ex. 58, Sud-Devaraj Supp. Decl. ¶ 7; Ex. 54, Edstrom Supp. Decl. ¶ 4; Ex. 52. Stump Decl. ¶ 4.
9

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and ongoing risk of irreparable injury, which is supported by the likelihood of success on the merits, the absence of injury to Defendants, and the public interest.

Dated: April 20, 2020 Washington, D.C.

Respectfully submitted,
/s/ Sirine Shebaya Sirine Shebaya (D.C. Bar No. 1019748) Khaled Alrabe (pro hac vice) Amber Qureshi (pro hac vice) Cristina Velez (pro hac vice) NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 (202) 656-4788 sirine@nipnlg.org khaled@nipnlg.org amber@nipnlg.org cristina@nipnlg.org
/s/ Matthew D. Slater Matthew D. Slater (D.C. Bar No. 386986) Elsbeth Bennett (D.C. Bar No. 1021393) CLEARY GOTTLIEB STEEN & HAMILTON LLP 2112 Pennsylvania Avenue, N.W. Washington, D.C. 20037-3229 T: 202-974-1500 F: 202-974-1999 mslater@cgsh.com ebennett@cgsh.com
Jennifer Kennedy Park (pro hac vice) Lina Bensman (pro hac vice) CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, New York 10006 T: 212-225-2000 F: 212-225-3999 jkpark@cgsh.com lbensman@cgsh.com
Attorneys for Plaintiffs

10

Case 1:20-cv-00852-CJN Document 29-2 Filed 04/20/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
-against-
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,

Civil Action No. 1:20-cv-00852 (CJN)

Defendants.

DECLARATION OF MATTHEW D. SLATER I, Matthew D. Slater, pursuant to 28 U.S.C. § 1746, declare and state as follows: 1. I am an attorney admitted to practice before this Court and a partner of the law firm Cleary Gottlieb Steen & Hamilton LLP, counsel for National Immigration Project of the National Lawyers Guild, American Immigration Lawyers Association, Immigration Justice Campaign, Enrique Napoles Vaillant, Ernesto Rodriguez Cedeno, Arlety Aliaga-Cobas, Reynaldo GuerreroCornejo, and Roberto Fausto Velasquez Quiala. I submit this declaration in support of Plaintiffs’ Supplemental Brief In Support Of Emergency Motion For Temporary Restraining Order, dated April 20, 2020. 2. Attached as Exhibit 51 to this declaration is a true and correct copy of the declaration of Eduardo Beckett, dated April 18, 2020. 3. Attached as Exhibit 52 to this declaration is a true and correct copy of the declaration of Kelli Stump, dated April 19, 2020. 4. Attached as Exhibit 53 to this declaration is a true and correct copy of the declaration of Matthew Hartnett, dated April 18, 2020.

Case 1:20-cv-00852-CJN Document 29-2 Filed 04/20/20 Page 2 of 2
5. Attached as Exhibit 54 to this declaration is a true and correct copy of the declaration of Michelle Edstrom, dated April 17, 2020.
6. Attached as Exhibit 55 to this declaration is a true and correct copy of the declaration of Veronica Semino, dated April 18, 2020.
7. Attached as Exhibit 56 to this declaration is a true and correct copy of the declaration of Homero López, dated April 19, 2020.
8. Attached as Exhibit 57 to this declaration is a true and correct copy of the declaration of Stacy Tolchin on behalf of the National Immigration Project of the National Lawyers Guild, dated April 19, 2020.
9. Attached as Exhibit 58 to this declaration is a true and correct copy of the declaration of Monika Sud-Devaraj, dated April 19, 2020.
10. Attached as Exhibit 59 to this declaration is a true and correct copy of the declaration of Kate Voigt on behalf of the American Immigration Lawyers Association, dated April 19, 2020.
11. Attached as Exhibit 60 to this declaration is a true and correct copy of a declaration summary chart.
12. Attached as Exhibit 61 to this declaration is a true and correct copy of the declaration of Ilana Etkin Greenstein on behalf of the Immigration Justice Campaign, dated April 19, 2020.
I declare under penalty of perjury that the foregoing is true and correct. Executed on April 20, 2020 in Bethesda, Maryland.
______________________ Matthew D. Slater -2-

Case 1:20-cv-00852-CJN Document 29-3 Filed 04/20/20 Page 1 of 3
Exhibit 51

Case 1:20-cv-00852-CJN Document 29-3 Filed 04/20/20 Page 2 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLU1\1BIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
-against-
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,

Civil Action No. I :20-cv-00852 (CJN)

Defendants.

Declaration of Eduardo Beckett
I, Eduardo Beckett, declare as follows:
I. I am an attorney licensed to practice Jaw in New Mexico. I am admitted to the New Mexico District Court, the Western District of Texas, and the United States Court of Appeals for the Fifth Circuit. My business address is 1611 Beech Street, Suite B, El Paso, TX 79925.
2. I have been practicing law since 2005 when I joined the New Mexico Legal Aid, Inc., farmworker division, located in Las Cruces, New Mexico, where I represented migrant and seasonal fannworkers under, inter alia, the Fair Labor Standards Act ("FLSA") and the Agriculture Worker Protection Act ("AWPA"). From 2006-2008, I worked as an Assistant City Attorney/Prosecutor for the City of Las Cruces, NM.
3. I have a client detained at Tacoma Northwest Detention Center in Washington. He was previously detained at the Otero Processing Center in Chaparral, New Mexico, and the West Texas Detention Center in Sierra Blanca.
4. My client had an individual hearing scheduled for April 8, 2020. On April 3, 2020, consistent with the standing order of Judge Brock Taylor of the Otero Immigration Court, I called the i1mnigrationjudge's clerk to request to appear telephonically for the April 8 hearing due to the COVID-19 pandemic. Because my client was in Tacoma, both I and the court knew that he would be appearing by video-teleconference ("VTC"). The clerk did not decide my request on April 3.

Case 1:20-cv-00852-CJN Document 29-3 Filed 04/20/20 Page 3 of 3
5. On April 6, the clerk called me back and said I could not appear telephonically because my client was appearing by VTC. I was told to appear in person and that the jail in which Otero Immigration Court is located would require me to wear a mask and gloves.
6. When I appeared in person on April 8, the judge told me that I had to appear in person due to technological limitations. I was told that the comi lacked the technological capability to have myself, my client, and the interpreter all participate in the hearing remotely.
7. I asked for a change of venue as the IJ told me that she was going to deny the claim due to last-minute changes on my client's asylum application. I argued that ICE took my client across state lines preventing me from going over the asylum application with him and the staff in Tacoma only recently allowed me to speak to my client for ten minutes one day before his individual hearing. The judge eventually granted my request to change the venue to Tacoma.
8. The immigration judge and I discussed the impact of COVID-19 and the danger it presents to judges, counsel, and detainees. l told her that one of my clients was recently transferred to Otero Detention Center and he witnessed a Guatemalan detainee who had a high fever and was literally shaking. The guards were co-mingling the detainees and not practicing social distancing. The guard that was in the court denied it. The next day it was repmied that an employee and a detainee at the detention center tested positive for COVID - 19.
9. Before I entered the facility, a guard who was not wearing personal protective gear, such as gloves or a mask, took my temperatme with a defective thermometer. The thennometer was not reading my temperature correctly because it took him several attempts to get a reading. During the hearing, the immigration judge, the guard, the judge's clerk, and ICE counsel were all without wearing personal protective equipment. They immigration judge claimed that counsel table was ten feet away from her. She also admitted that the court staff were not being tested for COVID-19 and that they did not have personal protective equipment.
on April 18, 2020 in El Paso, TX.
2

Case 1:20-cv-00852-CJN Document 29-4 Filed 04/20/20 Page 1 of 3
 

Case 1:20-cv-00852-CJN Document 29-4 Filed 04/20/20 Page 2 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
­against­
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,

Civil Action No. 1:20­cv­00852 (CJN)

Defendants.

Declaration of Kelli Stump
I, Kelli Stump, declare as follows:
1. I am an attorney admitted to practice in Oklahoma.
2. I represented a client at an individual merits hearing in the Dallas Immigration Court.
3. My client was detained in the Moore Detention Center in Okmulgee, Oklahoma.
4. My client’s individual merits hearing was originally scheduled for April 16, 2020. My client was to appear by videoteleconference (“VTC”) from Moore Detention Center. Two witnesses who were testifying on behalf of my client were to appear in Dallas Immigration Court in order to appear by VTC. The judge hearing the proceeding was located at the Falls Church Immigration Adjudication Center in Virginia and was to appear by VTC. I was instructed to appear in­person either at the Dallas Immigration Court with the witnesses or at the Moore Detention Center with my client.
5. On March 27, 2020, I filed a motion requesting that the court allow me and the two witnesses to appear telephonically from my office instead of by VTC from the Dallas Immigration Court. Having received no response, I spoke with the Dallas Immigration Court administrator on April 8, 2020, and was directed to resubmit my motions via email for forwarding to the Falls Church court.
6. I followed up with the court again on April 14 and 15, but I still received no response to my motion.

Case 1:20-cv-00852-CJN Document 29-4 Filed 04/20/20 Page 3 of 3 7. Citing their concerns about COVID­19, the two witnesses refused to travel to the Dallas
Immigration Court to testify. I was forced to file an emergency motion amending the witness list the morning of the hearing. 8. Because the court had not responded, I understood that I was required to appear in person at the hearing as originally planned. Although concerned about the risk of COVID­19 exposure, I traveled to the Dallas Immigration Court to do so. However, when I appeared at the hearing, counsel for the government was not present, even though I was never served with any motion from them to appear telephonically. Moreover, the immigration judge expressed surprise that I was present in person.
I declare under penalty of perjury that the foregoing is true and correct. Executed on April 19, 2020 in Oklahoma City, OK.
______________________ Kelli Stump
2

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Case 1:20-cv-00852-CJN Document 29-5 Filed 04/20/20 Page 2 of 3

Case 1:20-cv-00852-CJN Document 29-5 Filed 04/20/20 Page 3 of 3

Case 1:20-cv-00852-CJN Document 29-6 Filed 04/20/20 Page 1 of 3
Exhibit 54

Case 1:20-cv-00852-CJN Document 29-6 Filed 04/20/20 Page 2 of 3

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Case 1:20-cv-00852-CJN Document 29-6 Filed 04/20/20 Page 3 of 3
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Case 1:20-cv-00852-CJN Document 29-7 Filed 04/20/20 Page 1 of 3
Exhibit 55

Case 1:20-cv-00852-CJN Document 29-7 Filed 04/20/20 Page 2 of 3

Case 1:20-cv-00852-CJN Document 29-7 Filed 04/20/20 Page 3 of 3

Case 1:20-cv-00852-CJN Document 29-8 Filed 04/20/20 Page 1 of 3
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Case 1:20-cv-00852-CJN Document 29-8 Filed 04/20/20 Page 2 of 3

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Case 1:20-cv-00852-CJN Document 29-8 Filed 04/20/20 Page 3 of 3
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Case 1:20-cv-00852-CJN Document 29-9 Filed 04/20/20 Page 1 of 3
Exhibit 57

Case 1:20-cv-00852-CJN Document 29-9 Filed 04/20/20 Page 2 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
-against-
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,

Civil Action No. 1:20-cv-00852 (CJN)

Defendants.

Declaration of Stacy Tolchin I, Stacy Tolchin, declare as follows:
1. I am an attorney admitted to practice in the State of California. 2. I am the Vice-Chair of the Board of the National Immigration Project of the National
Lawyers Guild (“NIPNLG”), a Plaintiff in this lawsuit. 3. NIPNLG is a membership-based organization representing 1,500 immigration attorneys,
legal workers, and immigration rights advocates. 4. The following members of NIPNLG have submitted declarations in support of Plaintiffs’
Complaint in this matter: i. Laura G. Rivera ii. Andrea Sáenz
iii. George A. Terezakis iv. Kelly Morgan v. Amy Melissa Bittner vi. Ilana Etkin Greenstein vii. Laura P. Lunn viii. Christina A. Brown

Case 1:20-cv-00852-CJN Document 29-9 Filed 04/20/20 Page 3 of 3 ix. Carlos Moctezuma Garcia x. Michelle Mendez xi. Stacy Tolchin xii. Matthew Green xiii. David Bennion xiv. Allison Boyle xv. Veronica Semino I declare under penalty of perjury that the foregoing is true and correct. Executed on April 19, 2020 in Altadena, CA.
______________________ Stacy Tolchin
2

Case 1:20-cv-00852-CJN Document 29-10 Filed 04/20/20 Page 1 of 4
Exhibit 58

Case 1:20-cv-00852-CJN Document 29-10 Filed 04/20/20 Page 2 of 4

Case 1:20-cv-00852-CJN Document 29-10 Filed 04/20/20 Page 3 of 4

Case 1:20-cv-00852-CJN Document 29-10 Filed 04/20/20 Page 4 of 4

Case 1:20-cv-00852-CJN Document 29-11 Filed 04/20/20 Page 1 of 4

Case 1:20-cv-00852-CJN Document 29-11 Filed 04/20/20 Page 2 of 4

Case 1:20-cv-00852-CJN Document 29-11 Filed 04/20/20 Page 3 of 4

Case 1:20-cv-00852-CJN Document 29-11 Filed 04/20/20 Page 4 of 4

Case 1:20-cv-00852-CJN Document 29-12 Filed 04/20/20 Page 1 of 2
Exhibit 60

Case 1:20-cv-00852-CJN Document 29-12 Filed 04/20/20 Page 2 of 2 Exhibit 60

Declarant/Ex. Number

COVID among hearing participants before/after

Unable to obtain evidence due to COVID

Necessary party unable to fully participate in hearing

Participants required to travel to common locations for hearing

due to COVID or tech issue

States involved

Ex. 52, Stump Decl. ¶¶ 5-8*

¶¶ 5-7

¶¶ 5-7

¶ 8

TX/VA

Ex. 51, Beckett Decl. ¶¶ 4-6*

¶ 7

¶ 6

NM/WA

Ex. 53, Hartnett Decl. ¶¶ 4-6*

¶ 5

¶ 6

PA

Ex. 3, Church Decl. ¶ 11

¶ 17

¶ 15

¶¶ 9, 10-11, 13

MA

Ex. 9, Terezakis Decl. ¶¶ 32-33, 36-41

Ex. 40, Terezakis Supplemental Decl. ¶¶ Ex. 9, ¶ 42; Ex. 40, ¶ 5

Ex. 9, ¶ 33

NY/NJ

Request for continuance of in-person 3-4

proceeding denied or untimely decided, Ex. 28, Edstrom Decl. ¶¶ 7-8

request for telephonic appearance denied or Ex. 54, Edstrom Supplemental Decl. ¶¶ 3-

Ex. 54, ¶¶ 3-4

Ex. 54, ¶¶ 3-4

OK/TX

untimely decided, or due process concerns 4*

compelled in-person appearance

Ex. 31, Steiner Decl. ¶¶ 3-5, 10

¶¶ 3-5, 10

N/A

Ex. 35, Boyle Decl. ¶¶ 7-8

¶¶ 3-6, 10

¶ 9

¶ 9

TX

Ex. 38, Bennion Decl. ¶¶ 2-3

¶ 3

¶ 3

PA

Ex. 6, Rivera Decl. ¶ 23

¶ 23

GA

Ex. 10, Morgan Decl. ¶ 4

¶ 4

MA

Ex. 48, Marzouk Decl. ¶ 6

¶ 6

¶ 6

MA

Ex. 55, Semino Decl. ¶¶ 5-10*

¶¶ 5-6, 10

¶ 4

¶¶ 8-9

LA/NY

Ex. 41, Lingat Decl. ¶¶ 10-17

¶¶ 11, 15

¶¶ 5-10

NJ

Ex. 9, Terezakis Decl. ¶¶ 32-33

"Remote" hearing continuance denied

Ex. 40, Terezakis Supplemental Decl. ¶¶ Ex. 40, ¶ 5 3-4

Ex. 9, ¶ 33

NY/NJ

Ex. 42, Weiner Decl. ¶¶ 7-9

¶¶ 7-8

NY/NJ

Ex. 55, Semino Decl. ¶¶ 7-8*

¶¶ 5-6, 10

¶¶ 8-9

LA/NY

Ex. 2, Ehrlich Decl. ¶ 1

¶¶ 1-3, 7

NJ

Ex. 9, Terezakis Decl. ¶¶ 36-45

¶ 42

NY/NJ

Ex. 13, Bittner Decl. ¶¶ 27-28

¶¶ 27-28

OH

Ex. 22, Hollithron Decl. ¶ 13

¶ 13

¶ 13

CO

Ex. 28, Edstrom Decl. ¶¶ 7-8

Ex. 54, Edstrom Supplemental Decl. ¶¶ 3-

Ex. 54, ¶¶ 3-4

Ex. 54, ¶¶ 3-4

OK

"Remote" hearing conducted or to be 4*

conducted without protecting health or due Ex. 36, Green Decl. ¶¶ 4-6

¶¶ 4-5

¶ 6

PA

process**

Ex. 39, Ford Decl. ¶ 5

¶ 5

OH

Ex. 49, Durham Decl. ¶¶ 4, 6

¶ 6

NE

Ex. 38, Bennion Decl. ¶¶ 2-5

¶¶ 2-3

¶¶ 2-3

PA

Ex. 56, Lopez Supplemental Decl. ¶ 6*

¶¶ 4-5

LA

Ex. 34, Sud-Devaraj Decl. ¶¶ 4-5

Ex. 58, Sud-Devaraj Supplemental Decl.

Ex. 34, ¶ 8; Ex. 57 ¶ 7

Ex. 58, ¶¶ 7-8

Ex. 58, ¶ 7

AZ

¶¶ 7-8*

* Declaration received after reply submitted

** Many standing orders require participants to waive the right to object to the admissibility of documents on the basis that it cannot be inspected, even when the documents has not previously been served on the opposing party. See, e.g. ,

Standing Order, Aurora Immigration Court, https://www.justice.gov/eoir/page/file/1264456/download; Standing Order, Florence Immigration Court, https://www.justice.gov/eoir/page/file/1266931/download; Standing Order, LaSalle

Immigration Court, https://www.justice.gov/eoir/page/file/1261171/download; Standing Order, Las Vegas Immigration Court, https://www.justice.gov/eoir/page/file/1259231/download; Standing Order, Otay Mesa Immigration Court,

https://www.justice.gov/eoir/page/file/1264436/download; see also Ex. 3, Church Decl. ¶ 12; Ex. 6, Rivera Decl. ¶ 23; Ex. 17, Manzanarez Decl. ¶ 19; Ex. 26, Mendez Decl. ¶ 19; Ex. 33, Scott Decl. ¶ 14.

Case 1:20-cv-00852-CJN Document 29-13 Filed 04/20/20 Page 1 of 3
Exhibit 61

Case 1:20-cv-00852-CJN Document 29-13 Filed 04/20/20 Page 2 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
-against-
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,

Civil Action No. 1:20-cv-00852 (CJN)

Defendants.

Declaration of Ilana Etkin Greenstein I, Ilana Etkin Greenstein, declare as follows:
1. I am an attorney admitted to practice in the Commonwealth of Massachusetts.
2. I am the Senior Technical Assistance Attorney for the Immigration Justice Campaign (“IJC”), a Plaintiff in this lawsuit.
3. IJC is a non-profit national organization which facilitates pro bono representation for detained individuals by recruiting, training, and mentoring attorneys and connecting them with individuals who need their legal services in immigration proceedings.
4. The following IJC volunteers have submitted declarations in support of Plaintiffs’ Complaint in this matter:
i. David Ehrlich
ii. Mary Jane Miller
iii. Deva Robbins
iv. Stephanie S. Pengilley
v. Henry D. Hollithron
vi. Veronica Semino

Case 1:20-cv-00852-CJN Document 29-13 Filed 04/20/20 Page 3 of 3

 
 Case 1:20-cv-00852-CJN Document 19 Filed 04/13/20 Page 1 of 58

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

Case 1:20-cv-00852-CJN Document 19 Filed 04/13/20 Page 2 of 58
TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 4
A. The Executive Office for Immigration Review and Its Response to COVID-19..............4 B. U.S. Immigration and Customs Enforcement and Its Response to COVID-19. ...............8 C. This Lawsuit ....................................................................................................................12 LEGAL STANDARD................................................................................................................... 13 ARGUMENT ................................................................................................................................ 14 I. This Court Does Not Have Jurisdiction to Grant Plaintiffs’ TRO Motion......................14
A. The Individual Plaintiffs Lack Article III Standing. ............................................... 14 B. The Organizational Plaintiffs Lack Article III Standing and Are Outside of the
INA’s Zone of Interests. .......................................................................................... 16 C. The INA Prohibits District-Court Review of Plaintiffs’ Claims Arising From
Removal Proceedings. ............................................................................................. 20 D. The INA Bars This Court From Enjoining or Restraining Operation of
Immigration-Court Proceedings or the INA Detention and Removal Provisions. ............................................................................................................... 26 E. The INA Prohibits This Court From Compelling EOIR to Conduct Remote Immigration Proceedings Nationwide..................................................................... 28 II. Plaintiffs Are Not Entitled to a TRO. ..............................................................................29 A. Plaintiffs Are Not Likely to Succeed on the Merits of Their Claims...................... 29 1. EOIR’s and ICE’s Actions Are Not Subject to Review Under the APA and
In Any Event Are Not Arbitrary and Capricious. ............................................ 29 2. EOIR’s and ICE’s Policies Do Not Violate Plaintiffs’ Constitutional or
Statutory Rights to Counsel or Procedural Due Process. ................................. 36 B. Considerations of Harm and the Equities Weigh Strongly Against a TRO. ........... 39 C. Even if This Court Were to Grant a TRO, It Must Be Sharply Limited. ................ 42
i

Case 1:20-cv-00852-CJN Document 19 Filed 04/13/20 Page 3 of 58 CONCLUSION............................................................................................................................. 45
ii

Case 1:20-cv-00852-CJN Document 19 Filed 04/13/20 Page 4 of 58
TABLE OF AUTHORITIES
Federal Cases Abulhawa v. U.S. Dep’t of Treasury,
239 F. Supp. 3d 24 (D.D.C. 2017) .................................................................................... 18
Adams v. Vance, 570 F.2d 950 (D.C. Cir. 1978) .......................................................................................... 45
Aguilar v. ICE, 510 F.3d 1 (1st Cir. 2007) ........................................................................................... 21, 23
Alvarez v. Sessions, 338 F. Supp. 3d 1042 (N.D. Cal. 2018) ............................................................................ 23
Am. Immigration Lawyers Ass’n v. Reno, 199 F.3d 1352 (D.C. Cir. 2000) .................................................................................. 18, 19
American Library Ass’n v. FCC, 401 F.3d 489 (D.C. Cir. 2005) .......................................................................................... 16
Ardestani v. INS, 502 U.S. 129 (1991).......................................................................................................... 39
Ark Initiative v. Tidwell, 749 F.3d 1071 (D.C. Cir. 2014) ........................................................................................ 17
Asylum Seeker Advocacy Project v. Barr, 409 F. Supp. 3d 221 (S.D.N.Y. 2019)......................................................................... 22, 23
Bains v. Schiltgen, No. 97-cv-2573, 1998 WL 204977 (N.D. Cal. Apr. 21, 1998)......................................... 20
Belbacha v. Bush, 520 F.3d 452 (D.C. Cir. 2008) .................................................................................... 13, 27
Benjamin v. U.S. Attorney General, 682 F. App’x 725 (11th Cir. 2017) ................................................................................... 39
Bennett v. Spear, 520 U.S. 154 (1997).................................................................................................... 29, 30
Biwot v. Gonzalez, 403 F.3d 1094 (9th Cir. 2005) ................................................................................ 4, 37, 38
Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211 (D.C. Cir. 1981) .................................................................................. 40, 45
iii

Case 1:20-cv-00852-CJN Document 19 Filed 04/13/20 Page 5 of 58
Block v. Community Nutrition Institute, 467 U.S. 340 (1984).......................................................................................................... 23
California v. Azar, 911 F.3d 558 (9th Cir. 2018) ............................................................................................ 45
Castro-O’Ryan v. U.S. Dep’t of Immigration and Naturalization, 847 F.2d 1307 (9th Cir. 1987) .......................................................................................... 37
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) .......................................................................................... 40
City of Los Angeles v. Lyons, 461 U.S. 95 (1983)............................................................................................................ 14
Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013).................................................................................................... 14, 41
Clarke v. Secs. Indus. Ass’n, 479 U.S. 388 (1987).......................................................................................................... 19
Cobell v. Norton, 392 F.3d 461 (D.C. Cir. 2004) .......................................................................................... 31
Cohen v. United States, 650 F.3d 717 (D.C. Cir. 2011) .......................................................................................... 31
Columbia Hosp. for Women Found., Inc. v. Bank of Tokyo-Mitsubishi, Ltd., 15 F. Supp. 2d 1 (D.D.C. 1997) ........................................................................................ 14
Cuban Am. Bar Ass’n, Inc. v. Christopher, 43 F.3d 1412 (11th Cir. 1995) .......................................................................................... 18
Cutler v. Hayes, 818 F.2d 879 (D.C. Cir. 1987) .......................................................................................... 32
Dawson v. Asher, No. 20-cv-0409, 2020 WL 1304557 (W.D. Wash. Mar. 19, 2020) ............................ 15, 41
DHS v. New York, 140 S. Ct. 599 (2020) ........................................................................................................ 44
Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003).............................................................................................. 37
DRG Funding Corp. v. HUD, 76 F.3d 1212 (D.C. Cir. 1996) .......................................................................................... 30
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El Rio Santa Cruz Neighborhood Health Ctr. v. HHS, 396 F.3d 1265 (D.C. Cir. 2005) ........................................................................................ 30
Fed’n for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897 (D.C. Cir. 1996) ............................................................................................ 20
Federal Defenders of New York, Inc. v. Federal Bureau of Prisons, No. 19-1778, 2020 WL 1320886 (2d Cir. 2020) .............................................................. 20
Gill v. Whitford, 138 S. Ct. 1916 (2018) ...................................................................................................... 42
Gonzalez v. INS, 82 F.3d 903 (9th Cir. 1996) .............................................................................................. 37
Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999).......................................................................................................... 43
Haitian Refugee Ctr. v. Gracey, 809 F.2d 794 (D.C. Cir. 1987) .......................................................................................... 18
Hamama v. Adducci, 912 F.3d 869 (6th Cir. 2018) ............................................................................................ 27
Helling v. McKinney, 509 U.S. 25 (1993)............................................................................................................ 15
Hutchins v. District of Columbia, 188 F.3d 531 (D.C Cir. 1999) ........................................................................................... 24
Innovation Law Lab v. McAleenan, 924 F.3d 503 (9th Cir. 2019) ............................................................................................ 45
Innovation Law Lab v. Nielsen, 310 F. Supp. 3d 1150 (D. Or. 2018) ................................................................................. 19
INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984).............................................................................................. 36
J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir. 2016) ................................................................................... passim
Jennings v. Rodriguez, 138 S. Ct. 830 (2018) ........................................................................................................ 21
Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) .................................................................................... 13, 27
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Koller By and Through Koller v. Richardson-Merrell, Inc., 737 F.2d 1038 (D.C. Cir. 1984) ........................................................................................ 36
Kowalski v. Tesmer, 543 U.S. 125 (2004).................................................................................................... 18, 19
Kucana v. Holder, 558 U.S. 233 (2010).......................................................................................................... 28
Landon v. Plasencia, 459 U.S. 21 (1982)............................................................................................................ 45
Lara-Torres v. Ashcroft, 383 F.3d 968 (9th Cir. 2004) .................................................................................. 4, 37, 38
Las Americas v. Trump, No. 19-cv-2051, 2020 WL 1671584 (D. Or. Apr. 2, 2020) ....................................... passim
Liadov v. Mukasey, 518 F.3d 1003 (8th Cir. 2008) .......................................................................................... 34
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990).......................................................................................................... 29
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994).......................................................................................................... 43
Maldonado-Perez v. INS, 865 F.2d 328 (D.C. Cir. 1989) .......................................................................................... 36
Martinez v. Napolitano, 704 F.3d 620 (9th Cir. 2012) ............................................................................................ 22
Martinez v. Nielsen, 341 F. Supp. 3d 400 (D.N.J. 2018) ................................................................................... 25
Mendez v. Cooper, No. 19-cv-01701, 2019 WL 2577477 (D. Ariz. Apr. 17, 2019) ....................................... 34
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010).......................................................................................................... 42
Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. 2012) .......................................................................................... 38
Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67 (D.D.C. 2001) .................................................................................... 13
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Munaf v. Geren, 553 U.S. 674 (2008).......................................................................................................... 21
Nat’l Conference on Ministry to Armed Forces v. James, 278 F. Supp. 2d 37 (D.D.C. 2003) .................................................................................... 14
Neb. Dep’t of Health & Human Servs. v. Dep’t of Health & Human Servs., 435 F.3d 326 (D.C. Cir. 2006) .......................................................................................... 45
Ngure v. Ashcroft, 367 F.3d 975 (8th Cir. 2004) ............................................................................................ 32
Nken v. Holder, 556 U.S. 418 (2009).......................................................................................................... 40
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004)........................................................................................................ 3, 31
O.A. v. Trump, 404 F. Supp. 3d 109 (D.D.C. 2019) .................................................................................. 25
O’Shea v. Littleton, 414 U.S. 488 (1974).......................................................................................................... 14
Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998).......................................................................................................... 16
P.L. v. ICE, No. 19-cv-1336, 2019 WL 2568648 (S.D.N.Y. June 21, 2019) ................................. 22, 23
Perez v. Sessions, 690 F. App’x 360 (6th Cir. 2017) ..................................................................................... 39
Pub. Citizen v. Nat’l Highway Traffic Safety Admin., 374 F.3d 1251 (D.C. Cir. 2004) ........................................................................................ 32
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639 (2012).......................................................................................................... 27
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999).......................................................................................................... 24
Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) ........................................................................................ 20
Scenic America, Inc. v. DOT, 836 F.3d 42 (D.C. Cir. 2016) ............................................................................................ 16
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Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017) ...................................................................................................... 18
Sibley v. Obama, 810 F. Supp. 2d 309 (D.D.C. 2011) .................................................................................. 13
Skorusa v. Gonzales, 482 F.3d 939 (7th Cir. 2007) ............................................................................................ 37
Sophia v. Decker, No. 19-cv-9599, 2020 WL 764279 (S.D.N.Y. Feb. 14, 2020) ......................................... 22
Spencer Enters., Inc. v. United States, 345 F.3d 683 (2003) .......................................................................................................... 29
Summers v. Earth Island Inst., 555 U.S. 488 (2009).......................................................................................................... 42
Trump v. Hawaii, 138 S. Ct. 2392 (2018) ...................................................................................................... 43
Trump v. IRAP, 137 S. Ct. 2080 (2017) ...................................................................................................... 44
U.S. Ass’n of Reptile Keepers, Inc. v. Jewell, 106 F. Supp. 3d 126 (D.D.C. 2015) .................................................................................. 44
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950).......................................................................................................... 32
United States v. Martinez-Fuerte, 428 U.S. 543 (1976).......................................................................................................... 40
United States v. Salerno, 481 U.S. 739 (1987).......................................................................................................... 34
Univ. of Texas v. Camenisch, 451 U.S. 390 (1981).......................................................................................................... 44
Vazquez Perez v. Decker, No. 18-cv-10683, 2019 WL 4784950 (S.D.N.Y. Sept. 30, 2019) .................................... 27
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978)...................................................................................................... 4, 32
Vetcher v. Sessions, 316 F. Supp. 3d 70 (D.D.C. 2018) .......................................................................... 3, 22, 25
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Virginia Soc’y for Human Life v. FEC, 263 F.3d 379 (4th Cir. 2001) ............................................................................................ 43
Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)............................................................................................ 13, 29, 40, 42
Wisconsin Gas Co. v. FERC, 758 F.2d 669 (1985).......................................................................................................... 42
Youngberg v. Romeo, 457 U.S. 307 (1982).......................................................................................................... 40
Zhu v. Gonzales, 411 F.3d 292 (D.C. Cir. 2005)........................................................................................... 28
Federal Statutes 5 U.S.C. § 555(b) .......................................................................................................................... 39 5 U.S.C. § 702......................................................................................................................... 19, 29 5 U.S.C. § 704......................................................................................................................... 29, 30 5 U.S.C. § 706(1) .......................................................................................................................... 31 5 U.S.C. § 706(2) .......................................................................................................................... 43 8 U.S.C. § 1103(g) .......................................................................................................................... 5 8 U.S.C. § 1225(b)(1)(B)(ii) ........................................................................................................... 9 8 U.S.C. § 1225(b)(2)(A) ................................................................................................................ 9 8 U.S.C. § 1226(a) .......................................................................................................................... 5 8 U.S.C. § 1226(c) ...................................................................................................................... 5, 9 8 U.S.C. § 1229a(a)(1) .................................................................................................................... 5 8 U.S.C. § 1229a(b)(2)(A) ........................................................................................................ 3, 28 8 U.S.C. § 1231(a)(2)...................................................................................................................... 9 8 U.S.C. § 1231(g)(1) ..................................................................................................................... 9 8 U.S.C. § 1252(a)(2)(B)(ii) ..................................................................................................... 3, 28 8 U.S.C. § 1252(a)(5)............................................................................................................. passim
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8 U.S.C. § 1252(b)(9) ............................................................................................................ passim 8 U.S.C. § 1252(f)(1) .......................................................................................................... 3, 26, 27 8 U.S.C. § 1252(g) .................................................................................................................. 24, 26 8 U.S.C. § 1329............................................................................................................................. 20 8 U.S.C. § 1362................................................................................................................. 22, 36, 39 28 U.S.C. § 1331........................................................................................................................... 24 28 U.S.C. § 1651(a) .......................................................................................................... 13, 25, 27 Federal Regulations 8 C.F.R. § 1003.10(b) ................................................................................................................. 5, 6 8 C.F.R. § 1003.12 .......................................................................................................................... 5 8 C.F.R. § 1003.18 ...................................................................................................................... 5, 8 8 C.F.R. § 1003.19 .......................................................................................................................... 5 8 C.F.R. § 1003.25 .......................................................................................................................... 5 8 C.F.R. § 1003.27 .......................................................................................................................... 5 8 C.F.R. § 1003.29 ...................................................................................................................... 5, 8 8 C.F.R. § 1003.31 ...................................................................................................................... 5, 8 8 C.F.R. § 1003.38 .......................................................................................................................... 5 8 C.F.R. § 1003.40 .......................................................................................................................... 5 Other Authorities Administrative Office of the U.S. Courts, Judiciary Preparedness for Coronavirus (COVID-19),
https://www.uscourts.gov/news/2020/03/12/judiciary-preparedness-coronavirus-covid-19 ........................................................................................................................................... 34 Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017) ......................................................................................................................... 43 The Federalist No. 78 (Alexander Hamilton) (Clinton Rossiter ed., 1961).................................. 43
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INTRODUCTION This Court should deny Plaintiffs’ extraordinary request for this Court to broadly suspend in-person immigration-court hearings, assume oversight over the immigration-detention system, and order the release of tens of thousands of aliens despite the laws enacted by Congress. The federal government is responding expeditiously, carefully, and thoroughly to address the challenges presented by COVID-19. That comprehensive response includes tailored and effective measures taken by the Executive Office for Immigration Review (EOIR) over the immigration courts and by U.S. Immigration and Customs Enforcement (ICE) over immigration detention facilities. The United States’ immigration courts, which adjudicate removability and claims for relief from removal of hundreds of thousands of aliens, have faced the same considerable challenges as other court systems have from the COVID-19 pandemic. The immigration courts have responded swiftly to those challenges by postponing all immigration hearings for non-detained aliens through May 1, 2020; limiting in-person appearances in courts where possible; and, reminding immigration judges—who are independent administrative judges—of their authority to waive appearances, grant continuances, decide cases on the papers, and conduct hearings by video or telephone where possible to limit the risk of exposure. See Ex. 1, Decl. of EOIR Director James McHenry ¶¶ 44– 54, 68–70; Ex. 2, EOIR Policy Mem. 20-10, Immigration Court Practices During the Declared National Emergency Concerning the COVID-19 Outbreak (EOIR Mem.). Similarly, ICE “is taking necessary and prompt measures” to curb the spread of COVID-19 while still permitting robust access to counsel and ensuring the safety of staff, detainees, and legal representatives. Ex. 3, E COVID-19 Pandemic Response Requirements (ICE Pandemic Response) 1; Ex. 4, Decl. of Russell Hott, Acting Asst. Director of ICE’s Custody Management Division ¶¶ 19–30. Such steps potentially include “[a]dding all immigration attorneys of record to the Talton Pro-bono platform,”
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“[l]everaging technology (e.g., tablets, smartphones) to facilitate attorney/client communication” and “[w]orking with the various detention contractors and telephone service providers to ensure that all detainees receive some number of free calls per week.” ICE Pandemic Response 12–13.
Against these efforts, Plaintiffs—three organizations and five detained aliens—move for an extraordinary order that would shut down all remaining immigration-court operations everywhere and require the release of tens of thousands of criminal and other aliens unless ICE immediately implements Plaintiffs’ preferred policies. Their TRO Motion centers on the first three claims in their Complaint alleging that EOIR’s and ICE’s COVID-19 responses are arbitrary and capricious under the Administrative Procedure Act (APA), violate the Individual Plaintiffs’ statutory right to counsel under the Immigration and Nationality Act (INA), and violate the Individual Plaintiffs’ right to procedural due process. See Mot. for Temporary Restraining Order (Mot.; ECF No. 7); Compl. ¶¶ 66–82. And although they ask for universal relief applicable to all immigration courts and all immigration detention facilities (including, apparently, those operated by state and local authorities), Plaintiffs do not purport to represent a class or raise class claims.
Like the only other court to address similar claims seeking universal relief, see Las Americas v. Trump, No. 19-cv-2051, 2020 WL 1671584, at *2 (D. Or. Apr. 2, 2020), this Court should reject this request.
To start, this Court does not have jurisdiction to grant Plaintiffs’ TRO Motion. First, the Individual Plaintiffs lack Article III standing to bring their APA claim and their access-to-counsel and procedural-due-process claims because their requests rest on speculation. Plaintiffs are either unrepresented or have not explained why remote communication is insufficient, and none of them have imminent immigration-court hearings that cannot be conducted by remote means. Second, the Organizational Plaintiffs fail to establish standing because they do not identify a specific
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“legally protected interest” of the organizations or their members that has been impinged upon and do not establish that the relief they seek is likely to redress their alleged injuries. They also cannot state an APA claim because their interests are not within the INA’s zone of interests. Third, this Court lacks jurisdiction over all claims because the INA requires “all questions of law and fact ... arising from any action taken or proceeding brought to remove an alien from the United States” to be reviewed exclusively in federal courts of appeals—not district courts—after exhausting administrative proceedings, 8 U.S.C. §§ 1252(b)(9), 1252(a)(5), including Plaintiffs’ “policiesand-practices challenges,” right-to-counsel claims, and procedural-due-process challenges, J.E.F.M. v. Lynch, 837 F.3d 1026, 1029, 1033, 1035 (9th Cir. 2016); Vetcher v. Sessions, 316 F. Supp. 3d 70, 76 (D.D.C. 2018). Fourth, Congress has prohibited this Court from granting Plaintiffs’ requested injunctive relief against the operation of statutes governing removal proceedings and alien detention. See 8 U.S.C. § 1252(f)(1) (“Limit on Injunctive Relief”). Finally, the INA prohibits this Court from requiring EOIR to conduct immigration proceedings exclusively by remote means—which, in any event, EOIR has already “remind[ed]” its immigration judges that they may do. EOIR Mem. 2. The use of video- or teleconferencing in immigration proceedings is committed by statute to the government’s discretion, see 8 U.S.C. § 1229a(b)(2)(A), and the INA prohibits district-court review of the government’s discretionary determinations, id. § 1252(a)(2)(B)(ii).
Even if this Court possesses jurisdiction, it should still deny a TRO because all injunctive factors favor the government. First, Plaintiffs cannot succeed on the merits of their APA claim or their right-to-counsel and procedural-due-process claims. The APA may not be invoked to demand “day-to-day agency management,” Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 67 (2004), which is committed to agency authority and is entitled to deference, see Vermont Yankee
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Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 543 (1978), particularly in the immigration context. EOIR and ICE are exercising that authority soundly, and Plaintiffs provide no basis to hamstring these agencies’ abilities to respond to the evolving health crisis. Plaintiffs also fail to explain how EOIR’s decision not to suspend certain essential in-person immigration hearings nationwide or ICE’s disease-prevention or attorney-access protocols are “tantamount to denial of counsel.” Biwot v. Gonzalez, 403 F.3d 1094, 1098 (9th Cir. 2005). Nor could they, since such claims require a backward-looking inquiry into “the actual substance of the hearing[s],” Lara-Torres v. Ashcroft, 383 F.3d 968, 973 (9th Cir. 2004)—which, here, have not occurred—to determine whether there was a prejudicial violation. Second, Plaintiffs’ speculative claims of future injury do not outweigh the public interest in retaining EOIR’s and ICE’s flexibility to respond to changing circumstances. And even if emergency relief were appropriate, the scope of Plaintiffs’ requested relief is overbroad and risks harm to individuals who Plaintiffs purport to help. At a minimum the Court must limit any relief to the Individual Plaintiffs named in the complaint and any actual clients of the Organizational Plaintiffs’ members whom they can identify as having imminent immigration-court hearings.
BACKGROUND A. The Executive Office for Immigration Review and Its Response to COVID-19.
Immigration-Court System. EOIR is a component of the U.S. Department of Justice (DOJ) that oversees a system of 69 immigration courts located across the country. McHenry Decl. ¶ 9. Generally, when the U.S. Department of Homeland Security (DHS) seeks to remove an alien from the United States, DHS issues a “notice to appear” that explains the “charges against the alien and the statutory provisions alleged to have been violated.” 8 U.S.C. § 1229. The INA sets out a range of grounds that can make an alien removable from the United States. See id. §§ 1182, 1227. Under 8 U.S.C. § 1229a, immigration judges decide whether aliens are removable and resolve claims
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from individual aliens seeking relief from removal. Id. § 1229a(a)(1). Congress has mandated that certain categories of aliens must be detained during removal proceedings. See, e.g., id. § 1226(c). For other categories of aliens, immigration judges may conduct bond hearings and grant release on bond in certain circumstances. See id. § 1226(a); see also McHenry Decl. ¶¶ 8–43 (describing proceedings in immigration court). Aliens may appeal from the immigration judges’ decisions, including decisions on custody and bond, to the Board of Immigration Appeals (BIA). 8 C.F.R. § 1003.38. An alien may seek judicial review of a BIA decision by filing a petition for review in the court of appeals for the circuit where the immigration court that heard the claim is located. 8 U.S.C. §§ 1252(a)(5), (b)(9).
The Attorney General oversees EOIR, and he has authority to establish regulations governing the operation of the immigration courts and to carry out the provisions of the INA. See 8 U.S.C. § 1103(g). “[T]o assist in the expeditious, fair, and proper resolution of matters” before the immigration courts, 8 C.F.R. § 1003.12, there are various regulations that govern the conduct of removal proceedings, including regulations giving immigration judges authority over “scheduling cases,” id. § 1003.18; and to make custody determinations, id. § 1003.19; grant continuances “for good cause shown,” id. § 1003.29; waive the “presence of the parties” in certain circumstances or permit telephonic or video hearings, id. § 1003.25; limit public access to hearings, id. § 1003.27; “set and extend time limits” for filings, id. § 1003.31; and “establish local operating procedures,” id. § 1003.40. Immigration judges “exercise the powers and duties delegated to them by the [INA] and by the Attorney General through regulation,” and “[i]n deciding the individual cases before them,” “exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” Id. § 1003.10(b). “In all cases,
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immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the Act and regulations.” Id.
Immigration-Court Response to the Pandemic. In response to the outbreak of COVID-19, EOIR “has followed a path similar to that of other courts” that have “grappled with the operational challenges posed by the outbreak,” and have not closed entirely but have scaled back operations to “what may be characterized as essential or critical services,” including processing filings by mail and email, adjudicating motions or filings that can be resolved without a hearing, “conduct[ing] critical hearings of individuals in custody,” and issuing announcements on operational status as facts develop. McHenry Decl. ¶¶ 44–45.
On March 18, 2020, EOIR “postponed all removal hearings of non-detained aliens through at least April 10, 2020,” and later postponed hearings for non-detained aliens through May 1. McHenry Decl. ¶¶ 53, 68. On March 18, the Director of EOIR also issued a Policy Memorandum modeled on orders issued by federal district courts adopting guidance for “all immigration court cases effective immediately” to “promote the safety of immigration court personnel, representatives, aliens, attorneys for [DHS], and the general public during the ongoing national emergency related to the COVID-19 outbreak.” Id. ¶¶ 47–49; EOIR Mem. 1–4.
Among other things, EOIR restricted access to immigration courts for individuals at risk of having COVID-19. EOIR Mem. 2; McHenry Decl. ¶¶ 47–48. EOIR also reminded immigration judges of their authority to take a range of actions “for preventative purposes to minimize contact among individuals involved in immigration proceedings,” and advised that immigration judges “may consider applicable public health guidance in exercising these authorities.” EOIR Mem. 2; see also McHenry Decl. ¶¶ 47–49. To this end, the Director advised immigration judges that they “may waive the presence of represented aliens”; “grant a motion for a continuance upon a showing
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of good cause”; “place reasonable limitations upon the number in attendance at a hearing” or “hold a closed hearing”; “issue standing orders, including orders regarding telephonic appearances by representatives”; waive various requirements that would normally apply to the proceedings; conduct “hearing by video teleconferencing (VTC) where operationally feasible” or by telephone in certain circumstances; and, “encourage[d] immigration judges to resolve as many cases as practicable without the need for a hearing and, thus, to minimize contact among individuals involved in immigration proceedings.” EOIR Mem. 2–3; see also McHenry Decl. ¶¶ 47–49.
The Director also noted that while “the ultimate disposition of any particular case remains committed to the immigration judge in accordance with the law,” he “encouraged [parties] to resolve cases through written pleadings, stipulations, and joint motions” where possible, noted holding certain categories of hearings was “disfavored,” and provided that hearings that must go forward, such as for detained aliens, should be conducted by remote means “to the maximum extent practicable in accordance with the law.” EOIR Mem. 3–4; McHenry Decl. ¶¶ 47–49. EOIR thus committed to “using alternative hearing mediums” as much as possible to “further minimize in-person interaction and reduce the risk of spread of COVID-19.” EOIR Mem. 3.
Although the immigration courts have significantly scaled back operations, they continue to carry out essential functions such as holding bond hearings for detained aliens or other hearings that may lead to an alien’s release. McHenry Decl. ¶¶ 31–36. The outbreak has generated demand for EOIR to hold more or more-immediate hearings, including litigation and threatened litigation in other district courts requesting that immigration courts expedite certain types of hearings. See id. ¶¶ 34, 67. For hearings that must proceed, EOIR has developed court-specific plans to ensure that the hearings can take place through remote means and are consistent with social-distancing practices even when individuals are in the same location, such as where immigration courts are
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located in detention facilities. Ex. 5, Decl. of Acting Chief Immigration Judge Christopher Santoro ¶¶ 6–11. Immigration courts must also remain open to accept certain urgent filings, including motions to reopen or stay removal, and EOIR has now provided means for aliens to file such motions electronically in every immigration court and the BIA. Id. ¶¶ 61, 71, 93. Closing courts to such motions would leave aliens without the ability to seek urgent relief from removal. Id. ¶ 61. Various statutes and court orders require immigration judges to take certain actions within strict timelines, and closing the immigration courts completely may violate those orders. Id. ¶ 67.
Immigration judges have authority to extend deadlines if necessary and to excuse untimely filings caused by the outbreak where appropriate, as courts have done with other emergencies. McHenry Decl. ¶¶ 21–26; see also 8 C.F.R. §§ 1003.18, 1003.29, 1003.31. Immigration judges also have authority to issue standing orders and adopt local operating procedures, and many courts “have done so over the past three weeks in response to the COVID-19 and have tailored them to the particular circumstances of their respective dockets.” McHenry Decl. ¶ 40. For aliens who receive in absentia orders, immigration judges can reopen the proceedings for aliens who show that they did not attend the hearing because they did not receive proper notice or for other exceptional circumstances. Id. ¶ 18.
Finally, EOIR has set up systems and methods for communicating updates and changes to immigration-court operations as they develop, including through posting updates on EOIR’s website. McHenry Decl. ¶¶ 73–78. EOIR has also worked to correct any earlier inconsistent communications and has developed additional procedures for ensuring clear, consistent, and easily accessible communications going forward. Id. ¶¶ 59–60. B. U.S. Immigration and Customs Enforcement and Its Response to COVID-19.
ICE is a DHS agency charged with protecting the United States from cross-border crime and illegal immigration that threatens national security and public safety. Hott Decl. ¶ 5. ICE’s
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Enforcement and Removal Operations’ (ERO) mission is “to identify, arrest, and remove aliens who present a danger to national security or are a risk to public safety, as well as those who enter the United States illegally or otherwise undermine the integrity of our immigration laws and our border control efforts.” Id. ¶ 6. Congress mandated that certain aliens must be detained during removal proceedings or pending their removal, see, e.g., 8 U.S.C. §§ 1225(b)(1)(B)(ii), 1225(b)(2)(A), 1226(c), 1231(a)(2), and ICE retains discretion to “arrange for appropriate places of detention” during removal proceedings or prior to removal, id. § 1231(g)(1). ICE houses these aliens in ICE Health Service Corps (IHSC)-staffed facilities; non-IHSC-staffed, ICE-dedicated facilities; or contract facilities while they await adjudication of their case or removal. See Hott Decl. ¶¶ 6, 11–13.
ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention-and-control protocols, and issuing guidance to staff for the screening and management of potential exposure among detainees. See Hott Decl. ¶ 20. ICE directed its field leadership to review their detainees’ cases and consider release for those who are vulnerable to COVID-19. Ex. 6, Assistant Director Peter Berg., Field Operations, “Updated Guidance: COVID-19 Detained Docket Review” 1–2 (ICE Docket Guidance). Such detainees include those who are over 60, pregnant or who have recently given birth, and those with a chronic illness that makes them immune-compromised. Id. The presence of any of these factors is a “significant discretionary factor weighing in favor of release” for those who are eligible. Id.
To safeguard those in its custody, ICE has implemented multiple measures that are in compliance with CDC guidance. See ICE Pandemic Response 5. These CDC-compliant measures include robust screening of detainees for COVID-19 symptoms or potential exposure and followon monitoring, treatment, and cohorting for those detainees who display symptoms or test positive,
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and other measures to limit exposure to COVID-19 from individuals entering these facilities. See ICE Pandemic Response 5–16; Hott Decl. ¶¶ 19–23.
ICE remains committed to ensuring that detainees are able to communicate with legal representatives and has issued guidance to the facilities to that effect. Hott Decl. ¶¶ 24–27. Individual facilities have implemented ICE guidance in various ways to correspond to each individual facility’s options for providing robust access to attorney-client communication by various means. For example, the La Palma Correctional Center in Eloy, Arizona, where Plaintiffs Napoles Vaillant, Rodriguez Cedeno, and Guerrero-Cornejo are detained, Compl. ¶¶ 14, 15, 17, allows in-person and telephonic attorney conferences. See Ex. 7, Decl. of Jason Ciliberti ¶¶ 25– 33. In-person visits are permitted on Monday through Friday from 8:00 AM to 5:00 PM, and on weekends from 8:00 AM to 12:00 PM, and can be scheduled based on an attorney’s request. Id. ¶ 25. Any visitors—including attorneys, consular officers, and legally mandated Congressional visitors—must wear personal protective equipment (PPE) and be screened for COVID-19 exposure prior to entering. Id. ¶ 19. Attorneys can also request that their clients call them by sending an email to a dedicated inbox, which will be delivered to the detainee by facility staff. Id. ¶ 27.a. Phones are available throughout the facility, and attorney call are not recorded. Id. ¶¶ 28.a, 29.a, 31. For example, on April 6, 2020, Plaintiff Guerrero-Cornejo was given a message to call his attorney that provided the phone number he should call. Id. ¶ 30. Since January 3, 2020, Plaintiff Rodriguez Cedeno has had 19 official attorney visits, with the four most recent occurring between March 4 and March 12, 2020. Id. Since January 3, 2020, Plaintiff Enrique Napoles Vaillant has had 18 official attorney visits, with the four most recent occurring in the first two weeks of March. Id.
The Eloy Detention Center in Eloy, Arizona, where Plaintiff Arliaga-Cobas is detained,
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Compl. ¶ 16, allows in-person and telephonic attorney conferences. See Ciliberti Decl. ¶¶ 25–33. In-person visits are permitted daily from 8:00 AM to 5:00 PM, or outside those hours if requested. Id. ¶ 25. Any permitted visitors must wear PPE and be screened for COVID-19 exposure prior to entering the facility. Id. ¶ 19. Attorneys can also request that their clients call them by sending a message to a dedicated inbox, which will be delivered to the detainee by facility staff. Id. ¶ 27.b. Phones are available throughout the facility, including in private booths. See id. ¶¶ 28.b, 29.b. Calls with attorneys are not recorded. Id. ¶ 31.
The Pine Prairie ICE Processing Center in Pine Prairie, Louisiana, where Plaintiff Velasquez Quiala is detained, Compl. ¶ 18, allows in-person, telephone, and VTC attorney-client conferences. Ex. 8, Decl. of Alcide R. Benoit ¶¶ 27–38. Attorneys can schedule phone or VTC conferences with their clients by emailing a request to a dedicated inbox the preceding day, along with the date and time of the requested conference, some basic information about the detainee and the attorney, and a Skype address and phone number. Id. ¶ 28. In-person visits are scheduled similarly. Id. ¶ 31. Detainees may request to call their attorneys through their case manager, who contacts the attorney and schedules a call. Id. ¶ 30. Attorneys who visit the facility in-person must wear PPE and be screened for COVID-19 exposure prior to entering the facility. Id. ¶ 33–34. Attorney visits occur in the open-space visitation area, where attorneys and their clients are seated six feet apart with a table in between. Id. ¶ 36. Plaintiff Velasquez Quiala had a VTC conference with his attorney on March 6, 2020. Id. ¶ 42.
Other facilities discussed in Plaintiffs’ motion papers also have facilitated attorney access. The Otay Mesa Detention Center in California allows attorneys and detainees to meet via 26 VTC units in the facility’s lobby or by telephone. Ex. 9, Decl. of Kelley Beckhelm ¶¶ 24–25. Attorneys may meet their clients at the Stewart Detention Center in Georgia in person with a secure divider
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in between, or communicate confidentially by telephone or VTC. Ex. 10, Decl. of John Bretz ¶ 18. The Elizabeth Contract Detention Facility in Newark, New Jersey, can accommodate nine onehour telephonic legal visits in three private rooms per day, for a total of 27 timeslots for its detainees. Ex. 11, Decl. of Jose Simao ¶ 11. The Butler County Jail in Hamilton, Ohio, allows attorneys with PPE to visit clients in person and provides detainees with surgical masks, or allows to meet with clients through closed circuit audio/video equipment from the lobby. Ex. 12, Decl. of Christopher L. LaBier ¶ 22. And the Folkston ICE Processing Center gives detainees access to telephones, mail, and Skype-enabled devices. Ex. 13, Decl. of Brian Allen ¶ 17. C. This Lawsuit
Plaintiffs are three organizations that assist immigration attorneys (the Organizational Plaintiffs) and five individuals housed at three immigration detention facilities in Arizona and Louisiana (the Individual Plaintiffs). Compl. ¶¶ 10–18. They filed this lawsuit on March 30, 2020, alleging that EOIR has failed to enact nationwide policies to address COVID-19 in immigration courts and that ICE has failed to enact nationwide policies with respect to attorney-client visitation and participation in court proceedings while in detention facilities, and that EOIR’s and ICE’s existing policies (which differ by locality) violate certain statutory and constitutional provisions. Compl. ¶¶ 36–65, 70, 77, 81, 91–93, 100, 109. Plaintiffs do not assert any class claims, but they ask the Court to suspend in-person immigration hearings nationwide and order EOIR and ICE to promulgate a variety of nationwide procedures or, in the alternative, to temporarily release tens of thousands of detained aliens. Id. at 27–28. The Individual Plaintiffs assert claims under the INA, the Administrative Procedure Act (APA), the First Amendment, and the Fifth Amendment’s Due Process Clause. Id. ¶¶ 66–82, 86–93, 101–09. The Organizational Plaintiffs assert claims under the APA, the First Amendment, and the Due Process Clause. Id. ¶¶ 66–72, 83–85, 94–100.
On April 8, 2020, Plaintiffs moved for a TRO on only their APA claim (raised by all
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Plaintiffs) and their right-to-counsel and procedural-due-process claims (raised only by the Individual Plaintiffs). Mot. 30 n. 58; see Compl. ¶¶ 73–77. They seek an order requiring EOIR to “[s]uspend all in-person non-bond hearings and immediately convert all in-person bond hearings to remote hearings; [p]romulgate policies and procedures that, at a minimum, permit remote court appearances by all necessary participants (e.g., court personnel, detained persons, counsel, interpreters, transcription); and [p]ermit continuances as of right due to COVID-19,” Mot. 2–3, and requiring ICE to “[p]romulgate policies and procedures enabling remote interconnection by and with all necessary participants in court appearances; [f]acilitate communications between detained persons and immigration courts to enable the submission of requests for rescheduling and for continuance; and [d]evelop policies, procedures, and facilities that will enable those who are detained to obtain, and counsel to provide legal advice remotely and without monitoring, and with adequate protection of human health,” Mot. 3; see also Proposed Order 1–6 (ECF No. 7-37).
LEGAL STANDARD “A temporary restraining order is an extraordinary remedy, one that should be granted only when the moving party, by a clear showing, carries the burden of persuasion.” Sibley v. Obama, 810 F. Supp. 2d 309, 310 (D.D.C. 2011). “The court considers the same factors in ruling on a motion for a temporary restraining order and a motion for a preliminary injunction.” Morgan Stanley DW Inc. v. Rothe, 150 F. Supp. 2d 67, 72 (D.D.C. 2001). The movant must demonstrate (1) that it is likely to succeed on the merits of its claims; (2) that it is likely to suffer an irreparable injury in the absence of injunctive relief; (3) that the balance of equities tips in its favor; and (4) that the proposed injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). The All Writs Act, 28 U.S.C. § 1651(a), does not absolve a party seeking a TRO from satisfying the four-factor test for preliminary relief. See Belbacha v. Bush, 520 F.3d 452, 457 (D.C. Cir. 2008); Kiyemba v. Obama, 561 F.3d 509, 513 n.3 (D.C. Cir. 2009).
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When the movant seeks mandatory, rather than prohibitory, injunctive relief, the movant “must meet a higher standard than in the ordinary case by showing clearly that he or she is entitled to relief or that extreme or very serious damage will result from the denial of the injunction.” Columbia Hosp. for Women Found., Inc. v. Bank of Tokyo-Mitsubishi, Ltd., 15 F. Supp. 2d 1, 4 (D.D.C. 1997) (quotation makes and citation omitted), aff’d, 159 F.3d 636 (D.C. Cir 1998). A mandatory preliminary injunction “should not issue ... unless the facts and the law clearly favor the moving party.” Nat’l Conference on Ministry to Armed Forces v. James, 278 F. Supp. 2d 37, 43 (D.D.C. 2003) (internal quotations omitted).
ARGUMENT I. This Court Does Not Have Jurisdiction to Grant Plaintiffs’ TRO Motion.
A. The Individual Plaintiffs Lack Article III Standing. The Individual Plaintiffs lack Article III standing to bring their APA claim (Claim I) or access-to-counsel claims (Claims II & III) because they do not “satisfy the threshold requirement” of “alleg[ing] an actual case or controversy.” O’Shea v. Littleton, 414 U.S. 488, 493 (1974). Where, as here, the relief sought is prospective relief only, a plaintiff must demonstrate a risk of future injury that is both “real” and “immediate” and neither “conjectural” nor “hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95, 102–03 (1983). A plaintiff seeking forward-looking relief bears the burden of proving the existence of a future “threatened injury [that is] certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013). Plaintiffs’ requests for relief fall short because they rest on speculation related to immigration-court hearings and access to counsel, and the speculative effect of EOIR’s and ICE’s policies on those events, but Plaintiffs are either unrepresented or have not explained why telephonic communication is insufficient, and none of them have imminent immigration-court hearings that cannot be conducted by remote means. Plaintiffs’ speculative allegations of harm do not raise any concrete injury sufficient to
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establish standing or obtain injunctive relief. Only two Plaintiffs have submitted declarations in support of the TRO motion, and neither identifies any impending or concrete injury. See Pls.’ Ex. 5, Rodriguez Cedeno Decl. (ECF No. 7-6); Pls.’ Ex. 21, Napoles Vaillant Decl. (ECF No. 7-22). Neither of them is represented by counsel or has an imminent hearing in immigration court— Napoles Vaillant’s hearing is not until June 22, and is set to be done “by video,” Vaillant Decl. ¶ 6; Rodriguez Cedeno alleges he had a hearing set for April 2, Cedeno Decl. ¶ 6, but it has been continued until August 5, 2020, Ex. 14, Decl. of Elizabeth Burgus ¶ 3.1 As to the three remaining Individual Plaintiffs: Aliaga-Cobas does not have counsel and does not have a hearing until June, Compl. ¶ 16; Guerrero-Cornejo has counsel but has not given any reason why telephone access at the La Palma facility is insufficient, id. ¶ 17, and Velasquez Quiala has counsel but does not allege that telephone access at the Pine Prairie facility is somehow inadequate, id. ¶ 18. See also Ciliberti Decl. ¶ 28.a. (“[D]etainees [at La Palma] can schedule a free call with a legal representative from the telephone in [the] visitation [area]. ... There is no limitation placed on the length of the call.”); Benoit Decl. ¶¶ 27–32 (attorneys visits at Pine Prairie can occur in person, by telephone, or Skype).
Claims based on potential exposure to diseases are generally limited to cases where the disease has been shown to exist in a particular facility and is “sure or very likely” to spread and cause injury, see Helling v. McKinney, 509 U.S. 25, 32 (1993), as opposed to Plaintiffs’ speculation about hypothetical future exposure to a virus that has not been shown to be spreading in the facilities at issue, see Dawson v. Asher, No. 20-cv-0409, 2020 WL 1304557, at *2 (W.D. Wash. Mar. 19, 2020) (denying TRO because “there is no evidence that anyone at [the ICE facility] has COVID-19, and Plaintiffs do not address the measures Defendants are taking to prevent such
1 Plaintiffs also submitted a declaration from one other alien, but he is not a Plaintiff and his allegations about an April 2 hearing are out-of-date, see Pls.’ Ex. 18, Estrada Fernandez Decl. ¶ 7 (ECF No. 7-19), as that hearing was postponed, Ex. 15, Decl. of Elizabeth Burgus ¶ 3.
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a spread from occurring”). Given the extensive measures Defendants have taken in response to the outbreak to limit exposure and expand options for attorney-client communications and immigration-court hearings and filings by remote means, Plaintiffs cannot show a standingconferring injury here. Ciliberti Decl. ¶ 28.a; Benoit Decl. ¶¶ 27–32; McHenry Decl. ¶¶ 44–72. Moreover, even if Plaintiffs could otherwise satisfy Article III, their claims are not ripe because there is no actual, imminent controversy or any indication that Defendants’ actions will be insufficient to stem the spread of COVID-19 while still allowing for sufficient access to counsel and the courts. See Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 732–34 (1998) (holding challenge to agency plan not ripe for review “until a site-specific action occurs” that makes the harm “more imminent and more certain”).
B. The Organizational Plaintiffs Lack Article III Standing and Are Outside of the INA’s Zone of Interests.
The Organizational Plaintiffs appear to assert (as best as Defendants can discern) two standing theories tied to their APA claim: associational standing and third-party standing. See, e.g., Compl. ¶ 5, Mot. 7, 12, 33 n.62. Plaintiffs thus “forfeit [any] claim that [the Court] possess jurisdiction” on other grounds. Scenic America, Inc. v. DOT, 836 F.3d 42, 53 (D.C. Cir. 2016). To establish associational standing, the Organizational Plaintiffs must show through competent evidence that: “(1) at least one of their members has standing to sue in her or his own right, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the relief requested requires the participation of an individual member in the lawsuit.” American Library Ass’n v. FCC, 401 F.3d 489, 492 (D.C. Cir. 2005).
Plaintiffs fail this test because they have not identified a single member of their organizations who themselves has Article III standing. As with the Individual Plaintiffs, this turns on whether the members can demonstrate injury, causation, and redressability. See Ark Initiative
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v. Tidwell, 749 F.3d 1071, 1075 (D.C. Cir. 2014). Plaintiffs’ APA claim does not identify a “legally protected interest” that has been impinged upon. Rather, Plaintiffs contend that EOIR’s and ICE’s policies have violated some vague combination of “statutory, regulatory, and constitutional rights.” Compl. ¶ 70. In support, the Organizational Plaintiffs submit several declarations from member attorneys who generally allege that in-person hearings may be detrimental to their health, while remote hearings and consultation are insufficient to allow them to adequately represent their clients. Mot. 1–2. But the member attorneys do not establish any “concrete and particularized” injury stemming from Defendants’ responses to the pandemic. For example, one attorney says that she attended an immigration hearing in New York on March 11, and she tested positive for COVID-19 on April 2, speculating that she “might have been exposed” while at the immigration court. Pls.’ Ex. 1, Arce Decl. at 1. It is unclear why she places full blame on the immigration court for her positive diagnosis: She does not say it is the only place she visited outside her home during those three weeks, and she admits that she “felt compelled”—not that she was compelled—to appear at the court in person. Id. (emphasis added); see also Pls.’ Ex. 3, Church Decl. ¶ 9 (attorney chose to attend hearings in person, rather than utilize telephonic option, on March 30). Another immigration attorney protests the challenges of communicating telephonically with a detained client. Pls.’ Ex. 2, Erlich Decl. ¶ 1 (“Even several one-hour telephone meetings are far inferior to the face-to-face meetings, not limited in time, that were available in the EDC before the pandemic.”). But attorneys do not have some general right to represent clients in a particular way, especially during a public health crisis. That the attorneys may have to expend some effort to communicate with detained clients within the bounds of Defendants’ responses to the public health crisis is insufficient to establish Article III standing.
Plaintiffs also do not establish that the relief they seek is likely to redress these alleged
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injuries. They ask for EOIR and ICE to implement “uniform policies” in response to the COVID19 pandemic. Mot. 28. But whatever uniform policies might be adopted, Plaintiffs have not shown that they would better prevent the member attorneys from contracting the virus or that they would allow member attorneys unfettered access to their clients at any time and manner of their choosing. Plaintiffs’ speculative assertions about Defendants’ responses are insufficient to establish Article III standing. See Abulhawa v. U.S. Dep’t of Treasury, 239 F. Supp. 3d 24, 36 (D.D.C. 2017).
Plaintiffs also fail to demonstrate third-party standing. To the extent that the Organizational Plaintiffs rely on alleged harms to detained aliens to justify their own standing, “a party must assert his own legal rights and cannot rest his claim to relief on the legal rights of third parties.” Sessions v. Morales-Santana, 137 S. Ct. 1678, 1689 (2017). The Organizational Plaintiffs cannot assert third-party standing based on any purported right that detained aliens have to access counsel or to challenge the impact of EOIR or ICE policies on aliens. See Am. Immigration Lawyers Ass’n v. Reno (AILA), 199 F.3d 1352, 1364 (D.C. Cir. 2000) (rejecting third-party standing “to raise claims, whether statutory or constitutional, on behalf of aliens,” noting “the judicial presumption against suits seeking relief for a large and diffuse group of individuals, none of whom are party to the lawsuit”). That is especially so where Plaintiffs purport to speak on behalf of tens of thousands of aliens, none of whom they identify by name. See Kowalski v. Tesmer, 543 U.S. 125, 134 (2004). In particular, an attorney’s putative “future attorney-client relationship with as yet unascertained” clients is not a permissible basis for standing. Id. at 130; see Cuban Am. Bar Ass’n, Inc. v. Christopher, 43 F.3d 1412, 1422–23 (11th Cir. 1995) (legal organization lacked standing to assert alleged injury to aliens it did not represent); Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 809– 10 (D.C. Cir. 1987) (similar). The Organizational Plaintiffs reference clients of their member attorneys, Mot. 7, 13, yet never identify any actual client of the Plaintiffs, let alone one who is
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subject to and allegedly harmed by the challenged EOIR and ICE actions. Organizations cannot demonstrate third-party standing based on alleged injury to “the rights of some hypothetical claimant.” Kowalski, 543 U.S. at 134 n.5. If Plaintiffs have an attorney-client relationship with any actual alien affected by the challenged policies, they can represent the alien in a first-party challenge to the policies. Indeed, five detained aliens are Plaintiffs in this lawsuit, so an individual alien plainly can “protect his or her own interests.” AILA, 199 F.3d at 1358, 1362; see Kowalski, 543 U.S. at 129 (party invoking third-party standing must show that “the party asserting the right ha[d] a ‘close’ relationship with the person who possesses the right,” and “there [was] a ‘hindrance’ to the possessor’s ability to protect his own interests”).2
Even if they had constitutional standing, the Organizational Plaintiffs cannot obtain review under the APA of EOIR’s and ICE’s actions because their interests are not within the zone of interests protected by the INA. The APA does not “allow suit by every person suffering injury in fact.” Clarke v. Secs. Indus. Ass’n, 479 U.S. 388, 395 (1987). It provides a cause of action only to one “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. To be “aggrieved,” “the interest sought to be protected” must “be arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Clarke, 479 U.S. at 396 (modifications omitted).
Nothing in the INA suggests that it is meant to protect the interests of immigration attorneys. Although the Organizational Plaintiffs suggest that they are seeking to challenge “limitations on access to counsel” through their APA claim, Mot. 33 n.62, they point to no
2 The sole case Plaintiffs rely on for third-party standing, Innovation Law Lab v. Nielsen, 310 F. Supp. 3d 1150 (D. Or. 2018), Mot. 33 n.62, is contrary to this Circuit’s controlling AILA and Gracie precedents, as well as the Supreme Court’s Kowalski decision.
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particular regulation or statute that arguably protects or regulates their interests in this regard.3 And Plaintiffs themselves recognize that the INA provisions regarding the ability of an alien to retain counsel relates to the alien’s interests, not the interests of the immigration bar. Compl. ¶¶ 73–77 (asserting statutory claims regarding access to counsel only on behalf of the Individual Plaintiffs); see, e.g., Fed’n for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897, 900–04 (D.C. Cir. 1996) (immigration advocacy organizations are outside immigration statutes’ zone of interests).
Congress similarly made clear that no party other than the United States could litigate challenges to removal proceedings in the district courts by withdrawing jurisdiction for such causes of action that had previously existed. Until Congress amended the INA to include the claimchanneling provisions of § 1252, a separate provision, 8 U.S.C. § 1329, provided jurisdiction for suits in federal district courts filed by any alien or organization challenging implementation of the immigration laws. See, e.g., Bains v. Schiltgen, No. 97-cv-2573, 1998 WL 204977, at *3 (N.D. Cal. Apr. 21, 1998) (describing statute’s prior version). But Congress amended § 1329 in 1996, “making clear that district court jurisdiction founded on the immigration statute is confined to actions brought by the government.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1162 (D.C. Cir. 1999). This provision makes clear that organizations have no cause of action under the INA to raise challenges related to removal proceedings.
C. The INA Prohibits District-Court Review of Plaintiffs’ Claims Arising From Removal Proceedings.
Plaintiffs argue that “ICE’s failure to act to increase detained persons’ access to robust remote communication and EOIR’s failure to suspend in-person hearings and grant continuances
3 For this reason, the analysis in Federal Defenders of New York, Inc. v. Federal Bureau of Prisons, No. 19-1778, 2020 WL 1320886 (2d Cir. 2020), that Plaintiffs invoke, see Mot. 33 n.62, is not applicable here. In that case, the Second Circuit held that the attorneys’ APA claim fell within the zone of interests of the BOP’s regulations on inmate-attorney visits. Id. at *9. There is no similar regulation or statute that could possibly apply to the Organizational Plaintiffs here.
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as a matter of course together deprive detained persons of their right to access to counsel” in removal proceedings and to procedural due process. Mot. 37; see also id. at 34–37. But the INA divests district courts of jurisdiction to review those claims because they “aris[e] from” removal proceedings. 8 U.S.C. § 1252(b)(9). Therefore, those claims cannot form the basis for a TRO. See Munaf v. Geren, 553 U.S. 674, 690 (2008).
The INA states that “a petition for review filed with an appropriate court of appeals in accordance with [8 U.S.C. § 1252] shall be the sole and exclusive means for judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5). The same section permits “[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States ... only in judicial review of a final order.” Id. § 1252(b)(9) (emphasis added). Through § 1252, “Congress has clearly provided that all claims—whether statutory or constitutional—that ‘aris[e] from’ immigration removal proceedings can only be brought through the petition for review process in federal courts of appeals.” J.E.F.M., 837 F.3d at 1029. Section 1252(b)(9)’s channeling provisions are “breathtaking” in scope and “vise-like” in grip, swallowing up “virtually all claims that are tied to removal proceedings.” Id. at 1031 (quoting Aguilar v. ICE, 510 F.3d 1, 9 (1st Cir. 2007)). “Taken together, § 1252(a)(5) and § 1252(b)(9) mean that any issue—whether legal or factual—arising from any removal-related activity can be reviewed only through the PFR process.” Id.; see also Jennings v. Rodriguez, 138 S. Ct. 830, 840 (2018) (§ 1252(b)(9) is a “jurisdiction bar” to challenges to “any part of the process by which [an alien’s] removability will be determined”); id. at 841 n.3 (“the question is not whether [the challenged action] is an action taken to remove an alien but whether the legal questions in this case arise from such an action” (emphases in original)). These channeling provisions include “right-to-counsel claims” and
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“challenges to agency policies,” J.E.F.M., 837 F.3d at 1035, and any challenge arising from any aspect of the processes or practices that apply to aliens in immigration court, see Vetcher, 316 F. Supp. 3d at 76; Sophia v. Decker, No. 19-cv-9599, 2020 WL 764279, at *2 (S.D.N.Y. Feb. 14, 2020); Asylum Seeker Advocacy Project (ASAP) v. Barr, 409 F. Supp. 3d 221, 225–26 (S.D.N.Y. 2019).
Section 1252(b)(9) channels the Individual Plaintiffs’ claims against EOIR into the courts of appeals. All Plaintiffs challenge how EOIR is conducting immigration proceedings and their ability to retain or consult with counsel. See, e.g., Mot. 8–20, 30–37. Those claims are covered by § 1252(b)(9) and so are outside this Court’s jurisdiction. See J.E.F.M., 837 F.3d at 1029, 1033, 1035 (constitutional and statutory “policies-and-practices challenges” and “right-to-counsel claims must be raised through the PFR process because they “arise from” removal proceedings”); Vetcher, 316 F. Supp. 3d at 76 (similar). That includes Plaintiffs’ claims that EOIR’s implementation of its video-teleconference or telephonic-hearing policies violates their statutory or due-process rights. P.L. v. ICE, No. 19-cv-1336, 2019 WL 2568648, at *3 (S.D.N.Y. June 21, 2019) (“Plaintiffs’ challenge to Defendants’ VTC policy arises from ‘proceeding[s] brought to remove [undocumented immigrants] from the United States.’”).
Section 1252(b)(9) also channels all Plaintiffs’ claims against ICE into the courts of appeals. Plaintiffs argue that ICE’s disease-prevention and attorney-access protocols violate their statutory right to counsel and their procedural-due-process rights. See Mot. 12–16, 34–37. But the right to counsel exists only “[i]n any removal proceedings,” 8 U.S.C. § 1362, so any challenge based on the deprivation of that right (and its attendant procedural-due-process challenge), “however it is framed,” is reviewable only as part of the review of a final removal order. Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012); see J.E.F.M., 837 F.3d at 1035 (§ 1252(b)(9)
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bars constitutional and statutory “right-to-counsel claims”); Aguilar, 510 F.3d at 18 (right-tocounsel and procedural-due-process claims, like claims involving “difficulties in calling witnesses and in presenting evidence at the removal proceedings,” are subject to § 1252(b)(9)); Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048 (N.D. Cal. 2018) (“Petitioners’ challenge based on the potential loss of counsel ‘arises from’ their removal proceedings and can only be raised through the PFR process, as required by § 1252(a)(5) and § 1252(b)(9).”). In their reply, Plaintiffs may cite to Arroyo v. DHS, No. 19-cv-815, 2019 WL 2912848, at *12 (C.D. Cal. June 20, 2019), and argue that § 1252(b)(9) does not apply to claims regarding an existing attorney-client relationship. They would be wrong. Section 1252(b)(9) applies to existing and prospective attorney-client relationships. See Avilez v. Barr, No. 2020 WL 570987, at *3 (N.D. Cal. Feb. 5, 2020) (following Alvarez instead of Arroyo because Arroyo is inconsistent with circuit precedent and “is not persuasive”).
Section 1252(b)(9) also divests this Court of jurisdiction over the Organizational Plaintiffs’ claims. “[W]hen a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded.” Block v. Community Nutrition Institute, 467 U.S. 340, 349 (1984). Congress’s decision to consolidate review of claims “arising from” removal proceedings, 8 U.S.C. § 1252(b)(9), into review of the final removal order itself bars organizations from challenging practices in removal proceedings or right-to-counsel claims in those proceedings on an individual alien’s behalf. See, e.g., ASAP, 409 F. Supp. 3d at 227 (dismissing “action for declaratory and injunctive relief brought by organizational plaintiffs”); P.L., 2019 WL 2568648, at *1 (dismissing claims brought by “Organizational Plaintiffs” who “represent” “detained immigrants in removal proceedings”).
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And, another provision of the INA independently prevents Plaintiffs from establishing jurisdiction over their right-to-counsel claims against EOIR: 8 U.S.C. § 1252(g) provides that, apart from a petition for review to the appropriate court of appeals, “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien,” “notwithstanding any other provision of law (statutory or nonstatutory).” This jurisdictional bar on claims that relate to the manner in which EOIR “adjudicate[s] cases” covers claims related to the “prosecution” of any “of the various stages in the deportation process” and is aimed at preventing the type of piecemeal litigation that Plaintiffs have initiated here, challenging certain aspects of immigration-court procedures outside the context of the specific cases where their claims allegedly arise. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483, 487 (1999) (Congress enacted § 1252(g) to prevent “deconstruction, fragmentation, and hence prolongation of removal proceedings”). Thus, §§ 1252(a)(5), (b)(9), and (g) divest this Court of jurisdiction over Plaintiffs’ right-to-counsel claims.
Rather than explain why their claims are exempt from section 1252’s reach, Plaintiffs assert—in a footnote—that “[t]his Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331,” and that “[t]hat jurisdiction is not limited by 8 U.S.C. §§ 1252(a)(5) or (b)(9) because this action is not arising from removal proceedings.” Mot. 33 n.62. This Court “need not consider cursory arguments made only in a footnote.” Hutchins v. District of Columbia, 188 F.3d 531, 539 n.3 (D.C Cir. 1999). But even if credited, Plaintiffs’ assertion is wrong: Plaintiffs’ claims “are not independent or ancillary to the removal proceedings. J.E.F.M., 837 F.3d at 1033. Plaintiffs allege that EOIR’s and ICE’s actions (or non-actions) violate the APA, their statutory right to counsel in removal proceedings, and their right to procedural due process (as well as the other claims not
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relied on in this Motion). See, e.g., Compl. ¶ 14 (Napoles Vaillant “is afraid that being forced to appear at his hearing unrepresented will result in a worse outcome for his case.”); id. ¶ 15 (Rodriguez Cedeno “is concerned about his ability to represent himself in complicated immigration proceedings during this time.”); id. ¶ 16 (Aliaga-Cobas fears “proceeding without an attorney in her case.”); id. ¶ 17 (Guerrero-Cornejo is allegedly “unable to see his attorney in person because of the policies Defendants have put in place restricting access to the facilities, and his phone access is not sufficient to fully prepare him for the hearing.”); id. ¶ 18 (Velasquez Quiala “is currently unable to see his attorney in order to prepare for the hearing, and he is limited to 30 minutes a day for attorney calls.”) (all emphases added). These claims “are bound up in and an inextricable part of the administrative process” and can be raised only in a petition for review. J.E.F.M., 837 F.3d at 1033; Vetcher, 316 F. Supp. 3d at 77.
Plaintiffs cite to O.A. v. Trump, 404 F. Supp. 3d 109 (D.D.C. 2019), and Martinez v. Nielsen, 341 F. Supp. 3d 400 (D.N.J. 2018), to argue that §§ 1252(a)(5) and (b)(9) do not apply to their claims, see Mot. 33 n.62, but neither case helps them. In both cases, the district courts held that §§ 1252(a)(5) and (b)(9) did not apply because the challenges “‘ar[ose] from’ a rulemaking of general applicability,” O.A., 404 F. Supp. 3d at 132, 133, and from the government’s arrest of an alien following an interview for a waiver of inadmissibility, Martinez, 341 F. Supp. 3d at 408, rather than “from any action taken or proceeding brought to remove an alien from the United States,” 8 U.S.C. § 1252(b)(9). Those cases were wrongly decided, but in any event do not help Plaintiffs here because their challenges are to the (speculative) effect of EOIR’s and ICE’s actions on their removal proceedings. See Compl. ¶¶ 14–18. As explained, review of these claims is available only in the courts of appeals.
Finally, these provisions expressly supersede the All Writs Act, 28 U.S.C. § 1651(a), as a
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basis for a TRO. See 8 U.S.C. § 1252(b)(9) (“no court shall have jurisdiction ... by section ... 1651 of [title 28, the All Writs Act], or by any other provision of law”); id. § 1252(g) (same).
D. The INA Bars This Court From Enjoining or Restraining Operation of Immigration-Court Proceedings or the INA Detention and Removal Provisions.
Plaintiffs’ requested relief also runs afoul of 8 U.S.C. § 1252(f)(1), which bars district courts from awarding injunctive relief enjoining or restraining operation of 8 U.S.C. §§ 1221– 1232, including the provisions governing operation of removal proceedings, see 8 U.S.C. §§ 1229, 1229a, and detention and removal of aliens, id. §§ 1225, 1226, 1231. Title 8 U.S.C. § 1252(f)(1) provides that “[r]egardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [8 U.S.C. §§ 1221–1232, which include provisions governing the conduct of removal proceedings], other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” (Emphasis added.)
The relief sought by the Organizational Plaintiffs falls squarely within the scope of injunctive relief that § 1252(f)(1) prohibits. Plaintiffs seek to enjoin the operation of the immigration courts nationwide (except for remote bond hearings), which means enjoining provisions of 8 U.S.C. § 1229a (governing how “[a]n immigration judge shall conduct proceedings”), 8 U.S.C. § 1229 (establishing processes within the immigration court), § 1225(b)(1)(B)(iii)(III) (requiring immigration judges to undertake “prompt review” of negative credible fear determinations “to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the determination.”), 8 U.S.C. § 1226 (providing for bond hearings for certain detained aliens), and 8 U.S.C. §§ 1231(a) and (g) (providing for detention following entry of a final removal order).
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Plaintiffs’ requested TRO would, inter alia, require all immigration courts nationwide to “suspend all in-person non-bond hearing and immediately convert all in-person bond hearings to remote hearings” and require immigration judges to grant continuances. See Mot. 2. These requirements appear nowhere in sections 1225, 1226, 1229, 1229a, or 1231, and indeed these requirements would halt the operation of those provisions as written and read into them additional requirements. Plaintiffs’ requested relief thus seeks to rewrite these provisions via a TRO to include significant limitations on the government’s authority “that [do] not exist in the statute,” during a public health emergency, which is what § 1252(f) forecloses. Hamama v. Adducci, 912 F.3d 869, 879–80 (6th Cir. 2018); see Vazquez Perez v. Decker, No. 18-cv-10683, 2019 WL 4784950, at *6 (S.D.N.Y. Sept. 30, 2019) (similar).
Section 1252(f)(1) also forecloses Plaintiff’s suggestion (at Mot. 29 & n.57) that the All Writs Act, 28 U.S.C. § 1651(a), supplies jurisdiction to grant a TRO. Congress made clear that § 1252(f)(1)’s bar to injunctive relief is expansive and applies “[r]egardless of the nature of the action or claim.” 8 U.S.C. § 1252(f)(1) (emphasis added). Section 1252(f)(1)’s specific jurisdictional bar thus trumps the All Writs Act’s more general jurisdictional grant. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012) (in issues of statutory construction, “the specific governs the general”). Moreover, because Plaintiffs seek a TRO to prevent future injury (rather than to preserve this Court’s jurisdiction over the Complaint), the All Writs Act does not absolve Plaintiffs of their need to satisfy the traditional preliminary-injunction factors, see Belbacha, 520 F.3d at 457; Kiyemba, 561 F.3d at 513 n.3, including showing a likelihood of success on their underlying claims. They cannot make that showing where § 1252(f)(1) bars the relief they seek.
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E. The INA Prohibits This Court From Compelling EOIR to Conduct Remote Immigration Proceedings Nationwide.
Plaintiffs seek an order requiring EOIR to “immediately convert all in-person bond hearings to remote hearings” and “[p]romulgate policies and procedures that, at a minimum, permit remote court appearances by all necessary participants (e.g., court and court personnel, detained persons, counsel, interpreters, transcription).” Mot. 2. But the INA prohibits this Court from granting that relief too. As relevant here, 8 U.S.C. § 1252(a)(2)(B)(ii) states: “no court shall have jurisdiction to review ... any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.” This Court cannot order EOIR to conduct remote immigration hearings because the use of remote technology is specified to be in the government’s discretion. See 8 U.S.C. § 1229a(b)(2)(A) (“The proceeding may take place (i) in person, (ii) where agreed to by the parties, in the absence of the alien, (iii) through video conference, or (iv) subject to subparagraph (B), through telephone conference.” (emphasis added)). This grant of authority does not provide any statutory standard to apply—it calls for the exercise of “expertise and judgment unfettered by any statutory standard whatsoever.” Zhu v. Gonzales, 411 F.3d 292, 295 (D.C. Cir. 2005).
Plaintiffs may argue in their reply that the authority granted under § 1229a(b)(2)(A) is not “specified ... to be in the discretion” of the government. Kucana v. Holder, 558 U.S. 233, 239 (2010). They would be wrong. The fact that a specific provision does not use the word “discretion” does not mean § 1252(a)(2)(B)(ii) does not apply. See Zhu, 411 F.3d at 295 (“a decision may be ‘specified ... to be in the discretion of the Attorney General’ even if the grant of authority to make that decision does not use the word ‘discretion’”). Section 1252(a)(2)(B)(ii) applies because the decision whether to use remote technology is, by statute, “entirely within [the] judgment or
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conscience” of the government. Spencer Enters., Inc. v. United States, 345 F.3d 683, 690 (2003). This Court has no jurisdiction to grant a TRO.
II. Plaintiffs Are Not Entitled to a TRO. Even if this Court possesses jurisdiction to grant Plaintiffs’ TRO Motion, Plaintiffs fail to
make a “clear showing” of their entitlement to relief for each of the preliminary-injunction factors. Winter, 555 U.S. at 20, 23.
A. Plaintiffs Are Not Likely to Succeed on the Merits of Their Claims. 1. EOIR’s and ICE’s Actions Are Not Subject to Review Under the APA and In Any Event Are Not Arbitrary and Capricious.
Plaintiffs assert that “Defendants have violated the APA by refusing to direct immigration courts to conduct proceedings in a manner consistent with the public health and protection of detained persons’ rights to counsel.” Mot. 30; see also id. at 30–34; Compl. ¶ 70. Plaintiffs are incorrect both on their factual assertions and on the law.
Plaintiffs cannot raise an APA claim because they do not identify any “final agency action,” subject to APA review. See 5 U.S.C. § 704; Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 890–93 (1990). Plaintiffs argue that the “APA entitles ‘[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action’ to ‘judicial review thereof.’” Mot. 33 (citing 5 U.S.C. § 702). But the APA permits review only of final agency actions. 5 U.S.C. § 704. Generally, “two conditions must be satisfied for agency action to be ‘final’: First, the action must mark the ‘consummation’ of the agency’s decisionmaking process,” and “second, the action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citations omitted).
Here, Plaintiffs do not identify any specific final agency action from which they allege “legal consequences” flow. Plaintiffs’ APA claim seeks additional “guidance for immigration
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court proceedings” and “attorney-client visits in detention facilities” to “preserve[ ] Plaintiffs’ statutory, regulatory, and constitutional rights” in removal proceedings in immigration court. Compl. ¶ 70. But the only decision in removal proceedings with actual “force and effect of law,” Bennett, 520 U.S. at 177–78, would be a decision by an immigration judge in an individual case and not any decision to adopt or not adopt particular practices for counsel access. See, e.g., DRG Funding Corp. v. HUD, 76 F.3d 1212, 1214 (D.C. Cir. 1996) (“courts have defined a nonfinal agency order as one, for instance, that does not itself adversely affect complainant but only affects his rights adversely on the contingency of future administrative action” (internal quotations omitted)). There is no way to tell whether, for example, having an attorney visit with a client or attend a hearing telephonically to prevent the spread of COVID-19 will have any effect on the outcome of the proceedings or any legal consequences before the immigration judge even renders a decision. And Plaintiffs’ challenges related to access to counsel, scheduling of hearings, and practices for filings in immigration court, are all at bottom premised on speculative potential effects on these immigration-judge decisions.
Plaintiffs also cannot state an APA claim because, as explained above, Congress has set out a separate specific and exclusive mechanism for review of decisions of immigration judges, 8 U.S.C. § 1252(a)(5), and the APA provides a cause of action only for claims challenging “final agency action for which there is no other adequate remedy in a court,” 5 U.S.C. § 704 (emphasis added). To “determin[e] whether an adequate remedy exists,” courts “focus[] on whether a statute provides an independent cause of action or an alternative review procedure.” El Rio Santa Cruz Neighborhood Health Ctr. v. HHS, 396 F.3d 1265, 1270 (D.C. Cir. 2005). Here, APA review would impermissibly provide review that is duplicative of the specific alternative review procedure available in the courts of appeals under 8 U.S.C. § 1252(b)(9) over any challenge to how removal
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proceedings are conducted. And “if an adequate remedy at law exists, equitable relief is not available under the APA.” Cohen v. United States, 650 F.3d 717, 731 (D.C. Cir. 2011).
Plaintiffs’ alternative argument, made in a footnote, is that, if Defendants’ “decisions are instead construed as a failure to act rather than agency action, their failures to act are also reviewable under 5 U.S.C. § 706(1).” Mot. 34 n.63. But this argument fares no better. To raise a claim under § 706(1), “[a]n agency must have failed to perform a non-discretionary duty to act.” Norton, 542 U.S. at 64. “Thus, a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take,” id., and Plaintiffs cite no provision requiring the government to take any particular action or that otherwise cabins the agencies’ discretionary choices on how to best respond to a pandemic. And even if Plaintiffs could identify a basis to argue that the government is required to take some additional action, they still could not obtain an order directing agency operations in the particular ways they ask for; under § 706(1) a court can at most compel an agency “to take action upon a matter, without directing how it shall act.” Cobell v. Norton, 392 F.3d 461, 475 (D.C. Cir. 2004).
“The principal purpose of the APA limitations” in sections 702, 704, and 706(1) “is to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve.” Norton, 542 U.S. at 66. “If courts were empowered to enter general orders compelling” agencies to carry out their general mandates in particular ways not required by any specific statutory provision, as Plaintiffs ask the Court to do here, “it would ultimately become the task of the supervising court, rather than the agency” to oversee “day-to-day agency management,” raising the prospect of pervasive oversight by federal courts” that “is not contemplated by the APA.” Id. at 66–67. A “policy disagreement” with an agency’s decision or approach to a problem is not a
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“basis for substituting [Plaintiffs’] views for the agency’s” even where “the record could have supported” Plaintiffs’ preferred approach. Pub. Citizen v. Nat’l Highway Traffic Safety Admin., 374 F.3d 1251, 1263 (D.C. Cir. 2004).
EOIR has reasonably exercised its discretion and authority here. EOIR has taken steps to delay certain categories of hearings that can reasonably be postponed, including continuing all hearings for aliens who are not detained through May 1, 2020, has restricted access to immigration courts for individuals at risk of having COVID-19, and continues to evaluate whether additional steps are necessary to respond to the outbreak as facts develop. McHenry Decl. ¶¶ 44–58. EOIR has issued guidance to all immigration courts encouraging them to take certain steps to respond to the outbreak, and EOIR’s decision to allow immigration courts some flexibility to respond to local concerns and immigration judges to make decisions about how to best manage individual proceedings for detained aliens, is not arbitrary and capricious. Those decisions are entitled to significant deference. See Vermont Yankee Nuclear Power Corp., 435 U.S. at 543; Ngure v. Ashcroft, 367 F.3d 975, 983 (8th Cir. 2004); Cutler v. Hayes, 818 F.2d 879, 896 (D.C. Cir. 1987). This is especially so in the immigration context where “flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950).
Plaintiffs also contend that “EOIR has not suspended non-essential in-person hearings” and “has refused to issue any uniform policy designed to minimize the COVID-19 health risks” or to follow CDC guidance “calling for ‘alternatives to in-person court appearances.’” Mot. 31. That too is wrong. On March 18, the Director of EOIR issued a Policy Memorandum adopting guidance for “all immigration court cases effective immediately” to “promote the safety of immigration court personnel, representatives, aliens, attorneys for [DHS], and the general public during the
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ongoing national emergency related to the COVID-19 outbreak.” EOIR Mem. 1; McHenry Decl. ¶¶ 47–55. In doing so, EOIR reminded immigration judges of their broad authority to take certain steps that could help minimize the risk of exposure to COVID-19, such as waiving appearances, granting continuances, limiting physical presence in the courtroom, issuing standing orders providing for additional procedures in response to the outbreak, and conducting hearings telephonically or by video-teleconference. EOIR Mem. 2. EOIR has also encouraged immigration judges to resolve cases through written filings where possible and to establish policies for conducting hearings through VTC or by telephone to the maximum extent practicable consistent with the law, has waived the requirement for original signatures for certain filings, and has made electronic filing by email available for all 69 immigration courts. Id.
EOIR has taken reasonable steps to mitigate exposure and permit flexibility while still following the statutory and court-ordered strictures by which it is bound. Among other things, EOIR’s response allows for remote options for filings and hearings; ensures that aliens continue to timely receive what they are entitled to by statute and federal court orders; accords deference to immigration judges to manage their own dockets and respond to unique factors or considerations in individual cases; and allows detained aliens to continue to receive bond hearings to respond to the surge in requests for bond hearings in light of the COVID-19 outbreak, including requests made as part of litigation pending in other district courts. See, e.g., McHenry Decl. ¶¶ 44, 67, 70, 92–93; see also Las Americas, 2020 WL 1671584, at *2 (noting “evidence” “demonstrating that [immigration courts] have taken significant steps to reduce in-person contacts and appropriately modify immigration court functions in the wake of the COVID-19 outbreak,” including postponing hearings, granting continuances, allowing email filings, and permitting appearances “by video or telephonically” in the hearings that have not been postponed because they involve “detained
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individuals, who may favor earlier hearings due to their custody status”). EOIR’s approach, including the deference given to individual immigration courts to
exercise their expertise and discretion over certain local decisions, is no different than how the Administrative Office of the United States Courts has dealt with similar issues by encouraging jurisdiction-by-jurisdiction and case-by-case approaches for the judiciary. See Administrative Office of the U.S. Courts, Judiciary Preparedness for Coronavirus (COVID-19), https://www.us courts.gov/news/2020/03/12/judiciary-preparedness-coronavirus-covid-19. This similar approach by other courts shows EOIR’s approach is reasonable. Cf. Liadov v. Mukasey, 518 F.3d 1003, 1009 (8th Cir. 2008) (noting that the same rationale for strict filing deadlines in Article III courts applies in immigration courts). To the extent that Plaintiffs believe that additional COVID-19-related changes are needed to procedures in particular courts or cases, they can raise those requests with individual immigration judges. Defendants are not aware of any reasonable requests for continuances, extensions, or waivers of appearances being systematically denied. McHenry Decl. ¶ 88. This is a critical flaw with Plaintiffs’ demand for a sweeping TRO: the needs of an individual alien in the proceedings and any request related to COVID-19 must be judged based on that alien’s circumstances, and Plaintiffs cannot plausibly argue that every alien will be harmed by the absence of the policies they demand. See United States v. Salerno, 481 U.S. 739, 745 (1987). Plaintiffs thus cannot carry their burden for a TRO, see Mendez v. Cooper, No. 19-cv-01701, 2019 WL 2577477, at *1 (D. Ariz. Apr. 17, 2019), and their systemic claims cannot succeed. See Las Americas, 2020 WL 1671584, at *1–2 (noting that similar TRO motion attacked practices “outside of the District,” did not claim challenged practices were “occurring in every immigration court,” and finding no reason why “review of individual court practices” would not “suffice to address practices in those particular courts”). Thus, on the merits, Plaintiffs’ requests should be denied.
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The same is true for Plaintiffs’ APA claim against ICE. Plaintiffs argue that “the CDC issued guidance on practices to implement in correctional and detention facilities” that calls for “decreasing ‘operational entrances and exits to the facility’ (e.g., for attorney visits and to attend hearings),” and claim that “ICE has refused to implement policies that are consistent with federal health mandates to facilitate limitations on unnecessary transfer of detained persons or on operational entrances and exits to detention facilities.” Mot. 30–31. But this is not true. ICE facilities have adopted policies to restrict unnecessary access to facilities, test individuals for signs of fever before permitting entry, and test detainees for COVID-19 before admitting them to a facility. See ICE Pandemic Response 12–13; Ciliberti Decl. ¶¶ 8–23; Benoit Decl. ¶¶ 13–26; Beckhelm Decl. ¶¶ 10–23; Bretz Decl. ¶¶ 9–16; Simao Decl. ¶¶ 6–7; LaBier Decl. ¶¶ 9–21; Allen Decl. ¶¶ 7–16. They have also adopted precautions to prevent the spread of the virus by maintaining or expanding options for remote attorney conferencing, by requiring any visits that must take place in person use protective gear or occur through glass barriers, and instituting practices for cleaning and sanitizing any shared spaces or communications equipment See Ciliberti Decl. ¶¶ 19–24; Benoit Decl. ¶¶ 21–42; Beckhelm Decl. ¶¶ 17–26; Bretz Decl. ¶¶ 16–23; Simao Decl. ¶¶ 8–15; LaBier Decl. ¶¶ 21–26; Allen Decl. ¶¶ 16–22. Like with their challenges against EOIR, Plaintiffs fail to identify any uniform policy they disagree with that applies to all facilities, any reason why the agency is not entitled to deference in developing varied and targeted policies that leave room for individual facilities to adapt to local needs or challenges, or any reason why this Court—as opposed to the courts in the relevant districts—should oversee the operations of those facilities, some of which are already subject to ongoing litigation before courts in those districts. See, e.g. McHenry Decl. ¶ 67; Las Americas, 2020 WL 1671584.
Accordingly, Plaintiffs cannot meet their burden to show a likelihood of success on their
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APA claim, and this Court should deny their motion for a TRO. 2. EOIR’s and ICE’s Policies Do Not Violate Plaintiffs’ Constitutional or Statutory Rights to Counsel or Procedural Due Process.
Plaintiffs assert that “Defendants have violated [Plaintiffs’] constitutional and statutory rights to counsel and to due process,” Mot. 30, “by impairing (1) their ability to retain counsel, (2) their ability to communicate confidentially with their counsel, and (3) their counsel’s ability to competently represent them in immigration court,” Mot. 36; see also id. at 34–37. They claim that “ICE’s failure to act to increase detained persons’ access to robust communication and EOIR’s failure to suspend in-person hearings and grant continuances as a matter of course together deprive detained persons of their right of access to counsel.” Mot. 37. They are wrong. Plaintiffs fail to explain how EOIR’s decision not to suspend all in-person immigration hearings nationwide or ICE’s disease-prevention or attorney-access protocols “effectively deny” the Individual Plaintiffs’ access to counsel in violation of the INA or the Due Process Clause.
It is well-established that “there is in a civil case no constitutional right to counsel.” Koller By and Through Koller v. Richardson-Merrell, Inc., 737 F.2d 1038, 1052 (D.C. Cir. 1984), vacated on other grounds sub nom. Richardson-Merrell, Inc. v. Koller, 472 U.S. 424 (1985); INS v. LopezMendoza, 468 U.S. 1032, 1038 (1984) (“Consistent with the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing.”). Congress, however, has provided aliens a limited right to counsel in civil removal proceedings:
In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose. 8 U.S.C. § 1362. This statutory right that Congress has afforded aliens in removal proceedings exceeds the minimum due-process requirement that an alien receive “some form of meaningful or fair hearing.” Maldonado-Perez v. INS, 865 F.2d 328, 32 (D.C. Cir. 1989); Dia v. Ashcroft, 353
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F.3d 228, 243 (3d Cir. 2003) (en banc) (“[a]liens only have those statutory rights granted by Congress”). Plaintiffs’ procedural-due-process claim is thus subsumed by their statutory right-tocounsel claim: “[A]n immigration hearing that satisfies the statutory requirements of [the INA] also satisfies the requirements of the due process clause.” Skorusa v. Gonzales, 482 F.3d 939, 943 n.1 (7th Cir. 2007).
Courts have held that the statutory right to counsel in immigration proceedings is violated only where conditions are “tantamount to denial of counsel.” Biwot, 403 F.3d at 1098. Whether a denial occurred requires a backward-looking inquiry into “the actual substance of the hearing,” Lara-Torres, 383 F.3d at 973, to determine whether the proceedings were “so fundamentally unfair that [the alien] was prevented from reasonably presenting his case,” Gonzalez v. INS, 82 F.3d 903, 908 (9th Cir. 1996). And, a violation of the statute alone may not violate due process absent a showing of prejudice. See Castro-O’Ryan v. U.S. Dep’t of Immigration and Naturalization, 847 F.2d 1307, 1312–13 (9th Cir. 1987).
Here, Plaintiffs allege that Defendants’ COVID-19 response “impedes” the Individual Plaintiffs’ ability to retain or consult with counsel. Mot. 26. But they fall far short of showing that they were effectively denied access to counsel during immigration proceedings. Against ICE, for example, Plaintiffs allege that “videoconferencing is not always made available” to immigration detainees, Mot. 22, and that detainees “common[ly]” miss telephone calls, must pay for calls, have their scheduled call times canceled, wait in line to make calls, have their calls “monitored or overheard by others,” have time limits on calls, or experience poor connection quality. Mot. 22– 23. And against EOIR, Plaintiffs complain that the lack of a blanket order permitting telephonic appearances as a matter of course at all immigration courts and the denial of some motions for continuances or for telephonic appearances make it more difficult to obtain or consult with counsel.
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See Mot. 25–26. But these allegations are of a different kind and categorically less severe than the effective denial of counsel and forced self-representation that courts have recognized as a denial of the statutory right to counsel. See, e.g., Biwot, 403 F.3d at 1096 (finding a violation of the statutory right to counsel when an immigration judge allowed an alien, “who was incarcerated and diligently seeking representation, only five working days to obtain counsel”); Montes-Lopez v. Holder, 694 F.3d 1085, 1089–90 (9th Cir. 2012) (violation where, after learning at a hearing that an alien’s counsel had been suspended from the bar, immigration judge refused to grant the alien a continuance to secure new counsel and then denied the alien’s claims for relief). And it is impossible to know now whether Plaintiffs’ allegations will have any effect on their rights, let alone result in “substantial prejudice,” before their immigration hearings have been held. LaraTorres, 383 F.3d at 973 (quotation marks omitted). Such a determination can be made only by scrutinizing “the actual substance of the hearing” after the fact. See id.
Plaintiffs’ and their declarants’ actual allegations also fall far short of specifying why they believe Defendants are responsible for the issues of which they complain. For example, Plaintiff Napoles Vaillant states merely: “I am concerned that I do not have an attorney to represent me at this hearing. ... The Florence Immigrant & Refugee Rights Project was trying to obtain pro bono representation for me and my husband, Ernesto, but it had to suspend those efforts in light of COVID-19 and the government’s response to COVID-19.” Pls.’ Ex. 21, Napoles Vaillant Decl. ¶¶ 7–8 (ECF No. 7-22). He offers no explanation why he believes that “the government’s response to COVID-19” is the cause of his inability to find an attorney, nor does he say that the immigration judge has denied a request for a continuance. See id. Attorney Michelle Edstrom states that she filed a motion to continue a hearing scheduled for April 2, 2020, in the Dallas immigration court, but states only that she “remain[s] apprehensive that the motion will not be granted.” Pls.’ Ex. 28,
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Edstrom Decl. ¶¶ 7–8 (ECF No. 7-29). There is no evidence in Plaintiffs’ TRO Motion papers filed on April 8 that the request was in fact denied (despite the fact that such evidence would have been available by the time Plaintiffs filed this Motion and could have been submitted if it existed). Likewise, although Plaintiff Rodriguez Cedeno states that his motion for a continuance of his April 2 hearing was denied, see Pls.’ Ex. 5, Rodriguez Cedeno Decl. ¶ 6, Plaintiffs fail to mention that Rodriguez Cedeno’s hearing was later continued until August 5 and so did not occur on April 2, meaning that he was not denied any right to counsel. Burgus Decl. ¶ 3; see, e.g., Perez v. Sessions, 690 F. App’x 360, 365 (6th Cir. 2017) (no violation of § 1362 where immigration judge provided alien five additional weeks to obtain counsel); Benjamin v. U.S. Attorney General, 682 F. App’x 725, 729 n.1 (11th Cir. 2017) (no violation where immigration judge provided two continuances to allow alien to obtain counsel). Plaintiffs fail to establish that they are likely to succeed on their right-to-counsel claims. And because that right exceeds the constitutional minimum required by the Due Process Clause, they also fail on their procedural-due-process claim.
Plaintiffs also cannot succeed on their argument (made in footnotes) that this Court can grant preliminary relief based on the APA’s right-to-counsel provision, which states that “[a] person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative.” 5 U.S.C. § 555(b); see Mot. 35 n.64 & 37 n.66. “Congress intended the provisions of the [INA] to supplant the APA in immigration proceedings,” Ardestani v. INS, 502 U.S. 129, 133 (1991), so the only right-to-counsel statute that applies here is the INA’s (8 U.S.C. § 1362), not the APA’s (5 U.S.C. § 555(b)). As discussed above, Defendants have not violated that statute.
Plaintiffs cannot succeed on their access-to-counsel or procedural-due-process claims. B. Considerations of Harm and the Equities Weigh Strongly Against a TRO. It is well-settled that the public interest in enforcement of United States immigration laws
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is significant. United States v. Martinez-Fuerte, 428 U.S. 543, 556–58 (1976); Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. Cir. 1981) (“The Supreme Court has recognized that the public interest in enforcement of the immigration laws is significant.”); see also Nken v. Holder, 556 U.S. 418, 435 (2009). Plaintiffs seek injunctive relief altering Defendants’ response to COVID-19, but the disruptive effect of ordering the relief Plaintiffs seek based on these temporary circumstances would long survive the COVID-19 pandemic, and the precedent would serve to allow organizations and individuals to rewrite the immigration statutes and change federal policy anytime they disagree with the government’s response to a crisis. Granting such far-flung relief based on temporary circumstances is not in the public interest. The public interest is instead best served by allowing the orderly processes and protocols designed to safeguard the essential functions of the immigration system, and implemented by government professionals, to proceed. See Youngberg v. Romeo, 457 U.S. 307, 322–23 (1982) (urging judicial deference and finding presumption of validity for decisions of medical professionals concerning conditions of confinement). The burden and attendant harm caused by the relief Plaintiffs seek, and its impact on EOIR and ICE operations nationwide, is not justified at this preliminary stage.
Against these weighty considerations, Plaintiffs fail to show that they will suffer irreparable injury absent a TRO. Plaintiffs must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22 (emphasis in original). The D.C. Circuit thus “has set a high standard for irreparable injury.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). Plaintiffs claim that “Defendants’ failures to implement uniform, reasonable policies that protect Plaintiffs’ constitutional and statutory rights to counsel and that conform with public health requirements have already injured Plaintiffs (and the public) and will continue to do so absent immediate relief.” Mot. 37; see also Mot. 37–41. They are wrong.
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First, for the reasons explained above, Defendants EOIR and ICE have implemented policies that protect aliens’ rights and safeguard the agencies’ essential functions, with an eye towards maintaining public health. See supra at pp. 4–12.
Second, Plaintiffs’ allegations of certain and irreparable harm fail on their face. Plaintiffs themselves admit that they seek a TRO only to prevent “the possibility of [attending] in-person hearings in 58 of the nation’s 69 immigration courts.” Mot. 1 (emphasis added). And the alleged irreparable harm that they would suffer from this possibility (which they can avoid by requesting telephonic or VTC hearings, or continuances) is the speculative harm of exposure to COVID-19 or the potential for inadequate assistance of counsel caused by EOIR’s and ICE’s policies. Plaintiffs’ claim of future injury is hypothetical—and unlikely, given the precautions that EOIR and ICE have put into place and the guidance it has issued to its immigration judges allowing for telephonic or VTC hearings, see McHenry Decl. ¶¶ 44–100; EOIR Mem. 1–4; ICE Pandemic Response 7–16; Hott Decl. ¶¶ 19–30; Ciliberti Decl. ¶¶ 8–24; Benoit Decl. ¶¶ 13–42; Beckhelm Decl. ¶¶ 10–26; Bretz Decl. ¶¶ 9–23; Simao Decl. ¶¶ 6–15; LaBier Decl. ¶¶ 9–26; Allen Decl. ¶¶ 7–22—and Plaintiffs are not entitled to an immediate shutdown of the immigration court system based on a conjectural injury they have not suffered and may never suffer. See Clapper, 568 U.S. at 416 (finding standing based on fear, even one that is reasonable, “improperly waters down the fundamental requirements of Article III.”); see also Las Americas, 2020 WL 1671584, at *2. Courts considering TRO motions from aliens in immigration detention where there is an absence of specific facts showing that the particular facility had any confirmed cases or was taking inadequate precautions have thus declined to release aliens based on pure speculation about COVID-19. See Dawson, 2020 WL 1304557, at *3 (“The ‘possibility’ of harm is insufficient to warrant the extraordinary relief of a TRO.”).
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Because Plaintiffs’ asserted injuries are highly speculative, they have failed to make the requisite clear showing of “certain and great” irreparable harm necessary to warrant a TRO. Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (1985); Winter, 555 U.S. at 22.
C. Even if This Court Were to Grant a TRO, It Must Be Sharply Limited. As noted above, this Court is barred from awarding the Organizational Plaintiffs any injunctive relief under section 1252(f)(1).4 Thus, even if some preliminary relief were warranted here, the indiscriminate nationwide relief that Plaintiffs seek is far too broad. Any TRO that the Court issues must be limited to the Individual Plaintiffs identified in the Complaint. This is especially true where, as here, Plaintiffs’ requested relief would cause harm to at least some nonparties by delaying bond hearings and merits hearings for aliens who want those hearings to go forward because they may lead to their release. See Mot. 2; McHenry Decl. ¶ 31. First, Plaintiffs seek relief that conflicts with Article III, which requires that a “remedy must be tailored to redress the plaintiff’s particular injury.” Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018). Allowing a party to challenge policies “apart from any concrete application that threatens imminent harm to [their] interests” would “fly in the face of Article III’s injury-in-fact requirement.” Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009). That rule is especially important where plaintiffs do “not represent a class, so they [can] not seek to enjoin [an agency regulation] on the ground that it might cause harm to other parties.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 163 (2010). Second, injunctions that go beyond Plaintiffs’ own injuries exceed the power of a court sitting in equity, which must limit injunctions to “be no more burdensome to the defendant than
4 Notably, the Organizational Plaintiffs only move for relief on Claim I because they are not party to the claims brought in Claims II and III of the Complaint. Therefore, it is even clearer that should this Court find that any relief is appropriate on either of those Counts, it must be limited to the actual individual Plaintiffs who bring those Counts. See Compl. ¶¶ 73–82.
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necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994). It is well established that the scope of a court’s statutory authority to enter injunctive relief is circumscribed by the type of relief that was “traditionally accorded by courts of equity.” Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318–19 (1999). But the tradition of equity inherited from English law was premised on “providing equitable relief only to parties” because the fundamental role of a court was to “adjudicate the rights of ‘individual[s].’” Trump v. Hawaii, 138 S. Ct. 2392, 2427–28 (2018) (Thomas, J., concurring) (quoting The Federalist No. 78, at 466 (Alexander Hamilton) (Clinton Rossiter ed., 1961)). This Court should tailor any relief to the actual Plaintiffs’ injuries.
Third, although Plaintiffs attempt to rely (in a footnote) on the All Writs Act for the basis of their injunction, see Mot. 29 n.57, their claims are rooted in the APA, and the APA does not authorize universal injunctive relief. The APA provides only that a court may “hold unlawful and set aside agency action.” 5 U.S.C. § 706(2). Nothing in § 706(2)’s text specifies whether challenged agency action, if found invalid, should be set aside on its face or as applied to the individuals. In the absence of a clear statement in the APA that it displaces traditional rules of equity, the court should adopt the narrower reading. See Virginia Soc’y for Human Life v. FEC, 263 F.3d 379, 393 (4th Cir. 2001) (“Nothing in the language of the APA, however, requires us to exercise such far-reaching power.”). The absence of nationwide injunctions prior to Congress’ enactment of the APA in 1946 (and for over fifteen years thereafter) further suggests that the APA was not originally understood to authorize such broad relief. See Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 438 & n.121 (2017).
Furthermore, nationwide injunctive relief creates other legal and practical problems— problems which would be acute here, given the variety of different factual circumstances
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surrounding each of the 69 immigration courts and the various ICE detention facilities. Plaintiffs want a one-size-fits-all remedy, disregarding the fact that immigration courts and detention centers across the country have responded appropriately, taking local conditions into account and considering the operations of their individual dockets. McHenry Decl. ¶ 46. A nationwide injunction would freeze immigration-court operations everywhere and limit EOIR’s and ICE’s flexibility to respond to local conditions or issues. Such an injunction circumvents the procedural rules governing class actions, which permit relief to absent parties only if rigorous safeguards are satisfied. See Fed. R. Civ. P. 23. Plaintiffs—who do not raise class claims in their complaint and have not moved to certify a class under Rule 23—have made no effort to explain why they should be entitled to such sweeping relief. Nationwide relief also enables forum shopping and effectively nullifies the decisions of other district courts nationwide, including courts who have considered similar requests to the one here. See DHS v. New York, 140 S. Ct. 599, 601 (2020) (Gorsuch, J., concurring); see also Las Americas, 2020 WL 1671584 (denying similar relief to that requested here). Nationwide relief would also deprive the judicial system of the benefits that accrue when numerous courts grapple with complex legal questions in a common-law-like fashion.
These principles apply with greater force to TROs and preliminary injunctions, which are equitable tools designed to “preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). “[T]he purpose of” preliminary equitable relief “is not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward.” Trump v. IRAP, 137 S. Ct. 2080, 2087 (2017). Courts thus “need not grant the total relief sought by the applicant but may mold [their] decree to meet the exigencies of the particular case.” Id.; U.S. Ass’n of Reptile Keepers, Inc. v. Jewell, 106 F. Supp. 3d 126, 129 (D.D.C. 2015), aff’d sub nom. U.S. Ass’n of Reptile Keepers, Inc. v. Zinke,
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852 F.3d 1131 (D.C. Cir. 2017) (“the Court has not finally determined that the [action] is unlawful,” so “the need for narrow tailoring ... is particularly important,” and any “injunction should be limited in scope to protect only” parties); Neb. Dep’t of Health & Human Servs. v. Dep’t of Health & Human Servs., 435 F.3d 326, 330 (D.C. Cir. 2006) (“district court should not have enjoined agency from applying challenged regulation to any party when an injunction covering plaintiff alone adequately protects it”); California v. Azar, 911 F.3d 558, 584 (9th Cir. 2018).
Finally, even if a TRO were appropriate, Plaintiffs have not shown that the nationwide relief they seek is warranted based on the harms alleged, as weighed against a TRO that would irreparably harm the United States and the public. It is always in the public interest to enforce its immigration laws—including through immigration courts conducting its essential functions. See Landon v. Plasencia, 459 U.S. 21, 34 (1982); Blackie’s House of Beef, Inc., 659 F.2d at 1221. Here, the Executive Branch has identified a crisis and is responding appropriately, with due consideration for local circumstances and aliens’ rights. E.g., McHenry Decl. ¶¶ 44–46, 97. In contrast, Plaintiffs’ alleged injuries are speculative, do not account for recent action that ICE and EOIR have taken to respond to the crisis, and do not outweigh the harm that would be caused by “injunctive relief [that] deeply intrudes into the core concerns of the executive branch,” Adams v. Vance, 570 F.2d 950, 954 (D.C. Cir. 1978), and would undermine the “efficient administration of the immigration laws,” Innovation Law Lab v. McAleenan, 924 F.3d 503, 510 (9th Cir. 2019).
Under these principles, the proposed nationwide TRO is overbroad and should be rejected. If the Court grants relief, the Court must limit any relief to the Individual Plaintiffs and actual clients of the Organizational Plaintiffs’ members whom they can identify as having imminent immigration-court hearings.
CONCLUSION This Court should deny Plaintiffs’ motion for a temporary restraining order,
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Dated: April 13, 2020

Respectfully submitted,
JOSEPH H. HUNT Assistant Attorney General
SCOTT G. STEWART Deputy Assistant Attorney General
WILLIAM C. PEACHEY Director
EREZ REUVENI Assistant Director
LAUREN C. BINGHAM KATHERINE J. SHINNERS BRIAN C. WARD Senior Litigation Counsel
/s/ Alexander J. Halaska ALEXANDER J. HALASKA WILLIAM C. BATEMAN III COURTNEY E. MORAN Trial Attorneys U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 307-8704 | Fax: (202) 305-7000 alexander.j.halaska@usdoj.gov
Counsel for Defendants

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CERTIFICATE OF SERVICE NIPNLG v. EOIR, No. 1:20-cv-00852-CJN (D.D.C.) I certify that on April 13, 2020, I served a copy of the foregoing document and its attachments on all parties of record by causing them to be filed with the Clerk of the Court through the CM/ECF system, which will provide electronic notice to all attorneys of record.

Dated: April 13, 2020

/s/ Alexander J. Halaska ALEXANDER J. HALASKA Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 307-8704 | Fax: (202) 305-7000
Counsel for Defendants

47

Case 1:20-cv-00852-CJN Document 19-1 Filed 04/13/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

DECLARATION OF ALEXANDER J. HALASKA I, Alexander J. Halaska, declare as follows: 1. I am a trial attorney for the U.S. Department of Justice. I represent the federal government Defendants in their official capacities in the above-captioned matter. I am a member in good standing of the bar of the State of Illinois, and I am authorized to practice in the U.S. District Court for the District of Columbia pursuant to Local Civil Rule 83.2(e). I submit this declaration in support of Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Motion for Temporary Restraining Order. 2. Attached hereto as Exhibit 1 is a true and accurate copy of the declaration of James McHenry, Director of the Executive Office for Immigration Review (Apr. 13, 2020). 3. Attached hereto as Exhibit 2 is a true and accurate copy of Executive Office for Immigration Review Policy Memorandum 20-10, Immigration Court Practices During the Declared National Emergency Concerning the COVID-19 Outbreak. 4. Attached hereto as Exhibit 3 is a true and accurate copy of U.S. Immigration and

1

Case 1:20-cv-00852-CJN Document 19-1 Filed 04/13/20 Page 2 of 3
Customs Enforcement’s ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020), except that Exhibit 3 does not include the documents listed as Attachments A–K. The document is available at https://www.ice.gov/sites/default/files/documents/Document/2020/ero COVID19responseReqsCleanFacilities.pdf.
5. Attached hereto as Exhibit 4 is a true and accurate copy of the declaration of Russell Hott, the Acting Assistant Director for U.S. Immigration and Customs Enforcement’s Custody Management Division (Apr. 13, 2020).
6. Attached hereto as Exhibit 5 is a true and accurate copy of the declaration of Acting Chief Immigration Judge Christopher Santoro (Apr. 13, 2020).
7. Attached hereto as Exhibit 6 is a true and accurate copy of guidance issued by Peter Berg, U.S. Immigration and Customs Enforcements Assistant Director for Field Operations (Apr. 4, 2020).
8. Attached hereto as Exhibit 7 is a true and accurate copy of the declaration of Jason Ciliberti (Apr. 13, 2020).
9. Attached hereto as Exhibit 8 is a true and accurate copy of the declaration of Alcide R. Benoit (Apr. 13, 2020).
10. Attached hereto as Exhibit 9 is a true and accurate copy of the declaration of Kelley Beckhelm (Apr. 13, 2020).
11. Attached hereto as Exhibit 10 is a true and accurate copy of the declaration of John Bretz (Apr. 13, 2020).
12. Attached hereto as Exhibit 11 is a true and accurate copy of the declaration of Jose Simao (Apr. 13, 2020).
13. Attached hereto as Exhibit 12 is a true and accurate copy of the declaration of

Case 1:20-cv-00852-CJN Document 19-1 Filed 04/13/20 Page 3 of 3
Christopher L. LaBier (Apr. 13, 2020). 14. Attached hereto as Exhibit 13 is a true and accurate copy of the declaration of Brian
Allen (Apr. 13, 2020). 15. Attached hereto as Exhibit 14 is a true and accurate copy of the declaration of
Elizabeth Burgus (Apr. 13, 2020). Plaintiff Rodriguez Cedeno’s A number is redacted from the declaration.
16. Attached hereto as Exhibit 15 is a true and accurate copy of the declaration of Elizabeth Burgus (Apr. 13, 2020). Plaintiff Estrada Fernandez’s A number is redacted from the declaration.
I declare under penalty of perjury that the foregoing is true and accurate to the best of my knowledge. Executed on April 13, 2020, in Washington, D.C.
/s/ Alexander J. Halaska ALEXANDER J. HALASKA U.S. Department of Justice

Case 1:20-cv-00852-CJN Document 19-2 Filed 04/13/20 Page 1 of 35

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

EXHIBIT 1

Case 1:20-cv-00852-CJN Document 19-2 Filed 04/13/20 Page 2 of 35

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
v.
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,
Defendants.

Civil Action No. 1:20-cv-00852-CJN

DECLARATION OF JAMES MCHENRY, DIRECTOR OF THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

Case 1:20-cv-00852-CJN Document 19-2 Filed 04/13/20 Page 3 of 35
I, James McHenry, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that my testimony below is true and correct: 1. I am the Director of the Executive Office for Immigration Review (EOIR), a component with
the Department of Justice (DOJ). 2. I have held the position of Director since January 2018. I was previously the Acting Director
from May 2017 to January 2018. At EOIR I previously served as an Administrative Law Judge (ALJ) from November 2016 to May 2017 and as a Judicial Law Clerk/Attorney Advisor from October 2003 to September 2005. 3. Outside of EOIR, I worked for the Office of the Principal Legal Advisor (OPLA), Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS) from October 2005 to August 2014 as an Assistant Chief Counsel and, later, as a Senior Attorney. In that capacity I frequently represented DHS in immigration court proceedings before multiple immigration judges, primarily in an immigration court in Atlanta, Georgia. I also served as a lead attorney for national security, denaturalization, and gang cases, anti-human trafficking operations, and worksite enforcement matters. Between 2010 and 2011, I also served a detail as a Special Assistant United States Attorney for the Criminal Division of the United States Attorney’s Office for the Northern District of Georgia. 4. Between August 2014 and November 2016, I worked as an Administrative Law Judge in the Social Security Administration (SSA). 5. As the EOIR Director, I manage EOIR and its employees and am responsible for the supervision of each EOIR component in the execution of its respective duties in accordance with the law.
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6. My testimony in this declaration is based upon my experience with and personal knowledge of EOIR’s operations, information obtained from records and systems maintained by EOIR, and publicly available statements or announcements.
7. I am testifying in this declaration to the best of my knowledge and understand this declaration is for use in the National Immigration Project of the National Lawyers Guild (NIPNLG) case. Background
8. EOIR contains three components responsible for immigration-related administrative adjudicatory proceedings conducted under the Immigration and Nationality Act (INA) and associated regulations.
9. The Office of the Chief Immigration Judge (OCIJ) oversees the operations of EOIR’s immigration courts. OCIJ currently operates 69 immigration courts and immigration adjudication centers (IAC) in 29 states, Puerto Rico, and the Northern Mariana Islands.1
10. Immigration courts located within a detention center operated or leased by DHS hear exclusively detained cases. A small number of courts located outside a DHS detention facility also hear primarily or exclusively detained cases. A small number of courts hear primarily or exclusively non-detained cases, but may conduct bond hearings as appropriate. The remaining plurality of immigration courts hear primarily non-detained cases but also maintain regularlyscheduled dockets for detained cases. The two IAC hear cases exclusively by video teleconferencing (VTC). All immigration courtrooms are equipped with VTC technology.
11. OCIJ currently employs approximately 460 immigration judges (IJs) authorized to conduct proceedings under the INA and the associated regulations. Over 1200 support staff, including contractors, further support immigration court operations.
1 https://www.justice.gov/eoir/eoir-immigration-court-listing
2

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12. IJs preside over multiple types of proceedings. Among the most common are removal proceedings, custody redetermination proceedings (bond proceedings), and credible fear review proceedings.
13. Removal proceedings are conducted pursuant to section 240 of the INA. As of April 3, 2020, there were 19,518 pending detained cases in removal proceedings and 1,088,785 pending nondetained cases in removal proceedings.
14. All cases in removal proceedings are initiated by DHS, and DHS generally retains prosecutorial discretion in determining whether to place an alien into removal proceedings. For aliens convicted of crimes which render them removable, Congress has directed that DHS “shall begin any removal proceeding as expeditiously as possible after the date of the conviction.”2 DHS initiates removal proceedings by serving a charging document, called a Notice to Appear (NTA), on an alleged alien and then filing the NTA with an immigration court. Once the NTA is filed with an immigration court, court personnel will create a record of proceeding (ROP) for the case. The NTA contains various information, including factual allegations and charges of removability based on alleged violations of either section 212 or 237 of the INA.3 In some cases, the NTA provides notification of the time and date of the first hearing in removal proceedings, but if it does not, the immigration court provides notice.
15. In removal proceedings, DHS is represented by an attorney within OPLA. In removal proceedings, an alleged alien has the privilege of being represented by an attorney at no expense to the Government.4
2 8 U.S.C. § 1229(d)(1). 3 8 U.S.C. § 1229(a)(1). 4 8 U.S.C. § 1362.
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16. Removal proceedings generally encompass two types of hearings, master calendar hearings and individual, or merits, hearings. Master calendar hearings are typically brief procedural hearings, which are roughly analogous to initial appearances or arraignments in criminal proceedings. At a master calendar hearing, an immigration judge will provide multiple advisals to an alien, apprise the alien of the alien’s rights in removal proceedings, go over the contents of the NTA, assess whether an unrepresented alien wishes to seek representation, provide a list of pro bono legal service providers to the alien, assess whether the alien may be eligible for any form of relief or protection from removal, including asylum, and if eligible, provide the alien with an opportunity to apply for such relief.5 After providing the required advisals and depending on the specific facts of each case and how the alien wishes to proceed, an immigration judge may also take pleadings and determine removability at a master calendar hearing. The immigration judge may also rule on any motions that have been filed. Unless an alien decides to accept an order of removal or voluntary departure at the initial master calendar hearing or unless an immigration judge decides that the proceedings should be terminated, most removal cases encompass multiple master calendar hearings followed by one individual hearing. Once an immigration judge has found an alien removable as charged and determined that the alien is prima facie eligible for a form of relief or protection from removal, the immigration judge will schedule an individual, or merits, hearing on the application for relief or protection. An individual hearing is roughly similar to a bench trial, and the immigration judge will consider the evidence submitted by the parties related to the alien’s application. At the conclusion of the individual hearing, the immigration judge will typically render an oral
5 8 C.F.R. §§ 1240.10(a) and 1240.11(a)(2) and (c).
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decision, though in more complex cases, the immigration judge may reserve a decision and issue a written decision at a later date. 17. During removal proceedings, an IJ will first determine removability. If the IJ determines that the alleged alien is not removable as charged, the IJ will terminate the proceedings. If the IJ determines that the alien is removable as charged, then the IJ will consider whether the alien is eligible for any relief or protection from removal. At the conclusion of removal proceedings, if they have not been terminated, an IJ will issue an order of removal, an order of voluntary departure, or an order granting relief or protection. Some orders may be issued in the alternative. Both DHS and the alien may appeal the IJ’s decision to the Board of Immigration Appeals (the Board), another component within EOIR. 18. By statute, an alien who fails to attend a scheduled hearing shall be ordered removed in absentia if DHS establishes both the alien’s removability and that the alien received proper notice of the hearing.6 An in absentia order of removal may be rescinded based on a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice or the alien demonstrates that the alien was in state or federal custody.7 An in absentia order of removal may also be rescinded based on a motion to reopen filed within 180 days if the alien demonstrates that the alien’s failure to appear was because of exceptional circumstances.8 Exceptional circumstances “refers to exceptional circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien.”9
6 8 U.S.C. § 1229a(b)(5). 7 8 U.S.C. § 1229a(b)(5)(C)(ii). 8 8 U.S.C. § 1229a(b)(5)(C)(i). 9 8 U.S.C. § 1229a(e)
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19. Aliens in the physical custody of DHS do not generally fail to attend hearings of their own volition and, thus, there is rarely, if ever, a basis to support the issuance of an in absentia order of removal for an alien in the physical custody of DHS.
20. In addition to statutes, regulations, and case law, removal proceedings are generally conducted in accordance with the Immigration Court Practice Manual (ICPM),10 though an IJ may direct that the provisions of the ICPM not rooted in statute or regulation do not apply in particular cases.11 For non-detained cases, the ICPM sets a general filing deadline of 15 days before a master calendar hearing if the party is requesting a ruling prior to the hearing; otherwise, filings may be made at any time prior to the hearing or in open court during the hearing.12 For nondetained cases, the ICPM sets a general filing deadline of 15 days before an individual hearing, excluding impeachment or rebuttal evidence, and objections to the evidence may be made at any time.13 For all detained hearings, the ICPM defers to individual immigration judges to specify deadlines.14 For all hearings, an IJ retains discretion to set his or her own deadline, and IJs vary in the extent to which they follow the ICPM in non-detained cases.15
21. IJs also have the authority to grant extensions of filing deadlines in advance of the deadline or to excuse untimely filings made after a deadline has passed. Untimely filings are not rejected by immigration court staff, and the IJ retains authority for how to deal with untimely filings.16
22. Although EOIR does not have experience with delayed filings due to a disease such as COVID19, it does have significant experience with filings delayed due to comparable situations such as hurricanes or other natural disasters. In those situations, parties should file a motion to accept
10 https://www.justice.gov/eoir/page/file/1258536/download 11 ICPM, ch. 1.1(b) and (c). 12 ICPM, ch. 3.1(b)(i)(A). 13 ICPM, ch. 3.1(b)(ii)(A). 14 ICPM, ch. 3.1(b)(i)(B) and (b)(ii)(B). 15 ICPM, ch. 1.1(b) and (c). 16 ICPM, ch. 3.1(d)(iii) and (iv).
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the untimely filing.17 In my experience, properly filed and supported motions to accept untimely filings due to natural disasters are rarely denied. Similarly, in my experience, properly filed and supported motions to extend a filing deadline due to an impending natural disaster, such as a hurricane, are also rarely denied. 23. In general, in my experience, for untimely filings related to an individual hearing, IJs frequently either excuse the untimeliness of the filing at the hearing or continue the case to another date to allow both the IJ and the opposing party additional time to review the filing. 24. How an IJ addresses an untimely filing will also depend on the specific facts of the case, the nature of the filing, and the extent of its untimeliness. For example, an IJ may not address the timeliness of a filing that is found to be cumulative or irrelevant because such a filing would be excluded from evidence even if it were timely. In my experience, the probative value of the filing, rather than its timeliness, is the most dispositive factor in how an IJ assesses the filing. Based on my experience, as a general—though not universal—proposition, the more probative the filing, the more likely an IJ will overlook its untimely filing. 25. Regulations also provide for the filing of motions for a continuance based upon a showing of good cause, and IJs possess authority to sua sponte adjourn cases.18 Whether good cause exists depends on the specific facts of each case. 26. Deadlines for filing motions to reopen, motions to reconsider, and appeals are generally set by statute or regulation. Although IJs and members of the Board cannot alter those deadlines per se, evolving case law has made many of them subject to equitable tolling. Thus, depending on fact-specific circumstances of individual cases and applicable case law, equitable tolling may excuse filings not meeting these deadlines.
17 ICPM, ch. 3.1(d)(iii) and (iv). 18 8 C.F.R. §§ 1003.29 and 1240.6.
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27. During a bond proceeding for an adult, an IJ determines whether a detained alien is eligible for release from DHS custody and, if so, under what conditions.19 IJs also have authority to consider requests to ameliorate the conditions of release from custody if the request is filed within 7 days of release.20 An IJ may consider a request for bond even in cases where DHS has not filed an NTA. Based on evolving case law, an IJ may also have jurisdiction to consider bond requests for aliens whose removal proceedings have concluded but who have not yet been removed. An IJ may not grant bond or redetermine conditions of custody sua sponte.21
28. Any individual in DHS custody may request a bond hearing prior to the issuance of an administratively final order of removal. The initial request may be in writing or it may be made orally to the IJ during the individual’s regularly-scheduled hearing. If requested in writing, the immigration court is supposed to schedule the hearing within three to five days after the request is received.22 If requested orally, an IJ will typically conduct the bond hearing after concluding the scheduled hearing in order to keep the proceedings separate. Either party may appeal the IJ’s bond decision to the Board.
29. An ROP for a bond proceeding is maintained separately from an ROP for a removal proceeding.23 In my experience, at least one party typically files documents in a bond proceeding, and in some proceedings both parties file documents. OPLA frequently files a Form I-213, Record of Deportable/Inadmissible Alien, and the alleged alien often, though not always, files documentation to support a bond request. In cases involving detained aliens with criminal convictions, OPLA almost always files conviction records to assist the IJ in
19 8 C.F.R. §§ 1003.19 and 1236.1(d). 20 8 C.F.R. § 1236.1(d); Matter of Garcia-Garcia, 25 I&N Dec. 93 (BIA 2009). 21 Matter of P-C-M-, 20 I&N Dec. 432 (BIA 1991). 22 EOIR Policy Memorandum 20-07, Case Management and Docketing Practices (Jan. 31, 2020) at 2, https://www.justice.gov/eoir/page/file/1242501/download 23 8 C.F.R. § 1003.19(d).
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determining whether the alleged alien is eligible for bond or may be subject to mandatory detention.24 30. Administrative support staff for a court are responsible for creating and maintaining the ROP for a bond proceeding, including placing any paper filings in the ROP. IJs do not typically print out filings, assemble the ROP, or maintain physical custody of it. Bond hearings are not required to be recorded, but some IJs do record the hearings. IJs in certain parts of the country are required to record bond hearings in certain types of cases due to court rulings.25 31. Some adult aliens are not eligible for a bond from an IJ while their removal proceedings are pending due either to their criminal history or their manner of attempted entry into the United States.26 Such aliens may nevertheless be released from DHS custody if an IJ terminates their removal proceedings or grants them relief or protection at the conclusion of an individual hearing in their removal proceeding case. For example, an immigration judge generally lacks jurisdiction to grant bond to a detained “arriving alien,”27 but if the immigration judge grants that alien’s asylum application following an individual merits hearing, then in my experience, there is a strong likelihood DHS will release that alien from custody. Similarly, an immigration judge generally lacks jurisdiction to grant bond to a detained lawful permanent resident (LPR) alien convicted of certain crimes,28 but immigration judges do have authority to cancel the removal of an LPR whose conviction is not an aggravated felony, who meets other criteria, and who warrants a favorable exercise of discretion.29 In my experience, IJs often grant cancellation of removal to LPR who are statutorily eligible following an individual hearing,
24 8 U.S.C. § 1226(c); 25 Singh v. Holder, 638 F.3d 1196, 1208 (9th Cir. 2011). 26 8 U.S.C. §§ 1225(b), 1226(c); 8 C.F.R. § 1003.19(h)(2)(i). 27 8 C.F.R. § 1003.19(h)(2)(i)(B). 28 8 U.S.C. §, 1226(c); 8 C.F.R. § 1003.19(h)(2)(i)(D). 29 8 U.S.C. 1229b(a).
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and upon the granting of such relief, there is also a strong likelihood that DHS will release the LPR from custody. Thus, for detained aliens, both bond proceedings and removal proceedings provide a potential mechanism for release from custody, and the blanket postponement of all detained cases would deprive aliens of the opportunity to avail themselves of that mechanism. Between March 17 and April 9, 2020, for example, IJs either terminated proceedings or granted an application for relief or protection from removal for approximately 334 detained aliens, who may now be amenable to release from detention, but who would not necessarily have had that opportunity if their proceedings had been postponed. 32. Pursuant to paragraph 24A of what is known as the Flores Settlement Agreement (FSA), as interpreted by the Ninth Circuit, EOIR is required to hold bond hearings for any unaccompanied alien child (UAC) detained in the custody of the Department of Health and Human Services (HHS) in a secure or staff-secure facility or for any UAC who has affirmatively requested a hearing, including by requesting a hearing directly from the IJ.30 During a bond proceeding for a UAC, an IJ determines whether a UAC is a danger to the community or is a flight risk, though HHS may not release a UAC determined to be neither a flight risk nor a danger to the community until a suitable sponsor is located. Either party may appeal the IJ’s bond decision to the Board. Because a UAC may request a bond hearing directly from an IJ during a regularly-scheduled hearing, the blanket postponement of all detained cases would deprive some UAC of the opportunity to request a bond hearing and potentially subject EOIR to liability for violating the FSA and disregarding a district court order. 33. Neither adult nor juvenile aliens are required to file a written motion or request in order to receive an initial bond hearing, and many aliens often request a bond hearing orally during
30 Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017)
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their regularly-scheduled hearings. Thus, postponing all regular hearings for detained aliens would necessarily require all such aliens to request a bond hearing in writing which is a requirement not currently imposed by the applicable regulation.31 34. Both DHS and HHS have authority to release aliens in their custody separate and apart from the authority of an IJ, though HHS cannot simply release a UAC alone without the availability of a sponsor.32 The blanket postponement of all detained cases in removal proceedings—and, thus, the elimination of the availability of a detained alien to make an oral bond request in front of an IJ and the elimination of any opportunity for an IJ to terminate proceedings or to grant the alien’s application for relief or protection that would make the alien amenable to release— would place extraordinary pressure on both DHS and HHS to release all aliens in their custody to avoid possible constitutional violations or violations of existing federal court orders. The mass release from custody of all detained aliens, including criminal aliens or aliens with national security concerns, in DHS custody and UAC in HHS custody, would have significant, adverse consequences for public safety. 35. Further, the blanket postponement of all detained cases in removal proceedings, including initial master calendar hearings for aliens recently detained by DHS, would make it extremely difficult for DHS to arrest and detain aliens prospectively, even aliens with significant criminal histories or national security concerns, because of the uncertainty of how long an alien would have to remain in custody before being able to obtain a hearing in front of an IJ that may lead to the alien’s release.
31 8 C.F.R. 1003.19(b), 32 8 U.S.C. §§ 1182(d)(5), 1226(a), and 1232(c).
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36. An alien otherwise subject to expedited removal may avoid removal initially if the alien demonstrates a credible fear of persecution or torture.33 An alien’s claim of a fear of persecution or torture is first reviewed by DHS.34 If DHS determines that the alien does not have a credible fear of persecution or torture, the alien may seek review of that determination by an IJ.35 By statute, that review “shall be concluded as expeditiously as possible, to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date of the [DHS] determination.”36 If either DHS or an IJ finds that an alien does possess a credible fear of persecution or torture, that alien is placed in removal proceedings for a full consideration of his or her application for asylum.37
37. By statute, most aliens are detained during the credible fear review process, and an IJ does not have jurisdiction to grant an alien bond while that process is ongoing.38 Whether an alien who has been found to have a credible fear and subsequently placed in removal proceedings is eligible for release from custody is the subject of ongoing litigation, and the most recent ruling from the Ninth Circuit on March 27, 2020, affirmed that such aliens who had entered the country illegally are eligible for a bond hearing.39 Even if such aliens are ultimately determined not to be eligible for bond, the granting of such an alien’s asylum application by an IJ in removal proceedings would typically cause DHS to release the alien from custody. Consequently, the postponement of credible fear review proceedings would effectively preclude aliens in those proceedings from any opportunity to seek release from custody except
33 8 U.S.C. § 1225(b)(1)(A)(i) and (ii). 34 8 U.S.C. §§ 1225(b)(1)(A)(ii) and (b)(1)(B). 35 8 U.S.C. § 1225(b)(1)(B)(iii)(III). 36 8 U.S.C. § 1225(b)(1)(B)(iii)(III). 37 8 U.S.C. § 1225(b)(1)(B)(ii); 8 C.F.R. § 1208.30(g)(2)(iv)(B). 38 8 U.S.C. § 1225(b)(1)(B)(iii)(IV). 39 Padilla v. ICE, ---F.3d--- (9th Cir. 2020).
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through federal habeas corpus litigation which itself is the subject of a case pending before the Supreme Court. 38. By regulation, “[i]n deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.”40 No employee at EOIR, except members of the Board acting on an appeal from the decision of an immigration judge, possesses the authority to direct the result of an adjudication assigned to an immigration judge.41 39. By regulation, as Director, I do not have the authority to adjudicate cases in immigration court or to direct the result of an adjudication assigned to an immigration judge, unless provided for by statute, regulation, or delegation of authority from the Attorney General.42 No existing statute, regulation, or delegation of authority from the Attorney General provides me authority to adjudicate cases or to direct the result of an adjudication assigned to an immigration judge. Consequently, I do not have authority to direct immigration judges to deny or grant any motion in individual cases or to direct any result in any case in immigration court. If I were to order immigration judges to deny or grant motions in individual cases, I would be infringing on the independence and discretion accorded to immigration judges and potentially violating the regulations.
40 8 C.F.R. § 1003.10(b). 41 8 C.F.R. §§ 1003.0(c), (e)(2), (f), 1003.9(c), and 1003.10(b). 42 8 C.F.R. § 1003.0(c).
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40. Immigration judges do have the authority to issue standing orders in certain circumstances.43 Immigration courts may also adopt local operating procedures.44 Many courts and IJs hearing detained cases have done so over the past three weeks in response to the COVID-19 outbreak and have tailored them to the particular circumstances of their respective dockets.45
41. The Board operates as the administrative appellate tribunal for appeals of immigration judge decisions. It also hears a limited number of appeals of certain types of adjudications initially conducted by DHS.
42. Like IJs, members of the Board exercise “independent judgment and discretion” in considering the cases that come before them.46 No EOIR employee can direct a Board Member to decide a motion or an appeal to obtain a particular result.47
43. The Office of the Chief Administrative Hearing Officer (OCAHO) administers proceedings conducted by ALJs pursuant to 8 U.S.C. §§ 1324a, 1324b, and 1324c. Within OCAHO, the Chief Administrative Hearing Officer (CAHO) hears appeals of ALJ decisions in cases heard under 8 U.S.C. §§ 1324a and 1324c. No EOIR employee can direct an ALJ to adjudicate a case in a particular manner, except the CAHO in adjudicating an appeal from an ALJ decision. Court Operations in Response to COVID-19.
44. COVID-19 has presented challenges to EOIR, as it has to almost every court system in the United States, in ensuring that critical functions continue while the agency simultaneously aggressively monitors and works to mitigate risks presented by COVID-19 to those within EOIR space. As with any type of emergency situation, EOIR is continually assessing how to
43 EOIR Policy Memorandum 20-09 (PM 20-09), The Immigration Court Practice Manual and Orders (Feb. 13, 2020), https://www.justice.gov/eoir/page/file/1249276/download . 44 8 C.F.R. § 1003.40. 45 https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic 46 8 C.F.R. § 1003.1(d)(1)(ii). 47 8 C.F.R. §§ 1003.0(c), (e)(2), (f) and 1003.1(a)(2)(ii) and (d)(1)(ii).
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best ensure the safety of employees, respondents, practitioners, and visitors. It continues to closely review and implement guidance from the Department of Justice, the Office of Management and Budget, the Office of Personnel Management, the Centers for Disease Control and Prevention (CDC), and the General Services Administration in responding to issues concerning specific locations or employee situations related to COVID-19. EOIR takes the safety, health, and well-being of its employees respondents, practitioners, and visitors very seriously and will continue to respond to the COVID-19 outbreak accordingly, while also attempting to ensure that its critical and essential judicial functions continue. 45. I have closely observed that many court systems have grappled with the operational challenges posed by the outbreak of COVID-19. I have observed that few courts have closed entirely, but I understand that most federal, state, and administrative courts have scaled back operations to what may be characterized as essential or critical services. I have observed that many courts continue to process filings, including those submitted by mail or electronically. I have observed that many courts continue to adjudicate motions or filings that may be resolved without a hearing. I am aware that many, though not all, courts have also continued to conduct critical hearings of individuals in custody, including detention hearings. I am aware that many, if not most, courts have issued multiple announcements in March and April 2020 regarding their operational statuses and that these announcements are typically posted on the website for each court. I am also aware that the federal courts with social media accounts have also used social media channels to communicate announcements regarding their operational statuses. I am unaware of any legal challenges to the continued operation of other court systems or why the continued operation of those courts on a scaled-down level do not pose the same issues alleged by Plaintiffs regarding EOIR.
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46. Because COVID-19 has not affected all communities nationwide in the same manner and because EOIR’s dockets vary considerably from court to court, the challenges presented by COVID-19 are not the same for every immigration court. In recognition of these variances and of the fact that local immigration judges and court staff are often in the best position to address challenges tailored to the specifics of their court’s practices, EOIR has not adopted a “one size fits all” policy for every immigration court, though it has issued generally-applicable guidance regarding access to EOIR space, the promotion of practices that reduce the need for hearings, and the maximization of the use of telephonic and VTC means through which to hold hearings.
47. Overall, EOIR has followed a path similar to that of other courts. EOIR has implemented a number of measures to maximize social distancing. For example, on March 18, 2020, I issued EOIR Policy Memorandum (PM) 20-10 restricting access to EOIR space for individuals at risk of having COVID-19; reminding practitioners and IJs of well-established law that could help minimize the risk of exposure to COVID-19 such as waiving appearances,48 granting continuances,49 limiting physical presence in the courtroom,50 issuing standing orders,51 deviating from the ICPM,52 and conducting hearings by VTC or by telephone; and, encouraging IJs and the parties to resolve cases through written filings53 and establishing a policy of conducting hearings through VTC or by telephone54 to the maximum extent practicable consistent with the law.55 PM 20-10 was modeled on similar orders issued by federal district courts.
48 8 C.F.R. § 1003.25(a). 49 8 C.F.R. §§ 1003.29 and 1240.6. 50 8 C.F.R. § 1003.27(a) and (b). 51 PM 20-09. 52 ICPM, ch. 1.1(b) and (c). 53 8 C.F.R. § 1003.25(b). 54 8 U.S.C. § 1229a(b)(2); 8 C.F.R. § 1003.25(c). 55 EOIR Policy Memorandum 20-10, Immigration Court Practices During the Declared National Emergency Concerning the COVID-19 Outbreak (Mar. 18, 2020), https://www.justice.gov/eoir/file/1259226/download
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48. PM 20-10 also commits EOIR to using alternative hearing mediums—such as hearings by telephone or by VTC—“to the maximum extent practicable in accordance with the law” to further minimize in-person interaction and reduce the risk of the spread of COVID-19. All immigration courts have the equipment to conduct hearings through VTC. When conducting hearings by video or telephone conference, the IJ, the respondent, the DHS attorney, and the witness do not need to be present in the same location.56 For example, some courts use VTC to connect to another courtroom from an IJ’s courtroom in the same court. Thus, the detainee is in a separate courtroom. If represented, the attorney could appear by telephone—and in many courts currently, prior approval or the filing of a motion is not required to appear telephonically—or appear in person.
49. Additionally, in master calendar and bond hearings, IJs and immigration courts have curtailed the number of detainees allowed in a courtroom at one time. Courts not located in detention facilities have also used VTC to conduct hearings, and some courts have conducted VTC hearings where the respondent appears in DHS space, rather than in an EOIR courtroom.
50. VTC is commonly used for detained hearings already, and EOIR conducted almost 35,000 hearings by VTC in the first quarter of FY 2020.57 Aliens may also consent to have their individual hearings occur by telephone, though VTC is more logistically feasible for aliens who are detained.
51. Between March 18 and March 26, 2020, EOIR conducted approximately 81.5% of credible fear reviews by telephone or by VTC. Excluding removal cases heard by an immigration court physically located inside a DHS detention facility, EOIR conducted approximately 76.4% of removal hearings during that same time period by telephone or by VTC. For cases heard by a
56 ICPM ch. 4.7(b). 57 https://www.justice.gov/eoir/page/file/1117301/download
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court physically located inside a DHS detention facility, no policy or law prevents either party from requesting to follow social distancing guidelines within the courtroom or prevents the IJ from following those guidelines sua sponte. 52. OCIJ has further taken specific steps at the 58 immigration courts that maintain dockets of detained cases to minimize risk of exposure to COVID-19 to employees, aliens, and practitioners. These steps include consolidating dockets so that fewer IJs are needed to hear cases; establishing standing orders to allow practitioners to appear telephonically; maintaining social distancing in courtrooms; and, furthering the use of VTC and the telephone for hearings, including utilizing empty courtrooms as needed to avoid the need for a detained alien to appear in person before an IJ, and relocating IJs to nearby courts to hear cases by VTC. As of April 10, 2020, OCIJ has maximized its VTC usage for hearings at all but four of the 58 immigration courts hearing detained cases and is actively working on maximizing the use of VTC at the remaining four.58 53. On March 18, 2020, EOIR postponed all removal hearings of non-detained aliens through at least April 10, 2020. 54. On March 23, 2020, EOIR postponed all removal hearings involving aliens placed in removal proceedings under the auspices of DHS’s Migrant Protection Protocols (MPP) program through at least April 22, 2020. 55. Although EOIR has completely closed particular immigration courts for a limited period of time and on a court-specific basis for issues related to COVID-19, courts that are open are limited to the performance of essential functions, such as those associated with hearing cases
58 Two of the four courts are awaiting the installation of VTC capability and recording programming on the IJs’ computers to allow them to conduct hearings remotely rather than in court. One court is awaiting testing of VTC equipment. The fourth hears only one detained docket per month and is assessing its technological capability to hear that docket by VTC in May if warranted.
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of detained individuals or with the processing of mail and filings. At courts without a regular detained docket, EOIR’s staff presence is minimal, as is their interaction with the public. Overall, EOIR’s current operating posture is similar, though not completely identical, to the one in which it operates during a lapse in appropriations in which only critical functions continue. 56. The impact of postponements and court closures on any filing deadlines varies considerably from case to case and depends on the nature of the filing, the procedural posture of the specific case, and the IJ’s specific order on filings, if any. Because filing deadlines are committed by the ICPM to IJs for all detained cases, the impact of any court closures will depend on any specific order issued by an IJ in a particular case. 57. Unless there is a specific IJ order to the contrary, postponements and court closures would not be expected to raise issues regarding filing deadlines for non-detained cases at the master calendar stage because any deadline imposed by the ICPM only applies to a motion and only applies if the party wishes to receive a ruling on the motion prior to the hearing. “Otherwise filings may be made either in advance of the hearing or in open court during the hearing.”59 58. Similarly, unless there is a specific IJ order to the contrary, postponements and court closures would also not be expected to raise issues regarding filing deadlines for non-detained cases at the individual calendar stage. If the IJ has ordered that the deadlines in the ICPM are applicable, the postponement of the hearing would necessarily postpone the deadline because the ICPM deadline applies in advance of date of the “hearing” which may change if the hearing is postponed.60 If a court is closed when a deadline occurs, the deadline then becomes the next
59 ICPM, ch. 3.1(b)(i)(A). 60 ICPM, ch. 3.1(b)(ii)(A).
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business day the court is open.61 These rules are longstanding, and in my experience, most, if not all, practitioners are well aware of them. 59. I understand that on March 24, 2020, EOIR announced via social media the reopening of several immigration courts handling primarily, if not exclusively, non-detained cases and noting that filings due to those courts during the time they were closed would be due the next business day. Although this announcement was consistent with the longstanding rule that filings due when a court is closed become due on the next business day the court is open, it nevertheless caused confusion because it did not account for the fact that all non-detained hearings had been postponed through April 10, 2020. Consequently, the earliest possible due date for a filing in a non-detained case following the ICPM would have been 15 days prior to the earliest possible scheduled non-detained hearing, which would not occur until April 13, 2020. Thus, filings for hearings scheduled on April 13, 2020, were not actually due until March 30, 2020.62 60. I did not see or approve the initial announcement on March 24, 2020, before it was posted on social media, and once I became aware of it, I immediately directed that it be changed to reflect that filings would be due by March 30, 2020. Going forward, EOIR has implemented additional internal protocols regarding its messaging on social media, and I have directed that EOIR be more careful in reviewing announcements it makes via social media. 61. EOIR has not completely closed—meaning closed even to process mail or receive filings—all immigration courts. The complete closure of all immigration courts would preclude IJs from hearing any cases because IJs do not assemble ROPs themselves, they typically do not print
61 8 C.F.R. § 1001.(h); ICPM, ch. 3.1(c)(i) and (ii). 62 Fifteen days prior to April 13, 2020, fell on Sunday March 29. Thus, any filings would have actually been due on Monday March 30.
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out electronic filings themselves, and they would have no way of retrieving any relevant filings from a closed court. The complete closure of all immigration courts would also render aliens subject to removal by DHS without an opportunity to file a motion to reopen or to seek a stay of removal.63 Such an action would be contrary to statutory provisions allowing the filing of a motion to reopen64 and would likely be viewed as a violation of due process for aliens whose removal is imminent. Accordingly, EOIR is continuing to receive and process filings at all courts, including motions to reopen. 62. EOIR has also not issued a blanket postponement of hearings of detained individuals. To do so would raise serious constitutional and due process concerns, would be contrary to at least one section of the INA, and would subject EOIR to potential litigation risk for violating court orders or failing to follow binding circuit court decisions. 63. A blanket postponement of all hearings of detained individuals would raise constitutional concerns regarding the intentional prolonging of an alien’s detention and the functional elimination of an alien’s ability to challenge the alien’s detention through a proceeding before an IJ. 64. Preventing a detained alien from receiving a review of a negative credible fear determination for an unknown or indefinite period of time would be contrary to 8 U.S.C. § 1225(b)(1)(B)(iii)(III). It would also prevent that alien from potentially obtaining release from custody. 65. Preventing hearings from occurring would prevent DHS from filing an NTA to initiate proceedings with the time and date of the next hearing. Such an action would not only infringe upon DHS’s prosecutorial discretion to bring removal proceedings but would also appear to be
63 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R. § 1003.23. 64 8 U.S.C. § 1229a(c)(7).
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contrary to 8 U.S.C. § 1229(d)(1), which directs DHS to initiate removal proceedings against aliens removable due to criminal convictions “as expeditiously as possible after the date of the conviction.” 66. In my experience, many, if not most, aliens who are detained do not want any additional delay in their proceedings precisely because they are detained. Moreover, many detained aliens actively seek either an order of removal or an order of voluntary departure because they wish to return to their home countries. Thus, postponing all detained hearings would prolong detention for some aliens against their wishes and would force some aliens to remain detained even though the alien and DHS are in agreement that the alien should return to the alien’s home country. 67. EOIR must comply with rulings from multiple federal courts across the country requiring the provision of bond hearings in certain circumstances. For example, based on federal court rulings in some districts or circuits, EOIR is required to hold bond hearings, inter alia, for UAC,65 for aliens detained more than six months,66 for aliens in withholding-only proceedings,67 for aliens otherwise subject to the mandatory custody provisions of 8 U.S.C. § 1226(c),68 for juvenile aliens re-arrested after being released by HHS,69 and for aliens who have been found to have a credible fear of persecution or torture.70 The blanket postponement of all detained hearings would place EOIR at serious risk of violating federal court orders or rulings in each of these circumstances because it would prevent EOIR from scheduling and
65 Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017). 66 Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008); Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2010); Gonzales v. Sessions, 325 F.R.D. 616 (N.D. Cal. 2018); Rodriguez v. Marin, 909 F.3d 252 (9th Cir. 2018). 67 Guerra v. Shanahan, 831 F.3d 59 (2d Cir. 2016); Martinez Baños v. Asher, 2018 WL 3244988 (W.D. Wash. 2018); Diaz v. Hott, 297 F.Supp. 3d 618 (E.D. Va. 2018). 68 Gayle v. Warden, Monmouth Cty. Correctional Inst., 2017 WL 5479701 (D.N.J. 2017). 69 Saravia v. Sessions, 905 F.3d 1137 (9th Cir. 2018). 70 Padilla v. ICE, ---F.3d--- (9th Cir. 2020).
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holding hearings at which an alien could orally request bond pursuant to some of these decisions, would effectively require each alien to file a written motion for bond in excess of the requirements of either the applicable regulation or the holdings of many of the cases, and would prevent EOIR from holding hearings in which an alien could potentially obtain some form of relief or protection from removal that would render the alien amenable to release. 68. On March 30, 2020, EOIR announced that all non-detained hearings were further postponed through May 1, 2020. For non-detained cases in which the IJ is following the ICPM for filing deadlines, that means that the earliest date filings could be due prior to an individual hearing is April 20, 2020. 69. On April 1, 2020, EOIR postponed all removal hearings involving aliens placed in removal proceedings under the auspices of DHS’s MPP program through at least May 1, 2020. 70. EOIR has implemented many suggestions made by its stakeholders in response to the COVID19 outbreak. For example, it has postponed non-detained hearings and, in practice, differentiated hearings for detained aliens as essential or critical; it has made electronic filing available at every court; it has updated it policies on electronic signatures; and, it has moved further toward a maximized use of VTC and remote methods of hearing cases. 71. On April 7, 2020, EOIR established email boxes for the electronic filing of briefs at the Board similar to the email boxes that were set up to allow for filing by email at every immigration court. Because the Board adjudicates appeals of detained aliens, including appeals of bond decisions by IJs, the same concerns with closing detained courts or postponing detained cases also apply to the Board.
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72. On April 9, 2020, EOIR announced that OCAHO will accept new complaints filed by email. OCAHO otherwise continues to receive filings and adjudicate cases, and I am unaware of any complaints or concerns directed at OCAHO’s continued operations. Notifications
73. EOIR has maintained a social media Twitter account since 2011 and a social media Facebook account since 2013. The current version of EOIR’s website launched in October 2010.
74. EOIR communicates information regarding immigration court operations by placing information on its website and through postings on social media. For each case that is rescheduled, it also provides a new notice of hearing in that case which is mailed to the last address provided by an alien and the alien’s representative, if any.
75. EOIR routinely posts announcements of immigration court closures on social media, in addition to posting that information on its website. For example, between January 28, 2019, and March 1, 2020, EOIR made approximately 150 separate announcements via social media and its website regarding the operational status of immigration courts, including many announcements regarding the closure of courts.
76. Prior to March 2020, I am unaware of any complaints EOIR received or concerns raised to EOIR regarding the manner in which operational announcements were communicated, even for announcements that involved the transfer of hearings and filings to a different immigration court. For example, on August 16, 2019, EOIR announced, through social media and on its website, the indefinite suspension of operations at the immigration court in Louisville, Kentucky, due to building safety conditions and the transfer of cases and filings to the immigration court in Memphis, Tennessee. I am unaware of any complaints that EOIR received
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regarding the adequacy of that announcement or of any confusion or difficulty in having the cases heard at the Memphis Immigration Court. 77. On March 15, 2020, EOIR established a specific web page, EOIR Operational Status During Coronavirus Pandemic (Operational Status website), which it has updated on almost a daily basis with information regarding hearing status, filings, court operations, and standing orders.71 78. In addition to making operational announcements through its website and social media and providing written notice of postponement of hearings, EOIR created a listserv on March 26, 2020, for announcements to practitioners, including announcements of the adoption of standing orders.72 79. Multiple stakeholders, including the organizational Plaintiffs, also frequently retweet, forward, or collect and present information that EOIR announces publicly which further amplifies the dissemination of that information.73 I am aware that Plaintiffs have presented declarations and exhibits indicating that many stakeholders disseminate information EOIR has announced through their own listservs. 80. The three organizational Plaintiff are stakeholders and at least two of them maintain a social media presence, including on Twitter. 81. EOIR has publicly announced through social media and on its website when immigration courts have closed due to an incident related to COVID-19 or as a precautionary measure in situations without a confirmed or verified incident. Federal health and medical privacy laws prevent EOIR from disseminating medical information about particular individuals, including the results of medical tests. Accordingly, EOIR cannot publicly announce the results of an
71 https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic 72 https://www.aila.org/infonet/eoir-sends-message-to-stakeholders-announcing-new 73 https://www.aila.org/recent-postings
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individual’s COVID-19 test, an individual’s diagnosis from a doctor, or the identity of an individual involved in an incident.
Filings and Appearances 82. EOIR has no policy requiring the filing of unclassified documents in person. EOIR’s current
policy is to encourage filings by mail and through electronic means, including through email or through ECAS, where available. 83. EOIR has allowed filing by mail since its inception, and I am unaware of any systemic problem at EOIR regarding filing by the United States Postal Service (USPS) or by a corporate delivery service. The INA’s multiple references to service by mail74 further indicate that mail is deemed to be a generally reliable vehicle for communications to and from an immigration court. Every court system of which I am aware relies on the mail for filings, and most courts of which I am aware are continuing to receive filings by mail. Although there may be individual instances in which mail is not properly delivered to an immigration court, those are redressable through motion practice or legal argument. 84. EOIR has no policy requiring any attorney to appear in any case in person. The method of an attorney’s appearance is subject to the discretion of the IJ. 85. Beginning March 17, 2020, many immigration courts began adopting local operating procedures (LOPs) pursuant to regulation, and many immigration judges began issuing standing orders pursuant to policy. As of April 10, 2020, all immigration judges at 38 immigration courts hearing principally detained cases had adopted LOPs in the form of standing orders. As of the same date, 8 immigration judges hearing principally detained cases had adopted standing orders at courts which have not yet adopted LOPs. Immigration judges
74 8 U.S.C. §§ 1229(a)(2)(A) and (c).
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or immigration courts hearing primarily or exclusively non-detained cases have not generally adopted standing orders or LOPs because non-detained cases are currently postponed through May 1, 2020. 86. Most, if not all, of these LOPs and standing orders allow for the appearance of practitioners by telephone without the need to file a motion. Although a few of them require parties appearing by telephone—meaning both DHS and the alien’s representative, if any—to waive objections to a document on the sole basis that they could not examine the document in person, none of the LOPs or standing orders requires parties generally to waive any rights to object to evidence. 87. All LOPs and standing orders have been posted by EOIR on the website for the relevant court, in the ICPM, and on its Operational Status website.75 Additionally, all LOPs and standing orders have been noted on EOIR’s social media accounts and distributed through its listserv. All of them are designed to protect EOIR employees, aliens, practitioners, and attorneys for DHS while simultaneously maintaining the due process rights for detained aliens.76 88. EOIR does not have the authority to direct IJs on how to rule in their cases. Because IJs exercise independence and discretion in deciding individual cases, neither I nor any employee at EOIR—except a member of the Board adjudicating a case appeal—is authorized to require IJs to deny or grant any particular motion. IJs are expected to adhere to the law, and instances in which a party believes an IJ has failed to follow the law may be redressed through an appeal to the Board, including an emergency interlocutory appeal. I am also not aware of IJs or the Board systematically failing to use sound judgment in consideration of motions filed during the current situation related to COVID-19, especially after March 20, 2020.
75 https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic 76 https://www.justice.gov/eoir/page/file/1259916/download
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89. Because IJs exercise independence and discretion in deciding individual cases, neither I nor any employee at EOIR—except a member of the Board adjudicating a case appeal—is authorized to require IJs to extend or restrict a filing deadline, to excuse or apply the statutory one-year deadline for filing an asylum application, to determine whether an alien has or has not demonstrated extraordinary circumstances warranting the excusal of that deadline, or to require an IJ to excuse or follow any established filing deadline. IJs are expected to adhere to all applicable law and to utilize their discretion appropriately. Instances in which a party believes an IJ has failed to follow the law, including where a party believes an IJ has abused his or her discretion, may be redressed through an appeal to the Board. I am not aware of IJs or the Board systematically failing to use sound judgment in consideration of any of these legal issues during the current situation related to COVID-19, especially after March 20, 2020.
90. EOIR does not control detention facilities maintained, operated, or leased by DHS and, accordingly, has no authority to direct DHS operations regarding who may access, and under what conditions, those facilities. I understand that DHS may have recently imposed additional safeguards on visitors to its facilities and that it may have limited avenues of communications between practitioners and detainees. I am not aware of any motions to continue being filed by Plaintiffs based on these circumstances, nor am I aware of any such motions being denied by IJs due to these circumstances. In general, although neither I nor any EOIR employee possess the authority to direct an IJ how to rule in a particular case, I am not aware of IJs systematically failing to use sound judgment in consideration of motions filed during the current situation related to COVID-19, especially for motions alleging that a practitioner was unable to access a facility where an alien is detained.
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91. In response to an inquiry from a stakeholder received on March 19, 2020, EOIR clarified its policy on signatures for filings on March 31, 2020.77 EOIR will allow the submission of filings with electronic signatures, though the signature may be subject to authentication as warranted by the facts in a particular case. I issued PM 20-11, Filings and Signatures, on April 3, 2020, confirming this updated policy.78 EOIR will also continue to accept original documents containing wet signatures. Any type of signature — wet, digital, or electronic — may be subject to a challenge to its authenticity in immigration proceedings, though EOIR expects that any such challenge will be brought only in good faith.
92. The outbreak of COVID-19 has suspended EOIR’s rollout of its new electronic adjudication system, the EOIR Courts & Appeals System (ECAS), which includes an electronic filing capability. ECAS has already been deployed to 14 courts, and in courts where ECAS has been deployed, filing may be made electronically through that system. In the other courts, filing by mail remains available and encouraged.
93. Immigration courts and judges may authorize the filing of documents by facsimile or email,79 and some LOPs and standing orders are allowing the filing of documents through those means.80 Beginning March 31, 2020, EOIR established court-specific email addresses to be used as temporary electronic failing mailboxes. As of April 9, 2020, 3157 email messages with filings had been received using those addresses.
94. I am aware that several state and local jurisdictions have issued executive orders in response to the COVID-19 situation, though not every state or locality in which an immigration court is present has done so. Although these orders carry different labels and vary considerably in their
77 ICPM, ch. 3.3(b)(i). 78 https://www.justice.gov/eoir/page/file/1266411/download 79 ICPM, ch. 3.1(a)(vii). 80 https://www.justice.gov/eoir/page/file/1263056/download
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specifics, they generally order individuals to limit public interactions to essential tasks. Although the precise definition of “essential” varies greatly among the orders, I am not aware of any state or local order that purports to limit or close the functioning of federal government entities such as EOIR. I am also not aware of any such order that deems court operations or the provision of legal services as non-essential, and I am aware of many orders that expressly state that such services are essential.81 I am also not aware of any such order that considers the mail to be non-essential or that purports to close the operations of the USPS. I am aware that many such orders rely on an advisory list of critical infrastructure workers prepared by DHS’s Cybersecurity and Infrastructure Security Agency (CISA) in their assessments of essential work. I am also aware that CISA includes postal, parcel, and courier services, communications and information technology services, and operations of judicial systems among its list of critical infrastructure services.82 In short, I am not aware of any state or local order that requires EOIR to cease its operations, especially hearings for detained individuals, or that prohibits legal practitioners from working with clients in conjunction with those operations. 95. The law and any EOIR policies on filing and appearances generally apply equally to both parties in an immigration proceeding. Thus, standards for filing deadlines, filings by mail, and continuances apply equally to both aliens and DHS. I am unaware of any IJ treating these issues differently for DHS than for the aliens in immigration proceedings.
Assessment of Plaintiffs’ Assertions 96. I understand Plaintiffs’ claims related to EOIR to be speculative based primarily on isolated
anecdotes related to a small number of EOIR’s 69 immigration courts and adjudication centers. I understand Plaintiffs to not have even alleged any concerns with the vast majority of
81 https://files.nc.gov/governor/documents/files/EO121-Stay-at-Home-Order-3.pdf 82 https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce
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immigration courts hearing detained cases. Although I understand Plaintiffs to have raised various hypothetical scenarios stemming from the COVID-19, I am not aware of any scenario that cannot be addressed by extant law or policy. 97. I am not aware of any IJs or Board members systematically failing to account for the operational challenges posed by the outbreak of COVID-19 in Plaintiffs’ cases or in any other cases. To the contrary, I am aware that Plaintiffs have presented declarations and exhibits indicating that immigration court personnel have been accommodating in light of the current environment—e.g., “I would say our court has been very solicitous in granting telephonic hearings and continuances.”83 and “On March 25, 2020, I received a call from the court clerk asking me to email a motion to continue, an extraordinary request since the immigration courts do not allow electronic filings.”84 98. I understand Plaintiffs formally to seek only the postponement of all in-person hearings before EOIR, but I understand Plaintiffs to appear to mean, instead, the postponement of all non-bond hearings. Thus, I understand Plaintiffs to seek the postponement of all detained hearings— including the postponement of credible fear reviews and merits hearings at which an alien may become eligible for release upon the granting of an application by an IJ—except for bond hearings, which I understand Plaintiffs to seek to be conducted only by VTC or telephone. 99. I also understand Plaintiffs to present declarations and exhibits seeking a variety of remedies different from those sought by Plaintiffs, including the closure of all immigration courts and, thus, the postponement of all hearings. For example, I understand Plaintiffs to seek the postponement of all credible fear reviews for detained aliens, though I am aware that Plaintiffs have presented declarations and exhibits which do not seek such postponements. I also
83 ECF 7-4, ¶ 18. 84 ECF 7-5, ¶ 25.
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understand Plaintiffs to present declarations and exhibits seeking mutually exclusive actions— i.e. closing courts but continuing to hear certain types of cases. 100. EOIR has already adopted a policy of maximizing the use of VTC or a telephone for conducting hearings, especially detained hearings, and it has adopted many of the suggestions put forth in the declarations and exhibits submitted by Plaintiffs. It has declined, however, to cease all hearings for detained aliens. Plaintiffs’ claims, if accepted, would require EOIR to postpone credible fear reviews and other hearings for detained aliens at which the aliens may either orally request bond from an IJ or receive a favorable adjudication on an application from an IJ that would warrant their release from custody. I am not aware of any other court system in the United States completely ceasing to hear cases of detained individuals, nor am I aware of any other lawsuit seeking such cessation from any court system in the United States at the current time. Stopping all detained hearings for an unknown or indefinite amount of time would place EOIR at serious risk of failing to comply with district court orders and circuit court decisions related to hearings for detained aliens, would effectively invalidate various statutory provisions, and would eviscerate the independence and discretion of immigration judges and Board members in their consideration of the individual circumstances of each case. Such a shutdown would further place significant pressure on DHS and HHS to release all aliens in their custody in order to avoid constitutional issues associated with potentially indefinite detention without recourse to a hearing, which would raise additional issues of public safety. Such a shutdown would also cause significant harm to aliens in detention who may utilize their hearings to become amenable to release from detention and to aliens seeking to file motions to reopen or to stay removal.
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Executed on April 13, 2020.

JAMES

Digitally signed by JAMES MCHENRY

MCHENRY Date: 2020.04.13 14:53:49
________________-0_4_'0_0_' ___________

James McHenry

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

EXHIBIT 2

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

EXHIBIT 3

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ERO
U.S. Immigration and Customs Enforcement Enforcement and Removal Operations
COVID-19 Pandemic Response Requirements

ERO COVID-19 Pandemic Response Requirements (Version 1.0, April 10, 2020)

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Table of Contents
PURPOSE AND SCOPE .......................................................................................................................... 3 INTRODUCTION ................................................................................................................................... 3 OBJECTIVES ........................................................................................................................................ 4 CONCEPT OF OPERATIONS................................................................................................................... 5
DEDICATED ICE DETENTION FACILITIES ........................................................................................ 5 NON-DEDICATED ICE DETENTION FACILITIES ............................................................................... 6 ALL FACILITIES HOUSING ICE DETAINEES ..................................................................................... 7
PREPAREDNESS ........................................................................................................................... 7 PREVENTION ............................................................................................................................. 11 MANAGEMENT .......................................................................................................................... 14 ATTACHMENTS ................................................................................................................................. 18

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PURPOSE AND SCOPE
The U.S. Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) Coronavirus Disease 2019 (COVID-19) Pandemic Response Requirements (PRR) sets forth expectations and assists ICE detention facility operators to sustain detention operations, while mitigating risk to the safety and well-being of detainees, staff, contractors, visitors, and stakeholders due to COVID-19. Consistent with ICE’s overall adjustments to its immigration enforcement posture,1 the ERO PRR builds upon previously issued guidance and sets forth specific mandatory requirements expected to be adopted by all detention facilities housing ICE detainees, as well as best practices for such facilities, to ensure that detainees are appropriately housed and that available mitigation measures are implemented during this unprecedented public health crisis. The ERO PRR has been developed in consultation with the Centers for Disease Control and Prevention (CDC) and is a dynamic document that will be updated as additional/revised information and best practices become available.
INTRODUCTION
As the CDC has explained:
COVID-19 is a communicable disease caused by a novel (new) coronavirus, SARSCoV-2, that was first identified as the cause of an outbreak of respiratory illness that began in Wuhan Hubei Province, People’s Republic of China (China).
COVID-19 appears to spread easily and sustainably within communities. The virus is thought to transfer primarily by person-to-person contact through respiratory droplets produced when an infected person coughs or sneezes; it may transfer through contact with surfaces or objects contaminated with these droplets. There is also evidence of asymptomatic transmission, in which an individual infected with COVID-19 is capable of spreading the virus to others before exhibiting symptoms. The ease of transmission presents a risk of a surge in hospitalizations for COVID19, which would reduce available hospital capacity. Such a surge has been identified as a likely contributing factor to the high mortality rate for COVID-19 cases in Italy and China.
Symptoms include fever, cough, and shortness of breath, and typically appear 2-14 days after exposure. Manifestations of severe disease include severe pneumonia, acute respiratory distress syndrome (ARDS), septic shock, and multi-organ failure. According to the [World Health Organization], approximately 3.4% of reported COVID-19 cases have resulted in death globally. This mortality rate is higher among older adults or those with compromised immune systems. Older adults and people who have severe chronic medical conditions like heart, lung or kidney disease are also at higher risk for more serious COVID-19 illness. Early data suggest older people are twice as likely to have serious COVID-19 illness.

1 See, e.g., Attachment A, U.S. Immigration and Customs Enforcement, Updated ICE statement on COVID19 (Mar. 18, 2020), https://www.ice.gov/news/releases/updated-ice-statement-covid-19.

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Notice of Order Under Sections 362 and 365 of the Public Health Service Act Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists, 85 Fed. Reg. 17060 (Mar. 26, 2020) (internal citations omitted).
Given the seriousness and pervasiveness of COVID-19, ICE is taking necessary and prompt measures in response. ICE is providing guidance on the minimum measures required for facilities housing ICE detainees to implement to ensure consistent practices throughout its detention operations and the provision of medical care across the full spectrum of detention facilities to mitigate the spread of COVID-19. The ICE detention standards applicable to all facilities used to house ICE detainees have long required that each such facility have written plans that address the management of infectious and communicable diseases, including, but not limited to, testing, isolation, prevention, treatment, and education. Those requirements include reporting and collaboration with local or state health departments in accordance with state and local laws and recommendations.2 The measures set forth in the PRR, allow ICE personnel and detention providers to properly discharge their obligations under those standards in light of the unique challenges posed by COVID-19.
OBJECTIVES
The ERO PRR is designed to establish consistency across ICE detention facilities by establishing mandatory requirements and best practices all detention facilities housing ICE detainees are expected to follow during the COVID-19 pandemic. Consistent with ICE detention standards, all facilities housing ICE detainees are required to have a COVID-19 mitigation plan that meets the following four objectives:
• To protect employees, contractors, detainees, visitors to the facility, and stakeholders from exposure to the virus;
• To maintain essential functions and services at the facility throughout the pendency of the pandemic;
• To reduce movement and limit interaction of detainees with others outside their assigned housing units, as well as staff and others, and to promote social distancing within housing units; and
• To establish means to monitor, cohort, quarantine, and isolate the sick from the well.3
2 See, e.g., Attachment B, ICE National Detention Standards 2019, Standard 4.3, Medical Care, at II.D.2 (p. 114), https://www.ice.gov/doclib/detention-standards/2019/4_3.pdf; Attachment C, 2011 ICE Performance-Based National Detention Standards (PBNDS), Revised 2016, Standard 4.3, Part V.C.1 (p. 261), https://www.ice.gov/doclib/detentionstandards/2011/4-3.pdf; Attachment D, 2008 ICE PBNDS, Standard 4-22, Medical Care, V.C.1 (pp. 5-6), https://www.ice.gov/doclib/dro/detention-standards/pdf/medical_care.pdf.
3 A cohort is a group of persons with a similar condition grouped or housed together for observation over a period of time. Isolation and quarantine are public health practices used to protect the public from exposure to individuals who have or may have a contagious disease. For purposes of this document, and as defined by the CDC, quarantine as the separation of a person or group of people reasonably believed to have been exposed to a communicable disease but not yet symptomatic, from others who have not been

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CONCEPT OF OPERATIONS
The ERO PRR is intended for use across ICE’s entire detention network, applying to all facilities housing ICE detainees, including ICE-owned Service Processing Centers, facilities operated by private vendors, and facilities operated by local government agencies that have mixed populations of which ICE detainees comprise only a small fraction.
DEDICATED ICE DETENTION FACILITIES
All ICE dedicated detention facilities4 must:
• Comply with the provisions of their relevant ICE contract or service agreement. • Comply with the ICE national detention standards applicable to the facility,
generally the Performance-Based National Detention Standards 2011 (PBNDS 2011). • Comply with the CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Attachment E). • Follow ICE’s March 27, 2020 Memorandum to Detention Wardens and Superintendents on COVID-19 Action Plan Revision 1, and subsequent updates (Attachment F). • Report all confirmed and suspected COVID-19 cases to the local ERO Field Office Director (or designee), Field Medical Coordinator, and local health department immediately. • Notify both the local ERO Field Office Director (or designee) and the Field Medical Coordinator as soon as practicable, but in no case more than 12 hours after identifying any detainee who meets the CDC’s identified populations potentially being at higher-risk for serious illness from COVID-19, including:
o People aged 65 and older o People of all ages with underlying medical conditions, particularly if not well
controlled, including: ▪ People with chronic lung disease or moderate to severe asthma ▪ People who have serious heart conditions ▪ People who are immunocompromised

exposed, to prevent the possible spread of the communicable disease. For purposes of this document, and as defined by the CDC, isolation as the separation of a person or group of people known or reasonably believed to be infected with a communicable disease and potentially infectious from others to prevent the spread of the communicable disease.
4 Dedicated detention facilities are facilities that house only ICE detainees. Dedicated facilities may be ICE-owned Service Processing Centers, privately owned Contract Detention Facilities, or facilities operated by state or local governments that hold no other detention populations except ICE detainees.

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• Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications
▪ People with severe obesity (body mass index [BMI] of 40 or higher) ▪ People with diabetes ▪ People with chronic kidney disease undergoing dialysis ▪ People with liver disease
Notification shall be made via e-mail from the facility’s Health Services Administrator (HSA) (or equivalent) and contain the following subject line for ease of identification: “Notification of COVID-19 High Risk Detainee (A-Number).” At a minimum the HSA will provide the following information:
• Detainee name • Detention location • Current medical issues as well as medications currently prescribed • Facility medical Point of Contact (POC) and phone number
NON-DEDICATED ICE DETENTION FACILITIES
All non-dedicated detention facilities and local jails housing ICE detainees must:
• Comply with the provisions of their relevant ICE contract or service agreement.
• Comply with the ICE national detention standards applicable to the facility, generally PBNDS 2011.
• Comply with the CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities.
• Report all confirmed and suspected COVID-19 cases to the local ERO Field Office Director (or designee), Field Medical Coordinator, and local health department immediately.
• Notify both the ERO Field Office Director (or designee) and Field Medical Coordinator as soon as practicable, but in no case more than 12 hours after identifying any detainee who meets the CDC’s identified populations potentially being at higher-risk for serious illness from COVID-19, including: o People aged 65 and older o People of all ages with underlying medical conditions, particularly if not well controlled, including: ▪ People with chronic lung disease or moderate to severe asthma ▪ People who have serious heart conditions ▪ People who are immunocompromised

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• Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications
▪ People with severe obesity (body mass index [BMI] of 40 or higher) ▪ People with diabetes ▪ People with chronic kidney disease undergoing dialysis ▪ People with liver disease
Notification should be made via e-mail from the facility’s HSA (or equivalent) and should contain the following subject line for ease of identification: “Notification of COVID-19 High Risk Detainee (A-Number).” Other standardized means of communicating this information to ICE are acceptable. At a minimum the HSA will provide the following information:
• Detainee name • Detention location • Current medical issues as well as medications currently prescribed • Facility medical POC and phone number

ALL FACILITIES HOUSING ICE DETAINEES

In addition to the specific measures listed above, all detention facilities housing ICE detainees must also comply with the following:
PREPAREDNESS
Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and detainees about these preparations and how they may temporarily alter daily life.
➢ Develop information-sharing systems with partners.
• Identify points of contact in relevant state, local, tribal, and/or territorial public health department before cases develop.
• Communicate with other correctional and detention facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staff.
➢ Review existing pandemic, influenza, all-hazards, and disaster plans, and revise for COVID-19, and ensure that they meet the requirements of ICE’s detention standards.

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➢ Offer the seasonal influenza vaccine to all detained persons (existing populations and new intakes) and staff throughout the influenza season, where possible.
➢ Staffing
• Review sick leave policies to ensure that staff can stay home when sick and determine which officials will have the authority to send symptomatic staff home. Staff who report for work with symptoms of COVID-19 must be sent home and advised to follow CDC-recommended steps for persons exhibiting COVID-19 symptoms.
• Staff who test positive for COVID-19 must inform their workplace and personal contacts immediately. If a staff member has a confirmed COVID-19 infection, the relevant employers will inform other staff of their possible exposure to COVID-19 in the workplace consistent with any legal limitations on the sharing of such information. Exposed employees must then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
• Identify staff whose duties would allow them to work from home and allow them to work from home in order to promote social distancing and further reduce the risk of COVID-19 transmission.
• Determine minimum levels of staff in all categories required for the facility to function safely.
• Follow the Public Health Recommendations for Community-Related Exposure.5
➢ Supplies
• Ensure that sufficient stocks of hygiene supplies (soap, hand sanitizer, tissues), personal protective equipment (PPE) (to include facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls), and medical supplies (consistent with the healthcare capabilities of the facility) are on hand, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility.
• Note that shortages of N95 respirators are anticipated during the COVID-19 response. Based on local and regional situational analysis of PPE supplies, face masks should be used when the supply chain of N95 respirators cannot meet the demand.
• Follow COVID-19: Strategies for Optimizing the Supply of PPE.6
• Soiled PPE items should be disposed in leak-proof plastic bags that are tied at the top and not re-opened. Bags can be disposed of in the regular solid waste stream.

5 Attachment G, Centers of Disease Control and Prevention, Public Health Recommendations for Community-Related Exposure, https://www.cdc.gov/coronavirus/2019-ncov/php/public-health-recommendations.html (last visited Apr. 9, 2020).
6 Attachment H, Centers for Disease Control and Prevention, Strategies to Optimize the Supply of PPE and Equipment, https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/ (last visited Apr. 9, 2020).

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• Cloth face coverings should be worn by detainees and staff (when PPE supply is limited) to help slow the spread of COVID-19. Cloth face masks should:
• fit snugly but comfortably against the side of the face • be secured with ties or ear loops where possible or securely tied • include multiple layers of fabric • allow for breathing without restriction • be able to be laundered and machine dried without damage or change to shape.
➢ Hygiene
• Reinforce healthy hygiene practices and provide and restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms, common areas, medical, and staff-restricted areas (e.g., break rooms).
• Require all persons within the facility to cover their mouth and nose with their elbow (or ideally with a tissue) rather than with their hand when they cough or sneeze, and to throw all tissues in the trash immediately after use. Provide detainees and staff no-cost access to tissues and no-touch receptacles for disposal.
• Require all persons within the facility to maintain good hand hygiene by regularly washing their hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing their nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage.
• Provide detainees and staff no-cost, unlimited access to supplies for hand cleansing, including liquid soap, running water, hand drying machines or disposable paper towels, and no-touch trash receptacles.
• Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions.
• Require all persons within the facility to avoid touching their eyes, nose, or mouth without cleaning their hands first.
• Post signage throughout the facility reminding detained persons and staff to practice good hand hygiene and cough etiquette (printable materials for community-based settings can be found on the CDC website). Signage must be in English and Spanish, as well as any other common languages for the detainee population at the facility.
• Prohibit sharing of eating utensils, dishes, and cups.
• Prohibit non-essential personal contact such as handshakes, hugs, and high-fives.
➢ Cleaning/Disinfecting Practices

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• Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response.7
• Several times a day using household cleaners and Environmental Protection Agency-registered disinfectants, clean and disinfect surfaces and objects that are frequently touched, especially in common areas (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment). The Environmental Protection Agency’s (EPA) list of certified cleaning products is located here.
• Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs).
• Ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case.
• Facility leadership will ensure that there is adequate oversight and supervision of all individuals responsible for cleaning and disinfecting these areas.
CDC Recommended Cleaning Tips
Hard (Non-porous) Surfaces
• If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection.
• For disinfection, most common EPA-registered household disinfectants should be effective.
o A list of products that are EPA-approved for use against the virus that causes COVID-19 is available here. Follow the manufacturer’s instructions for all cleaning and disinfection products for concentration, application method and contact time, etc.
o Additionally, diluted household bleach solutions (at least 1000ppm sodium hypochlorite) can be used if appropriate for the surface. Follow manufacturer’s instructions for application, ensuring a contact time of at least 1 minute, and allowing proper ventilation during and after application. Check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted. ▪ Prepare a bleach solution by mixing:
• 5 tablespoons (1/3 cup) bleach per gallon of water or • 4 teaspoons bleach per quart of water
Soft (Porous) Surfaces

7 Attachment I, Centers for Disease Control and Prevention, Cleaning and Disinfection for Community Facilities, https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html (last visited Apr. 9, 2020).

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• For soft (porous) surfaces such as carpeted floor, rugs, and drapes, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning:
o If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely.
o Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and that are suitable for porous surfaces.8
Electronics
• For electronics such as tablets, touch screens, keyboards, remote controls, and ATM machines, remove visible contamination if present. o Follow the manufacturer’s instructions for all cleaning and disinfection products.
o Consider use of wipeable covers for electronics.
o If no manufacturer guidance is available, consider the use of alcohol-based wipes or sprays containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids.
Linens, Clothing, and Other Items That Go in the Laundry
• In order to minimize the possibility of dispersing virus through the air, do not shake dirty laundry.
• Wash items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. Dirty laundry that has been in contact with an ill person can be washed with other people’s items.
• Clean and disinfect hampers or other carts for transporting laundry according to guidance above for hard or soft surfaces.
PREVENTION
Detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies.
Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission.

8 Attachment J, U.S. Environmental Protection Agency, List N: Disinfectants for Use Against SARS-CoV-2, https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2 (last visited Apr. 9, 2020).

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➢ Perform pre-intake screening for all staff and new entrants for symptoms of COVID-19.
Screening should take place before staff and new intakes enter the facility or just inside the facility, where practicable. For new admissions, this should occur before beginning the intake process, in order to identify and immediately isolate any detainee with symptoms before the individual comingles with others or is placed in the general population. This should include temperature screening of all staff and new entrants, as well as a verbal symptoms check.
• Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include the following questions based on Interim Guidance: Managing COVID-19 in Correctional/Detention Facilities:
o Today or in the past 24 hours, have you had any of the following symptoms?
▪ Fever, felt feverish, or had chills?
▪ Cough?
▪ Difficulty breathing?
o In the past 14 days, have you had contact with a person known to be infected with COVID-19 where you were not wearing the recommended proper PPE?
• If staff have symptoms of COVID-19 (fever, cough, shortness of breath): they must be denied access to the facility.
• If any new intake has symptoms of COVID-19:
o Require the individual to wear a face mask.
o Ensure that staff interacting with the symptomatic individual wears recommended PPE.
o Isolate the individual and refer to healthcare staff for further evaluation.
o Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective isolation and necessary medical care.
• If an individual is a close contact of a known COVID-19 case or has traveled to an affected area (but has no COVID-19 symptoms), quarantine the individual and monitor for symptoms two times per day for 14 days.
➢ Visitation
• During suspended (social) or modified (legal) visitation programs, provide access to virtual visitation options where available. When not possible, verbally screen all visitors on entry for symptoms of COVID-19 and perform temperature checks, when possible. ICE continues to explore opportunities to enhance attorney access while legal visits are being impacted. For facilities at which immigration hearings are conducted or where detainees are otherwise held who have cases pending immigration proceedings, this may include:

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o Adding all immigration attorneys of record to the Talton Pro-bono platform.
o Requiring facilities to establish a process for detainees/immigration attorneys to schedule appointments and facilitate the calls.
o Leveraging technology (e.g., tablets, smartphones) to facilitate attorney/client communication.
o Working with the various detention contractors and telephone service providers to ensure that all detainees receive some number of free calls per week.
• Communicate with the public about any changes to facility operations, including visitation programs. Facilities are encouraged to prohibit or, at a minimum, significantly adopt restricted visitation programs, and to suspend all volunteer work assignments for detainees assigned to food service, and other assignments where applicable.
➢ Where possible, restrict transfers of detained non-ICE populations to and from other jurisdictions and facilities unless necessary for medical evaluation, isolation/quarantine, clinical care, or extenuating security concerns.
➢ Consider suspending work release programs for inmates at shared facilities to reduce overall risk of introduction and transmission of COVID-19 into the facility.
➢ When feasible and consistent with security priorities, encourage staff to maintain a distance greater than six feet from an individual that appears feverish or ill and/or with respiratory symptoms while interviewing, escorting, or interacting in other ways, unless wearing PPE.
➢ Additional Measures to Facilitate Social Distancing
• Although strict social distancing may not be possible in congregate settings such as detention facilities, all facilities housing ICE detainees should implement the following measures to the extent practicable:
o Efforts should be made to reduce the population to approximately 75% of capacity.
o Where detainee populations are such that such cells are available, to the extent possible, house detainees in individual rooms.
o Recommend that detainees sharing sleeping quarters sleep “head-to-foot.”
o Extend recreation, law library, and meal hours and stagger detainee access to the same in order to limit the number of interactions between detainees from other housing units.
o Staff and detainees should be directed to avoid congregating in groups of 10 or more, employing social distancing strategies at all times.

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o Whenever possible, all staff and detainees should maintain a distance of six feet from one another.
o If practicable, beds in housing units should be rearranged to allow for sufficient separation during sleeping hours.
MANAGEMENT
If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE.
ICE Custody Review for Potentially High-Risk Detainees
Upon being informed of a detainee who may potentially be at higher risk for serious illness from exposure to COVID-19, ERO will review the case to determine whether continued detention is appropriate.9 ICE will make such custody determinations on a case-by-case basis, pursuant to the applicable legal standards, with due consideration of the public health considerations implicated.
➢ Considerable effort should be made to quarantine all new entrants for 14 days before they enter the general population.
• To do this, facilities should consider cohorting daily intakes; two days of new intakes, or multiple days on new intakes, in designated areas prior to placement into the general population. Given the significant variance in facility attributes and characteristics, cohorting options and capabilities will differ across the various detention facilities housing ICE detainees. ICE encourages all facilities to adopt the most effective cohorting methods practicable based on the individual facility characteristics taking into account the number new intakes anticipated per day.
➢ For suspected or confirmed COVID-19 cases:
• Isolate the individual immediately in a separate environment from other individuals. Facilities should make every possible effort to isolate persons individually. Each isolated individual should be assigned his or her own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options. Only individuals who are laboratory-confirmed COVID-19 cases should be isolated as a cohort. Do not cohort confirmed cases with suspected cases or case contacts.
• Ensure that the individual is always wearing a face mask (if it does not restrict breathing) when outside of the isolation space, and whenever another individual
9 Attachment K, Assistant Director Peter Berg, Enforcement and Removal Operations, Updated Guidance: COVID-19 Detained Docket Review (Apr. 4, 2020).

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enters the isolation room. Masks should be changed at least daily, and when visibly soiled or wet.
• If the number of confirmed cases exceeds the number of individual isolation spaces available in the facility, then ICE must be promptly notified so that transfer to other facilities, transfers to hospitals, or release can be coordinated immediately. Until such time as transfer or release is arranged, the facility must be especially mindful of cases that are at higher risk of severe illness from COVID-19. Ideally, ill detainees should not be cohorted with other infected individuals. If cohorting of ill detainees is unavoidable, make all possible accommodations until transfer occurs to prevent transmission of other infectious diseases to the higher-risk individual (For example, allocate more space for a higher-risk individual within a shared isolation room).
• Review the CDC’s preferred method of medically isolating COVID-19 cases here depending on the space available in a particular facility. In order of preference, individuals under medical isolation should be housed:
o Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully.
o Separately, in single cells with solid walls but without solid doors.
o As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above.
o As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above.
o As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.)
o As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above.
• Maintain isolation until all the CDC criteria have been met:
o The individual has been free from fever for 72 hours without the use of fever-reducing medications.
o The individual’s other symptoms have improved (e.g., cough, shortness of breath).
o The individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart.

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o At least 7 days have passed since the date of the individual’s first positive COVID-19 test and he or she has had no subsequent illness.
• Meals should be provided to COVID-19 cases in their isolation rooms. Isolated cases should throw disposable food service items in the trash in their isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items must clean their hands after removing gloves.
• Laundry from a COVID-19 case can be washed with other individuals’ laundry.
o Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard gloves after each use, and clean their hands after handling.
o Do not shake dirty laundry. This will minimize the possibility of dispersing the virus through the air.
o Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
o Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered.

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ATTACHMENT LETTER A B C D
E
F
G
H
I

ATTACHMENTS
DOCUMENT NAME AND CITATION
U.S. Immigration and Customs Enforcement, Updated ICE statement on COVID-19 (Mar. 18, 2020), https://www.ice.gov/news/releases/updated-ice-statement-covid-19.
ICE National Detention Standards 2019, Standard 4.3, Medical Care, https://www.ice.gov/doclib/detention-standards/2019/4_3.pdf.
2011 ICE Performance-Based National Detention Standards, Revised 2016, Standard 4.3, https://www.ice.gov/doclib/detentionstandards/2011/4-3.pdf.
2008 ICE Performance-Based National Detention Standards, Standard 4-22, Medical Care, https://www.ice.gov/doclib/dro/detentionstandards/pdf/medical_care.pdf.
Centers of Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidancecorrectional-detention.pdf.
Memorandum from Executive Associate Director Enrique Lucero, Enforcement and Removal Operations, Memorandum on Coronavirus 2019 (COVID-19) Action Plan, Revision 1 (Mar. 27. 2020).
Centers of Disease Control and Prevention, Public Health Recommendations for Community-Related Exposure, https://www.cdc.gov/coronavirus/2019-ncov/php/public-healthrecommendations.html (last visited Apr. 9, 2020).
Centers for Disease Control and Prevention, Strategies to Optimize the Supply of PPE and Equipment, https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/ (last visited Apr. 9, 2020).
Centers for Disease Control and Prevention, Cleaning and Disinfection for Community Facilities, https://www.cdc.gov/coronavirus/2019ncov/community/organizations/cleaning-disinfection.html (last visited Apr. 9, 2020).

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J

U.S. Environmental Protection Agency, List N: Disinfectants for Use

Against SARS-CoV-2, https://www.epa.gov/pesticide-registration/list-

n-disinfectants-use-against-sars-cov-2 (last visited Apr. 9, 2020).

K

Assistant Director Peter Berg, Enforcement and Removal Operations,

Updated Guidance: COVID-19 Detained Docket Review (Apr. 4,

2020).

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

EXHIBIT 4

Case 1:20-cv-00852-CJN Document 19-5 Filed 04/13/20 Page 2 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al. on their own behalf andon behalf of others similarly situated,

Case No. 1:20-cv-00852

Petitioners-Plaintiffs, v. EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.
Respondents-Defendants. _________________________________________________
DECLARATION OF RUSSELL HOTT
I, Russell Hott, declare the following under 28 U.S.C. § 1746, and state that under penalty of perjury the following is true and correct to the best of my knowledge and belief:
I. Personal Background 1. I am currently employed by the U.S. Department of Homeland Security (DHS),
U.S. Immigration and Customs Enforcement (ICE), Enforcement and Removal Operations (ERO) as the Acting Assistant Director for the Custody Management Division (CMD). I have held this position since February 2020. CMD provides policy and oversight for the administrative custody of ICE’s highly transient and diverse population of immigration detainees. CMD is composed of three divisions led by three Deputy Assistant Directors under my direct supervision: (1) the Alternatives to Detention Division; (2) the Detention Management Division; and (3) the Custody Programs Division.
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2. As the Acting Assistant Director, I am responsible for the effective and proficient performance of these three Divisions and their various units, including the oversight of compliance with ICE’s detention standards and conditions of confinement at ICE detention facilities generally. I am further responsible for managing ICE detention operations efficiently and effectively to provide for the safety, security, and care of an average of about 40,000 detainees daily and roughly 500,000 detainees annually, at approximately 250 facilities nationwide, including three family residential shelters located in Texas and Pennsylvania.
3. From May 2017 to February 2020, I served as the Field Office Director for the Washington, DC ERO Field Office, responsible for the District of Colombia and Virginia. In my role as Field Office Director, I provided operational and policy oversight for ERO’s interior enforcement efforts within the local area of responsibility, spanning 43,000 square miles, three district courts, a cadre of nearly 200 employees, and 1,400 detention beds.
4. I began my career with the U.S. Government as a detention enforcement officer with the former Immigration and Naturalization Service in New York, NY. I advanced through a variety of positions including Immigration Enforcement Agent, Deportation Officer, Instructor at the Federal Law Enforcement Training Center, Supervisory Detention and Deportation Officer, acting Assistant Field Office Director, National Program Manager, Unit Chief, Acting Deputy Chief of Staff for ERO, Chief of Staff for the ICE Deputy Director, Deputy Field Office Director for both the Boston and Washington field offices, Field Office Director, and Acting Deputy Assistant Director.
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II. Overview of ICE ERO 5. ICE is charged with the enforcement of more than 400 federal statutes, and its
mission is to protect the United States from the cross-border crime and illegal immigration that threaten national security and public safety through enforcement of the federal laws governing border control, customs, trade, and immigration. To carry out this mission, ICE focuses on enforcing federal immigration laws, preventing terrorism, and combating transnational criminal threats. As an operational program of ICE, ERO is responsible for the planning, management, and direction of broad programs relating to the supervision, detention, and removal of aliens who are removable from the United States under the U.S. immigration laws.
6. ERO’s mission is to identify, arrest, and remove aliens who present a danger to national security or are a risk to public safety, as well as those who enter the United States illegally or otherwise undermine the integrity of our immigration laws and our border control efforts. CMD is one of six headquarters Divisions. The other five are: Enforcement, Removal, Field Operations, the ICE Health Service Corps (IHSC), and Operations Support.
7. CMD provides policy and oversight for the administrative custody of one of the most highly transient and diverse populations of any correctional or detention system in the world. CMD manages ICE detention operations efficiently and effectively to provide for the safety, security, and care of aliens detained in ICE custody.
8. As a part of my official duties, I am familiar with a complaint filed in National Immigration Project of the National Lawyers Guild. v. Executive Office of Immigration Review, No. 1:20-cv-00852 (D.D.C. filed Mar. 30, 2020),1 in which Plaintiffs seek an order suspending
1 The correct name of the first named Defendant agency is the “Executive Office for Immigration Review.” See www.justice.gov/eoir (accessed April 10, 2020) (emphasis added).
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in-person immigration hearings for detained individuals for the duration of the COVID-19 2 pandemic, providing “robust access alternatives for detained individuals who wish to proceed with their hearings,” guaranteeing “secure and reliable remote communication” between detainees and counsel, and requiring, if personal protective equipment (PPE) is mandated to be worn by detainees and visitors, that the government provide such equipment. I understand that Plaintiffs are also arguing for temporary release from custody in the alternative, should detainees have “inadequate access to alternative means of remote communication” with counsel. I submit this declaration to explain the extensive and continuing actions ICE is already taking to protect detainees in response to this unprecedented pandemic. The information in this declaration is based upon my personal knowledge and experience as a law enforcement officer and on information provided to me in my official capacity. Due to the constantly evolving nature of this crisis, operational realities are fluid with new decisions being required on a regular basis. The information in this declaration is current and accurate as of the time I signed below.
III. ICE Detention Facilities and Practices Nationwide 9. As an operational program of ICE, ERO is responsible for the planning,
management, and direction of broad programs relating to the supervision, detention, and removal of aliens from the United States under the U.S. immigration laws. ERO’s statutory responsibilities include detention of aliens during the pendency of proceedings to determine whether they will be removed from the United States, as well as aliens subject to an administratively final removal order, pending their removal from the United States. The
2 According to the Centers for DiseaseControl and Prevention (CDC), on February 11, 2020 theWorld Health Organization announced an official name for the diseasethat is causing the2019 novel coronavirus outbreak, first identified in Wuhan, China. The new name of this disease is coronavirus disease 2019, abbreviated as COVID-19. In COVID-19, ‘CO’ stands for ‘corona,’ ‘VI’ for ‘virus,’ and ‘D’ for disease. Formerly, this disease was referred to as “2019 novel coronavirus”or “2019-nCoV”. See https://www.cdc.gov/coronavirus/2019ncov/faq.html#Coronavirus-Disease-2019-Basics (accessed April 10, 2020).
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immigration laws also mandate detention of certain categories of aliens, including “arriving aliens” and certain categories of criminal and terrorist aliens.
10. The length of an individual alien’s detention depends on a number of factors, including whether the alien is subject to mandatory detention under the U.S. immigration laws, the duration of any removal proceedings before the Department of Justice’s Executive Office for Immigration Review (EOIR), appeals before the federal courts of appeals, and issues regarding execution of a final removal order. ERO also transfers aliens in its custody for a number of legal and operational purposes such as attendance at immigration court hearings, to facilitate removal, provide for appropriate medical care, and transfers between facilities for other reasons. In Fiscal Year 2019, ICE housed an average daily population of 50,165 aliens nationwide. In Fiscal Year 2020, through April 4, 2020, ICE housed an average daily population of 42,738 nationwide.
11. ICE coordinates the acquisition of detention bed space for removable adult aliens through: (1) Service Processing Centers (SPCs); (2) Contract Detention Facilities (CDFs); and (3) Intergovernmental Service Agreement (IGSA) facilities (collectively, “immigration detention facilities”). SPCs are owned by ICE and staffed by a combination of federal and contract employees. CDFs are owned by private companies that contract directly with the government and are predominantly staffed by contract employees. Dedicated IGSAs can be public facilities or privately owned and can be operated by local governments or private companies operating under contracts with local governments.
12. Many IGSAs house a very small ICE population compared to the local inmate population, while others are almost exclusively committed to housing ICE detainees. Other facilities used by ICE under various contractual arrangements include: facilities used by ICE through a contract awarded by the U.S. Marshals Service (USMS), facilities operated by the
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Federal Bureau of Prisons (BOP), staging facilities for transportation, holding facilities for temporary detention, and hospitals for emergency care, among other types of facilities.
13. ICE used about 30 dedicated (or largely dedicated) immigration detention facilities throughout the United States in Fiscal Year 2019. Of these facilities, 13 were privately operated CDFs that are typically privately owned, housing an average daily population of 9,387 alien detainees; five were SPCs owned by the federal government and privately operated through contractors, housing an average daily population of 3,799 alien detainees; and 14 were dedicated (or largely dedicated) IGSAs, housing an average daily population of 12,635 alien detainees. 3
14. All immigration detention facilities are bound by strict detention standards to ensure that detainees in ICE custody reside in safe, secure and humane environments and under appropriate conditions of confinement. The first of these standards, the National Detention Standards (NDS), was issued in September 2000, to facilitate consistent conditions of confinement, access to legal representation and safe and secure operations across the detention system. In particular, NDS required facilities to allow detainees to meet privately with current or prospective legal representatives and their assistants, as well as with consular representatives.4 The standards established consistency of program operations and management expectations, accountability for compliance and a culture of professionalism.
15. In 2008, ICE revised NDS to more clearly delineate the results or outcomes to be accomplished by adherence to their requirements. The Performance-Based National Detention Standards (PBNDS 2008), developed in coordination with agency stakeholders, prescribe both the expected outcomes of each detention standard and the expected practices required to achieve
3 The remaining averagedaily population (approximately 24,344 alien detainees) was housed in other facilities that are not entirely dedicated to immigration detention, namely: 143 non-dedicated IGSA facilities, 121 facilities under intergovernmental agreements with other federal agencies, and 20 other facilities, such as BOP facilities. 4 https://www.ice.gov/doclib/dro/detention-standards/pdf/visit.pdf (accessed April 10, 2020).
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them. PBNDS 2008 was also designed to improve safety, security and conditions of confinement for detainees. Regarding visitation, PBNDS 2008 maintained and expanded on the provisions in NDS, requiring each facility to permit legal visitation 7 days a week, including holidays, for a minimum of eight hours per day on weekdays and a minimum of four hours per day on weekends and holidays.5 In addition to legal representatives and assistants, interpreters and messengers are also permitted. PBNDS 2008 also expanded and clarified confidentiality provisions, added a requirement for private meeting rooms and confidential exchange of documents, and provides for group legal meetings.
16. The PBNDS was revised in 2011, reflecting ICE's ongoing effort to tailor the conditions of immigration detention to its unique purpose while maintaining a safe and secure detention environment for staff and detainees. In developing the revised standards, ICE incorporated the input of many agency employees and stakeholders, including the perspectives of nongovernmental organizations and ICE field offices. PBNDS 2011 is crafted to improve medical and mental health services, increase access to legal services and religious opportunities, improve communication with detainees with limited English proficiency, improve the process for reporting and responding to complaints, and increase recreation and visitation. PBNDS 2011 was revised in 2016 to ensure consistency with federal legal and regulatory requirements as well as prior ICE policies and policy statements. PBNDS 2011 contains the same visitation policies as PBNDS 2008.6
17. In 2019, ICE issued new National Detention Standards (NDS 2019) for nondedicated facilities which supersede the NDS. These updated, modernized standards focus on ICE’s essential requirements, encourage greater communication between facilities and their local
5 https://www.ice.gov/doclib/dro/detention-standards/pdf/visitation.pdf (accessed April 10, 2020). 6 https://www.ice.gov/doclib/detention-standards/2011/5-7.pdf (accessed April 10, 2020).
7

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ICE field offices, and provide a comprehensive list of circumstances in which such communication is required. Based on ICE’s experience with its state and local law enforcement partners, and the understanding that local practice appropriately covers many requirements that were explicitly enumerated in NDS, NDS 2019 streamlines several prior standards. NDS 2019 also incorporates substantive additions, addressing topics such as medical care, segregation, disability access, sexual assault and abuse prevention and intervention, and language access. NDS 2019 will apply to the approximately 45 IGSA facilities currently operating under the NDS, approximately 35 USMS facilities used by ICE and which ICE inspects against the NDS, as well as approximately 60 facilities (both IGSA and USMS) which do not reach the threshold for ICE annual inspections – generally those with an Average Daily Population of less than 10. These are facilities across the country where ICE’s state and local law enforcement partners successfully manage their own populations under federal, state, and local regulations, and assist ICE with housing immigration detainees to enforce immigration laws and improve national safety and security. Importantly, with this superseding NDS, the visitation requirements applicable to facilities covered by PBNDS 2008 and PBNDS 2011 are now applicable to all facilities.7
18. In addition to adult-only immigration detention facilities, ICE also utilizes three Family Residential Centers (FRCs) located in Texas and Pennsylvania. Visitation standards applicable to these facilities are substantively similar to those referenced above for adult immigration detention facilities.8
IV. NATIONWIDE ICE EFFORTS IN RESPONSE TO COVID-19 19. The health, welfare and safety of ICE detainees is one of the agency’s highest
priorities. Since the initial reports of COVID-19, ICE epidemiologists have been tracking the
7 https://www.ice.gov/doclib/detention-standards/2019/5_5.pdf (accessed April 10, 2020). 8 https://www.ice.gov/doclib/dro/family-residential/pdf/rs_visitation.pdf (accessed April 10, 2020).
8

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outbreak, regularly updating infection prevention and control protocols, and issuing guidance to staff for the screening and management of potential exposure among detainees.
20. ICE continues to adapt and, through daily monitoring of the Centers for Disease Control and Prevention (CDC) website,9 incorporate in its procedures any updates to the CDC’s COVID-19 guidance, which is built upon well-established infectious disease monitoring and management protocols already in use by the agency.
21. On March 13, 2020, social visitation at all immigration detention facilities was suspended indefinitely in order to mitigate the potential transmission of COVID-19. However, legal visitation was permitted to continue, subject to facility-specific determinations that such visitation poses a threat to the safety and security of any given facility. Due to the highly contagious nature of COVID-19, ICE has been encouraging the use of communication services such as teleconferencing, video visitation (e.g. Skype, FaceTime), email, and/or the use of tablets, where possible, in lieu of in-person visitation. Recognizing that the unique nature of some legal consultations requires in-person communication, ICE recommends non-contact visitation to the maximum extent possible. Where requested, and where local conditions allow, contact visitation has been permitted if requested.
22. On March 20, 2020, as the COVID-19 situation continued to evolve, ICE revised the temporary limitation on visitation to add a requirement that all visitors provide and wear PPE when entering any facility, for the protection of detainees, staff, and visitors alike. ICE further announced that legal representatives seeking to enter any immigration detention facility may be subject to additional, enhanced screening procedures. Specific measures taken to prevent the
9 Specifically, ICEclosely follows the CDC’s Interim Guidanceon Management of Coronavirus 2019 (COVID-19) in Correctional and Detention Facilities at https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html, and its general public guidance at https://www.cdc.gov/coronavirus/2019-ncov/index.html.
9

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spread of COVID-19 to residents, staff, and/or visitors may differ from facility to facility, based on varying local conditions and contractual requirements.
23. The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) requires employers to provide PPE to employees who could be exposed to infectious individuals or materials. An ICE-wide acquisition plan is underway to obtain bulk purchases of PPE and coordinate distribution of equipment to agency staff and, as inventory allows, assist medical units in ICE detention facilities that are experiencing a critical reduction in supply. ICE does not have a requirement or expectation to source PPE to the public, including private attorneys or other visitors who have been retained to provide legal services to detainees. While the use of alternate supply chains is being continually explored to obtain PPE, at this time, ICE does not have on hand enough inventory to offer PPE to the public. Due to the global shortage of PPE caused by the crisis,10 ICE must be judicious in utilizing this limited resource. As noted by the CDC, PPE are “critical supplies that must continue to be reserved for healthcare workers and other medical first responders, as recommended by current CDC guidance.”11
24. ICE has been, and will continue to be, committed to ensuring that detainees are always able to communicate with legal representatives. Facilities have been instructed that, should it become necessary to suspend in-person legal visitation, they must ensure detainee communication with legal representatives continues unimpeded by leveraging all available forms of video technology, email, and messaging. ICE will also take steps to facilitate such
10 See https://www.who.int/news-room/detail/03-03-2020-shortage-of-personal-protective-equipment-endangeringhealth-workers-worldwide (accessed April 13, 2020); https://www.fda.gov/medical-devices/personal-protectiveequipment-infection-control/faqs-shortages-surgical-masks-and-gowns (accessed April 13, 2020). 11 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html (accessed April 13, 2020).
10

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communication, in the absence of visitation, through extended access to telephones and other reasonable means.
25. At the onset of COVID-19, ICE consulted with telecommunications service providers to expand access to electronic and phone services during diminished contact visitation. The service providers agreed to provide increased access to telecommunications equipment, free phone and video services, and extended hours where possible. Further, the service providers agreed to provide indigent aliens with regular, unfettered phone access. ERO expounded on the commitments of the service providers and agreed to double the amount of free access to all detainees and purchase additional telecommunications equipment such as mobile tablets enabled with videoconferencing and texting services, where available.
26. Since March 2020, ICE has participated in discussions with service providers and pro bono attorneys to identify possible solutions to increase attorney accessibility through other communication methods. ICE has experienced an outpouring of support from service providers to further expand and build upon existing capabilities. Existing ICE practices, consistent with most other detention and corrections systems, incorporate time limitations to ensure equal access. Beginning on March 27, the ICE detainee telephone system (DTS), provided by Talton Communications at certain dedicated facilities, committed to expanding system capabilities and access, including some free international capabilities that were previously unavailable. This includes providing detainees with a free 15-minute video call or two free 5-minute calls per week. To further enhance accessibility, ICE committed additional funds to double this access, so that detainees have up to two free 15-minute video calls and four free 5-minute voice calls per week. Although specific rules vary by facility, in general if no other detainees are waiting to utilize the equipment (i.e. phone, tablet, or kiosk), the detainee may be permitted to participate in
11

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a cumulative call. Detainees at facilities with DTS may opt to use free calls to speak with their attorneys privately, without monitoring. They may also call families and friends free of charge. Additionally, as of the week of April 12, ICE began providing free 30-minute calls through the DTS to detainees with pending court actions. This access is in addition to the existing pro bono platform. Furthermore, ICE has been working with Talton Communications to install an additional 200 tablets across facilities by April 30, with the possibility of adding another 350 tablets shortly thereafter, to further facilitate all forms of electronic communication. For other facilities, such as non-dedicated IGSAs that have other phone contractors or operations, ICE has been working with those other service providers to provide the same or similar services as those made available on the DTS platform.
27. ICE continues to explore opportunities to enhance attorney access while legal visits are being impacted. For facilities at which immigration hearings are conducted or where detainees are otherwise held who have immigration proceedings pending, this may include options such as adding immigration attorneys to the pro bono communications platform, requiring facilities to establish a process for detainees and/or attorneys to schedule appointments and facilitate the calls, further leveraging the use of technology, and working with the various detention contractors and communications service providers to ensure that all detainees receive a number of free calls per week.
28. With respect to immigration court hearings, on March 18, 2020, ICE requested that EOIR suspend the in-person requirements for detainee appearance before immigration judges in removal proceedings. EOIR committed to considering individual, case-by-case motions for telephonic appearances. As of April 7, 2020, most immigration judges nationwide have standing orders permitting telephonic appearance of the parties, while a few others continue
12

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to consider requests on a case-by-case basis. Additionally, EOIR has made electronic filing available for parties before the immigration courts.12
29. On April 10, 2020, ERO issued COVID-19 Pandemic Response Requirements (PRR), developed in consultation with the CDC, which sets forth expectations and assists ICE detention facility operators to sustain detention operations, while mitigating risk to the safety and well-being of detainees, staff, contractors, visitors, and stakeholders due to COVID-19.13 The PRR builds upon previously-issued guidance and sets forth specific mandatory requirements and best practices on a number of issues, including visitation, for all immigration detention facilities.
30. The continually-evolving nature of the COVID-19 emergency requires ongoing review and frequent adaptation of agency policy. ICE continues to explore all available options to ensure the health and safety of its diverse detained population while also safeguarding important detainee legal rights.
This declaration is based upon my personal and professional knowledge, information obtained from other individuals employed by ICE, and information obtained from various records and systems maintained by DHS. I provide this declaration based on the best of my knowledge, information, belief, and reasonable inquiry for the above captioned case.
Signed on this 13th day of April 2020.
____________________ Russell Hott Acting Assistant Director Custody Management Division ICE Enforcement and Removal Operations
12 https://www.justice.gov/eoir/filing-email (accessed April 10, 2020). 13 https://www.ice.gov/sites/default/files/documents/Document/2020/eroCOVID19responseReqsCleanFacilities.pdf (accessed April 13, 2020).
13

Case 1:20-cv-00852-CJN Document 19-6 Filed 04/13/20 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

EXHIBIT 5

Case 1:20-cv-00852-CJN Document 19-6 Filed 04/13/20 Page 2 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
v.
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,
Defendants.

Civil Action No. 1:20-cv-00852-CJN

DECLARATION OF ACTING CHIEF IMMIGRATION JUDGE CHRISTOPHER A. SANTORO, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

Case 1:20-cv-00852-CJN Document 19-6 Filed 04/13/20 Page 3 of 5
I, Acting Chief Immigration Judge Christopher A. Santoro, declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that my testimony below is true and correct:
1. I am the Acting Chief Immigration Judge for the Office of the Chief Immigration Judge (OCIJ), a component within the Executive Office for Immigration Review (EOIR).
2. I have held this position since June of 2019. 3. Prior to this position, I was appointed as the principal deputy chief immigration judge for
EOIR in May 2018. From February 2018 to May 2018, I served as acting assistant director for Policy at EOIR. From June 2017 through February 2018 I served as EOIR chief of staff. From July 2015 through January 2016, I served as deputy chief immigration judge (acting). From March 2012 through July 2015 I was an assistant chief immigration judge and oversaw operations in 11 immigration courts, new immigration judge training, and intergovernmental and external affairs. 4. As the Acting Chief Immigration Judge for OCIJ, I oversee the management of 67 immigration courts and two adjudication centers across the nation. 5. My testimony in this declaration is based upon my experience serving as the Acting Chief Immigration Judge. 6. EOIR is taking a range of steps to minimize in-person interaction and reduce the risk of spreading COVID-19 to employees, aliens, and practitioners. OCIJ is striving to maximize the use of video-teleconferencing (VTC) and social distancing practices within the immigration courts that continue to conduct in-person hearings and has developed a VTC and social-distancing plan for each of these courts. These plans are tailored to each court’s staffing levels, building space, and local conditions, among other factors. EOIR is continuing to revise and update these plans as circumstances develop and change.
1

Case 1:20-cv-00852-CJN Document 19-6 Filed 04/13/20 Page 4 of 5
7. All immigration courts have the equipment to conduct hearings through VTC. VTC was already commonly used for detained hearings before the COVID-19 pandemic. EOIR conducted almost 35,000 hearings by VTC in the first quarter of FY 2020.1 When conducting hearings by VTC, the immigration judge (IJ), the alien, the Department of Homeland Security (DHS) attorney, the interpreter, and any witness(es) do not need to be present in the same location.2
8. In an effort to maximize social distancing, EOIR has limited hearings to its detained dockets and has expanded its use of VTC. In some detained courts, IJs have relocated to nondetained courts to conduct hearings remotely into the detained court by VTC. Some courts use VTC to connect the IJ in one courtroom to a detainee in a separate courtroom within the same immigration court. And some courts have conducted VTC hearings where the alien appears in DHS space, rather than in an EOIR courtroom.
9. If an alien is represented, the attorney may also appear by telephone if he or she is not in a location with access to VTC, and can do so even if the alien is appearing by VTC. In many courts, prior approval or the filing of a motion for a telephonic appearance is no longer required. Additionally, IJs are not materially limited in the number of phone connections used during a hearing, which also allows for all parties to appear telephonically if necessary. Using a service called OpenVoice, IJs may conference call attorneys, the alien, witnesses, and interpreters from the bench simultaneously. Like with a VTC hearing, none of the individuals need to be in the same location, The technology also allows for the recording of all participants on the court’s digital audio recording system.
1 https://www.justice.gov/eoir/page/file/1117301/download 2 Immigration Court Practice Manual ch. 4.7(b).
2

Case 1:20-cv-00852-CJN Document 19-6 Filed 04/13/20 Page 5 of 5
10. Furthermore, when the alien and counsel appear separately by VTC or telephone, the IJ has the discretion to allow the alien and counsel to confer confidentially in the courtroom. In these cases, the IJ and DHS attorney may leave the courtroom, VTC, or telephone line. However, if a detainee has appeared in the courtroom with a DHS Enforcement and Removal Operations officer, the officer may need to remain with the detainee pursuant to DHS’s procedures.

Executed on April 13, 2020.

CHRISTOPHER

Digitally signed by CHRISTOPHER

SANTORO

SANTORO Date: 2020.04.13 20:31:12 -04'00'

_______________________________

Christopher A. Santoro

Acting Chief Immigration Judge

3

Case 1:20-cv-00852-CJN Document 19-7 Filed 04/13/20 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

EXHIBIT 6

Case 1:20-cv-00852-CJN Document 19-7 Filed 04/13/20 Page 2 of 4
From: To: Cc:
Subject: Date:
Please see the updated guidance below. The previous version of this guidance is

This message is sent from Peter B. Berg, (a)Assistant Director, Field Operations

To:

Field Office Directors and Deputy Field Office Directors

Subject:

COVID-19 Detained Docket Review

Background:

U.S. Immigration and Customs Enforcement (ICE) has taken a number of significant and proactive measures in response to the Coronavims Disease 2019 (COVID-19) pandemic, in order to mitigate the spread of COVID-19 to aliens detained in its custody, its workforce, and stakeholders at its detention facilities. As more becomes known about the vims, ERO will continue to update its practices and guidance in this regard. General ICE COVID-19 guidance is available here and will be updated and supplemented on an ongoing basis.

On March 18, 2020, you were directed to review the cases of aliens detained in your area of responsibility who were over the age of 70 or pregnant to detennine whether continued detention was appropriate. The Centers for Disease Contrnl and Prevention (CDC) has developed a list of categories of individuals identified as potentially being at higher-risk for serious illness from COVID-19. Expanding on that list, ERO has identified the following categories of cases that should be reviewed to re-assess custody:

• Pregnant detainees or those having delivered in the last two weeks • Detainees over 60 years old • Detainees of any age having chronic illnesses which would make them
immune-compromised, including but not limited to: o Blood Disorders o Chronic Kidney Disease o Compromised immune system (e.g., ongoing treatment such as chemotherapy or radiation, received an organ or bone manow transplant, taking high doses of co1iicosteroids or other immunosuppressant medications) o Endocrine disorders

Case 1:20-cv-00852-CJN Document 19-7 Filed 04/13/20 Page 3 of 4
Metabolic disorders Heart disease Lung disease Neurological and neurologic and neurodevelopment conditions
As part of your ongoing application of the CDC’s Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (available here), please identify all cases within your AOR that meet any of the criteria above and validate that list with assistance from IHSC or your Field Medical Coordinator to ensure the conditions listed are still present and do result in the detainee potentially having a higher risk for serious illness from COVID-19. After identifying a case as meeting any of the above criteria, you should review the case to determine whether continued detention remains appropriate in light of the COVID-19 pandemic.
The presence of one of the factors listed above should be considered a significant discretionary factor weighing in favor of release. To be clear, however, it may not always be determinative. Field offices must remain cognizant of the requirements of mandatory detention. Section 236(c) of the Immigration and Nationality Act (INA) mandates the detention of certain categories of criminal and terrorist aliens during the pendency of removal proceedings. Such aliens may not be released in the exercise of discretion during the pendency of removal proceedings even if potentially higher-risk for serious illness from COVID-19. INA § 236(c); 8 C.F.R. § 236.1(c)(1)(i). Such aliens may only be released following a final order issued by an immigration judge, the Board of Immigration Appeals, or a federal court granting the alien relief, dismissing proceedings, or terminating proceedings. Similarly, pursuant to section 241(a)(2), certain criminal and terrorist aliens subject to a final order of removal may not be released during the 90-day removal period even if potentially higher-risk for serious illness from COVID-19. INA § 241(a)(2). For alien’s subject to discretionary detention under section 236(a), please remember that release is prohibited, even if the alien is potentially higher-risk for serious illness from COVID-19, if such release would pose a danger to property or persons. 8 C.F.R. § 236.1(c)(8).
When reviewing cases of alien’s subject to discretionary detention under 236(a), the following must be completed:
Cases involving any arrests or convictions for any crimes that involve risk to the public regardless of the date of arrest or conviction must be reviewed and approved by a Deputy Field Office Director (DFOD) or higher before a determination is made to release.
Examples of crimes that involve a risk to the public include any crime that: involves any form of violence, driving while intoxicated, threatening behaviors, terroristic threats, stalking, domestic violence, harm to a child, or any form of assault or battery. This list is not intended to be

Case 1:20-cv-00852-CJN Document 19-7 Filed 04/13/20 Page 4 of 4
comprehensive. If there is any doubt whether a crime involves risk to the public, consult with your Office of the Principal Legal Advisor (OPLA) field location and your respective Deputy Assistant Director for Domestic Operations before a custody redetermination is completed. You may consider the age of an arrest or conviction as a mitigating or an aggravating factor, but the age of an arrest or a conviction does not automatically outweigh public safety concerns.
With regard to arriving aliens and certain other aliens eligible for consideration of parole from custody, under current circumstances and absent significant adverse factors, the fact that an alien is potentially higher-risk for serious illness from COVID-19, may form the basis for a determination that “continued detention is not in the public interest,” justify release under 8 C.F.R. § 212.5(b) (5).
For other aliens for whom there is discretion to release, field offices remain responsible for articulating individualized custody determinations, taking into consideration the totality of the circumstances presented in the case. The fact that an alien is potentially higher-risk for serious illness from COVID-19 should be considered a factor weighing in favor of release. You may also consider alternatives to detention consistent with ICE ATD policies, if ATD is determined to sufficiently mitigate the risk of flight.
Any releases attributed to reviews of COVID-19 susceptibility shall be documented in the ENFORCE Alien Removal Module (EARM) under Special Class - COVID-19 Chronic Care Release. As previously communicated, these individuals should be placed on ATD if possible.
Please contact your local OPLA field location should you have any questions or concerns regarding your authority to release in any individual case.
For any questions on this guidance, please contact your respective Deputy Assistant Director for Domestic Operations.
Limitation on the Applicability of this Guidance. This message is intended to provide internal guidance to the operational components of U.S. Immigration and Customs Enforcement. It does not, is not intended to, shall not be construed to, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any person in any matter, civil or criminal.

Case 1:20-cv-00852-CJN Document 19-8 Filed 04/13/20 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

EXHIBIT 7

Case 1:20-cv-00852-CJN Document 19-8 Filed 04/13/20 Page 2 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYER GUILD, ET AL. on their own behalf and on behalf of others similarly situated,
Petitioners-Plaintiffs, v. EXECUTIVE OFFICE OF IMMIGRATION REVIEW, ET AL.
Respondents-Defendants. __________________________________________________

Case No. 1:20-cv-00852

DECLARATION OF OFFICER IN CHARGE JASON CILIBERTI
I, Jason Ciliberti, Officer in Charge (OIC), make the following statements under oath and subject to the penalty of perjury:
1. I am employed by U.S. Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), and currently serve as the OIC for the La Palma Correctional Center (LPCC) and Eloy Detention Center (EDC). I was previously the Assistant Field Office Director for the LPCC starting in 2018 until I was promoted to the position of OIC in 2020.
2. I provide this declaration based on my personal knowledge, belief, reasonable inquiry, and information made known to me in my current position.
3. In my current position, I work closely with the Field Medical Coordinator (FMC), who reports to the Medical Case Management Unit. The FMCs serve as medical consultants to the ICE field offices and oversee clinical services at Inter-Governmental Service Agreement (IGSA) facilities that house ICE detainees, including the LPCC.
4. ICE Health Service Corps (IHSC) provides direct medical, dental, and mental health patient care to approximately 15,300 detainees housed at 20 IHSC-staffed facilities throughout the nation, including EDC.
5. IHSC’s FMCs ensure that the provision of medical care by contractors to the ICE detainees within the IGSA facilities meets detention standards, as required by the IGSA contract including LPCC. The FMCs do not provide hands-on care or direct the care within the IGSA facilities but monitor the medical care and services provided by the contract facilities. Medical staff at the contract facilities are directly responsible for medical care at the facility.
1

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6. IHSC comprises a multidisciplinary workforce that consists of U.S. Public Health Service Commissioned Corps (USPHS) officers, federal civil servants, and contract health professionals. The LPCC, as an IGSA facility, employs a multidisciplinary medical workforce that consists of Registered Nurses, Physician assistants, Physicians, medical assistants, Dental Hygienists, Dentists, Psychologists, Psychiatrists, and Nurse Practitioners.
7. Since the onset of reports of Coronavirus Disease 2019 (COVID-19), ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees.
8. In testing for COVID-19, medical staff at the LPCC is also following guidance issued by the Centers for Disease Control (CDC) to safeguard those in its custody and care.
9. Each detainee is screened for disabilities upon admission by a Registered Nurse. Identified disabilities are further evaluated and reasonable accommodations are provided as medically appropriate.
10. For both EDC and LPCC medical staff are screening all detainee intakes when they enter the facilities including travel histories, medical histories and checking body temperatures and have procedures to continue monitoring the populations’ health. Detainees are assessed for fever and respiratory illness, are asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days, and whether they have traveled from or through area(s) with sustained community transmission in the past two weeks. All new arrival detainees are then placed in isolation from the general population and closely observed for 14 days, regardless of their travel or health history.
11. For both EDC and LPCC, those detainees who present symptoms compatible with COVID-19 will be placed in isolation, where they will be tested. If testing is positive, they will remain isolated and treated. In case of any clinical deterioration, they will be referred to a local hospital.
12. In cases of known exposure to a person with confirmed COVID-19, asymptomatic detainees are placed in cohorts with restricted movement for the duration of the most recent incubation period (14 days after most recent exposure to an ill detainee) and are monitored daily for fever and symptoms of respiratory illness. Cohorting is an infectionprevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic. This practice lasts for the duration of the incubation period of 14 days, because individuals with these and other communicable diseases can be contagious before they develop symptoms and can serve as undetected source patients. Those that show onset of fever and/or respiratory illness are referred to a medical provider for evaluation. Cohorting is discontinued when the 14day incubation period completes with no new cases. Per ICE policy, detainees diagnosed with any communicable disease who require isolation are placed in an appropriate setting in accordance with CDC or state and local health department guidelines.
2

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13. LPCC has the following medical capabilities: A clinic staff which manages male detainees and provides daily access to sick calls in a clinical setting, as well as mental health services and the ability to admit patients at the local hospital for medical and mental health care. EDC has the same medical capabilities with the clinic staff managing both male and female detainees.
14. As of 8:00 a.m. on April 13, 2020, LPCC medical staff provided the following information: a. There are currently no laboratory confirmed cases of COVID-19 in the LPCC.
b. Two ICE detainees with prior laboratory confirmed cases of COVID-19 in the LPCC, no longer test positive. There are 98 detainees who are currently cohorted and under daily observation due to exposure to the first confirmed case of COVID-19.
c. There was previously one confirmed case of COVID-19 in the LPCC, who was a new intake. Thanks to ICE’s intake process, he was successfully identified and quarantined at intake and separated from the general population. He was subsequently hospitalized for an unrelated injury/illness and then released from ICE custody.
d. The entire LPCC facility is cohorted until at least April 14, 2020. All detainees are cohorted in their respective housing units with meals being provided in the housing units and no inter-housing unit contact between detainees.
e. The LPCC is not accepting further detainee intakes into the facility until at least April 14, 2020.
15. As of 8:00 a.m. on April 13, 2020, the EDC FMC provided the following information: a. There are zero suspected cases of COVID-19 in the Eloy Detention Center.
b. There are zero confirmed cases of COVID-19 in the Eloy Detention Center.
16. Both EDC and LPCC have populations within its approved capacity and is not overcrowded. EDC has the capacity to house 1,540 detainees and is currently at approximately 65% capacity. LPCC has the capacity to house 3, 240 detainees and is currently at approximately 53% capacity.
17. Both facilities have put in place measures to ensure social distancing wherever possible by: blocking off seats at tables so detainees are not sitting next to each other, satellite
3

Case 1:20-cv-00852-CJN Document 19-8 Filed 04/13/20 Page 5 of 8
feeding1 so the detainees do not congregate in the dining facility, removing sports equipment to discourage group games, and adjusting recreation times so the housing units are not in contact with each other.
18. Both EDC and the LPCC have increased sanitation frequency and provide sanitation supplies as follows: Both facilities provide disinfectant spray, soap, and hot water in every housing unit at the detention center. The administration is encouraging both staff and the detention center general population to use these tools often and liberally.
o Both facilities provide disinfectants to staff and cleaning crews and CDC recommended cleaning and disinfection above and beyond normal activity have been implemented.
o Both facilities clean and disinfect each housing unit between shifts and entire cell blocks on a rotational schedule.
19. The Department of Homeland Security has suspended in person social visitation and facility tours at both facilities. The Department has required that all attorneys, consular officers and legally mandated Congressional visitors wear personal protective equipment (PPE) to include mask, gloves and eye protection. No visitors are permitted to enter without the PPE. ICE does not provide PPE to visitors.
20. The LPCC is utilizing security staff medically trained to conduct temperature screening and health history questionnaires of all staff, visitors and vendors when they enter the facilities including body temperatures.
21. The LPCC medical staff provide education on COVID-19 to staff and detainees to include the importance of hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and requesting to seek medical care if they feel ill. The facilities provide detainees daily access to sick call.
22. The LPCC medical staff has identified housing units for the quarantine of patients who are suspected of or test positive for COVID-19 infection which would be addressed as set forth in paragraphs 9, 10 and 11, supra.
23. In addition to routine custody reviews, ICE has reviewed its detained “at risk population” as identified by the CDC guidelines to determine if detention remains appropriate, considering the detainee’s health, public safety and mandatory detention requirements, and adjusted custody conditions, when appropriate, to protect health, safety and wellbeing of its detainees.
24. Attorney visits and communications are generally governed by the PBNDS.
1 Satellite feeding occurs when the food is prepared at a central location then brought to the detainees in their housing units.
4

Case 1:20-cv-00852-CJN Document 19-8 Filed 04/13/20 Page 6 of 8
25. As described in paragraph 18, both facilities permit in person attorney visits. EDC in person vistiation times are 8:00 a.m. to 5:00 p.m. daily, or at any time outside those hours with coordination with ICE and CoreCivic, with the exception of before and after lights out. LPCC permits in person visitation from 8 a.m. to 5 p.m. Monday through Friday, and 8 a.m. to 12 p.m. Saturdays and Sundays, with flexibility upon request of counsel.
26. All parties involved in the legal visit must have PPE, fill out or respond orally to the "Visitor Screening-COVID-19 Questionnaire" and pass through screening, including temperature scanning, to be allowed to enter the facility.
27. Since the onset of COVID-19 ICE has, and continues, to develop and implement additional mechanisms to provide detainee access to counsel. ICE has collaborated with the local American Immigration Lawyers Association (AILA) chapter to set up email boxes at the facilities for attorneys to get messages to the detainees as follows:
a. LPCC provided email boxes for attorneys to leave a message with CoreCivic to be delivered to the detainee to return the attorney’s call from the telephones in the housing units. These arrangements were communicated to both AILA and the Florence Immigrant Refugee Rights Project (FIRRP).
b. EDC provided email boxes for attorneys to leave a message for their clients with instructions to call the attorney. These arrangements were communicated to both FIRRP and AILA.
28. Generally, detainees making calls out of the housing units of the facilities can do so collect, or by purchasing and using a phone card. Detainees can have anyone load money onto their account, which is accessed by the detainee’s PIN. In collaboration with AILA and FIRRP, ICE has facilitated additional detainee access to phone calls with counsel as follows:
a. At LPCC detainees can schedule a free call with a legal representative from the telephone in visitation. There is an officer present throughout visitation hours who can assist the detainee in making calls. Visitation hours are Monday through Friday 8:00 a.m. to 4:00 p.m. and Saturday and Sunday 8:00 a.m. to 12:00 p.m. There is no limitation placed on the length of the call. This arrangement was communicated to both AILA and FIIRP.
b. Beginning March 18, 2020, EDC instituted an appointment system that allows attorneys the ability to schedule 30-minute telephone calls with their clients on a space available basis from 4:00 p.m. to 6:00 p.m. Monday to Friday in the five private telephone booths used during regular business hours for telephonic asylum interviews. This accommodation provides an additional 20 30-minute slots each afternoon. Attorneys are permitted to block out multiple 30-minute slots on the same night or during the week as needed, pending availability.
5

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29. The telephones in the housing units at both facilities can be accessed at any time, except during counts and lights out.
a. At LPCC available phones for detainees use include: i. Six phones available for use in each of the 24-120 bed pods. ii. Three phones available for use in each of the 12-60 bed pods..
iii. One telephone in visitation.
b. At EDC there are: iv. Five phones for use in each of the 50 bed pods. v. Five phones for use in (Bravo 500 restricted housing). vi. Five phones in 44 (Bravo 600). vii. Five phones in 48 (Echo 600)
viii. Seven phones in 44 (Echo 100 restricted housing -five phones on the wall, two rolling phones).
ix. Five Asylum Pre-Screening Officer (APSO) phone in North Visit.2
30. Facility records indicate: o At 9:11 a.m. on April 6, 2020, Plaintiff Reynaldo Guerrero-Cornejo was given a message to call his attorney with phone number provided. o Since January 3, 2020 Plaintiff Ernesto Rodriguez Cedeno has had 19 official attorney visits, with the four most recent occurring on March 4, March 9, March 11 and March 12, 2020. o Since January 3, 2020, Plaintiff Enrique Napoles Vaillant has had 18 official attorney visits, with the four most recent occurring on March 4, March 9, March 11, and March 12, 2020.
31. No phone calls on the ICE/CoreCivic provided telephones at either facility are monitored or recorded. Phone calls in the housing units in both facilities are normally recorded, except calls with attorneys per PBNDS standards. All detainees are provided instructions on how to complete an unmonitored call to a legal representative, per PBNDS standards.
32. ICE has also collaborated with the FIRRP and posted flyers in the housing units of both facilities prepared by FIRRP advising detainees of FIRRP’s free legal hotline, which the detainees can access as described above. Detainees can call the legal hotline from the phones in the housing units and are one of the free speed dial numbers programmed into the system.
33. There is no video teleconference (VTC) communication option available outside of court for detainees to communicate with attorneys at this time.
34. No removal hearings are presently being conducted at LPCC. Removal hearings are being conducted via VTC at EDC.
2 Although there are 11 APSO phones located in the LPCC facility, they are not being utilized to make calls because of the difficulty of scheduling calls with multiple housing units that cannot have contact with each other due to the positive COVID-19 cases at LPCC.
6

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I declare, under penalty of perjury under 28 U.S.C. § 1746, that the foregoing is true and

correct to the best of my knowledge and belief.

DATED: April 13, 2020

Digitally signed by JASON A
JASON A CILIBERTI CILIBERTI
____________________Da_te_:_20_2_0.0_4_.1_3 _08_:3_0:_45_-_07_'0_0'_

Jason Ciliberti, Officer in Charge

La Palma Correctional Center

Enforcement and Removal Operations

U.S. Immigration and Customs Enforcement

7

Case 1:20-cv-00852-CJN Document 19-9 Filed 04/13/20 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

EXHIBIT 8

Case 1:20-cv-00852-CJN Document 19-9 Filed 04/13/20 Page 2 of 7

Case 1:20-cv-00852-CJN Document 19-9 Filed 04/13/20 Page 3 of 7

Case 1:20-cv-00852-CJN Document 19-9 Filed 04/13/20 Page 4 of 7

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Case 1:20-cv-00852-CJN Document 19-9 Filed 04/13/20 Page 6 of 7

Case 1:20-cv-00852-CJN Document 19-9 Filed 04/13/20 Page 7 of 7

Case 1:20-cv-00852-CJN Document 19-10 Filed 04/13/20 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

EXHIBIT 9

Case 1:20-cv-00852-CJN Document 19-10 Filed 04/13/20 Page 2 of 5

Case 1:20-cv-00852-CJN Document 19-10 Filed 04/13/20 Page 3 of 5

Case 1:20-cv-00852-CJN Document 19-10 Filed 04/13/20 Page 4 of 5

Case 1:20-cv-00852-CJN Document 19-10 Filed 04/13/20 Page 5 of 5

Case 1:20-cv-00852-CJN Document 19-11 Filed 04/13/20 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

EXHIBIT 10

Case 1:20-cv-00852-CJN Document 19-11 Filed 04/13/20 Page 2 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWER GUILD, ET AL. on their own behalf and on behalf of others similarly situated,
Petitioners-Plaintiffs, v. EXECUTIVE OFFICE OF IMMIGRATION REVIEW, ET AL.
Respondents-Defendants.
__________________________________________________

Case No. 1:20-cv-00852

DECLARATION OF OFFICER IN CHARGE JOHN BRETZ
I, John Bretz, make the following statements under oath and subject to the penalty of perjury:
1. I am employed by U.S. Department of Homeland Security, Immigration and Customs Enforcement (ICE), and currently serve as the Officer in Charge, at the Stewart Detention Center. I have held this position since 2019.
2. I provide this declaration based on my personal knowledge, belief, reasonable inquiry, and information obtained from various records, systems, databases, other DHS employees, employees of DHS contract facilities, and information portals maintained and relied upon by DHS in the regular course of business.
3. In my current position, I am the Officer in Charge at the Stewart Detention Center, at the Atlanta Field Office, employed by the U.S. Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE), Enforcement and Removal Operations (ERO). In this capacity, I manage ERO personnel and provide oversight over ERO’s operations at the Stewart Detention Center. I have been employed by the former Immigration and Naturalization Service (INS) and ICE since 1995.

4. ICE Health Service Corps (IHSC) provides direct medical, dental, and mental health patient care to approximately 13,500 detainees housed at 20 IHSC-staffed facilities throughout the nation.

1

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5. IHSC’s FMCs ensure that the provision of medical care by contractors to the ICE detainees within the IGSA facilities meets detention standards, as required by the IGSA contract. The FMCs do not provide hands-on care or direct the care within the IGSAs but monitor the medical care and services provided by the contract facilities. Medical staff at the contract facilities are directly responsible for medical care at the facility.
6. IHSC comprises a multidisciplinary workforce that consists of U.S. Public Health Service Commissioned Corps (USPHS) officers, federal civil servants, and contract health professionals.
7. Since the onset of reports of Coronavirus Disease 2019 (COVID-19), ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees.
8. In testing for COVID-19, IHSC is also following guidance issued by the Centers for Disease Control (CDC) to safeguard those in its custody and care.
9. Each detainee is screened for disabilities upon admission by a qualified healthcare professional. Identified disabilities are further evaluated and reasonable accommodations are provided as medically appropriate.
10. At the facility, during intake medical screenings, detainees are assessed for fever and respiratory illness, are asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days, and whether they have traveled from or through area(s) with sustained community transmission in the past two weeks.
11. The detainee’s responses and the results of these assessments will dictate whether to monitor or isolate the detainee. Those detainees who present symptoms compatible with COVID-19 will be placed in isolation, where they will be tested. If testing is positive, they will remain isolated and treated. In case of any clinical deterioration, they will be referred to a local hospital.
12. In cases of known exposure to a person with confirmed COVID-19, asymptomatic detainees are placed in cohorts with restricted movement for the duration of the most recent incubation period (14 days after most recent exposure to an ill detainee) and are monitored daily for fever and symptoms of respiratory illness. Cohorting is an infection-prevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic. This practice lasts for the duration of the incubation period of 14 days, because individuals with these and other communicable diseases can be contagious before they develop symptoms and can serve as undetected source patients. Those that show onset of fever and/or respiratory illness are referred to a medical provider for evaluation. Cohorting is discontinued when the 14-day incubation period completes with no new cases. Per ICE policy, detainees diagnosed with any communicable disease who require isolation are place in an appropriate setting in accordance with CDC or state and local health department guidelines.
2

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13. Stewart Detention Center has the following medical capabilities:
o The facility, which manages males only, provides daily access to sick calls in a clinical setting, and infirmary and access to specialty services and hospital care.
14. As of 3:20 p.m. on April 13, 2020, IHSC has the following information:
a. There are 42 ICE detainee suspected cases of COVID-19 in the facility who are in cohort on medical observation per CDC guidelines.
b. There are 7 confirmed cases of COVID-19 among ICE detainees in the facility. The 7 confirmed cases are isolated and receiving medical treatment consistent with CDC guidelines. There are 14 confirmed cases of COVID-19 among facility staff. Detainees who may have been exposed through contact with these staff members are in cohort and being monitored per CDC guidelines.
15. The facility has populations within their approved capacities and are not overcrowded. on April 9, 2020, the facility was operating at approximately 55% of that capacity, with only 1,248 ICE detainees present at the facility. Where detainees are housed in a dormitory-style unit, rather than individual two-person cells, detainees are being spread out, particularly those detainees who are in a protective cohort.
16. The facility has increased sanitation frequency and provides sanitation supplies as follows:
• Hand sanitizer units have been installed in all units and throughout the facility. • Sanitary wipes have been made available in all units and throughout the facility and are
available to detainees. During town hall meetings, detainees have been instructed how to safely sanitize common area surfaces they may come into contact with during the day— such as detainee telephones and kiosks—before and after use. • Detainees are permitted access to facility-approved chemicals, soap, and hand sanitizer for personal hygiene and to clean their immediate living areas. Such access is available 24hours a day, seven days a week. • Pump dispensers for HDQ Neutral, a multi-purpose disinfecting antibiotic and antiviral cleaning solution, have been installed in SDC areas for use by individual detainees as well as Voluntary Work Program participants.
17. The facility has suspended in person social visitation and facility tours. In-person attorney visits at the facility occur in secure visitation areas, with a secure divider between the detainee and attorney visitor. Social distancing practices are followed with any in-person attorney visitor. Visitation staff sanitizes legal visitation areas before and after each legal visit. This includes, but is not limited to, wiping down chairs, tables, phones, and other surfaces and equipment using HDQ Neutral disinfectant. In-person attorney visitors must provide their own personal protective equipment (PPE) and submits to screening, including temperature checks and travel/contact history, prior to entering the facility. PPE includes disposable vinyl gloves, N-95 or surgical masks, and eye protection.
3

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18. During the past two weeks, the number attorneys requesting in-person attorney visits with clients detained at SDC has declined substantially. If attorneys do not wish to visit in person, they may have confidential communications with detainees either through the detainee telephone system or through the Video Teleconference (VTC) System. The facility has begun providing expanded hours for VTC appointments, and further has placed additional VTC equipment in the facility, significantly expanding the number of available VTC appointments. These VTC units are also available for use in lieu of detainee physical appearances in immigration court. Detainees can receive messages from attorneys to call them. Detainees can make phone calls to attorneys, collect, with a calling card or to free hotlines. Three-way calling is available upon initiation by the attorney.
19. The facility is screening all staff and vendors when they enter the facilities including body temperatures.
20. The facility is screening all detainee intakes when they enter the facilities including travel histories, medical histories and checking body temperatures and have procedures to continue monitoring the populations’ health.
21. The facility provides education on COVID-19 to staff and detainees to include the importance of hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and requesting to seek medical care if they feel ill. The facilities provide detainees daily access to sick call.
22. The facility has identified housing units for the quarantine of patients who are suspected of or test positive for COVID-19 infection to be addressed as set forth in paragraphs 9, 10 and 11, supra.
23. ICE has reviewed, and continues to review, its detained “at risk population” as identified by the CDC guidelines to determine if detention remains appropriate, considering the detainee’s health, public safety and mandatory detention requirements, and adjusted custody conditions, when appropriate, to protect health, safety and well-being of its detainees.
I declare, under penalty of perjury under 28 U.S.C. § 1746, that the foregoing is true and correct to the best of my knowledge and based on information obtained from other individuals employed by ICE.
DATED: April 13, 2020 _____________________________________ ________________________________
Enforcement and Removal Operations U.S. Immigration and Customs Enforcement
4

Case 1:20-cv-00852-CJN Document 19-12 Filed 04/13/20 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

EXHIBIT 11

Case 1:20-cv-00852-CJN Document 19-12 Filed 04/13/20 Page 2 of 4

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Case 1:20-cv-00852-CJN Document 19-13 Filed 04/13/20 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

EXHIBIT 12

Case 1:20-cv-00852-CJN Document 19-13 Filed 04/13/20 Page 2 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYER GUILD, ET AL. on their own behalf and on behalf of others similarly situated,
Petitioners-Plaintiffs, v. EXECUTIVE OFFICE OF IMMIGRATION REVIEW, ET AL.
Respondents-Defendants. __________________________________________________

Case No. 1:20-cv-00852

DECLARATION OF CHRISTOPHER L. LaBIER
I, Christopher L. LaBier, make the following statements under oath and subject to the penalty of perjury:
1. I am an Assistant Field Office Director with the Detroit Field Office of Enforcement and Removal Operations (ERO), U.S. Department of Homeland Security (DHS) in Columbus, Ohio. I have been employed with ICE, ERO since May 2009, and in my current position since June 2019. In my current position, my duties include oversight of ICE detention facility matters within southern Ohio for the Detroit Field Office area of responsibility.
2. The subject matter of this declaration involves my official duties as an Assistant Field Office Director. I provide this declaration based on my personal knowledge, belief, reasonable inquiry, and information obtained from various records, systems, databases, other DHS employees, employees of DHS contract facilities, and information portals maintained and relied upon by DHS in the regular course of business.
3. In my current position, I work with our ICE Health Service Corps (IHSC), Field Medical Coordinator (FMC) regarding detained chronic care cases and detained cases requiring greater medical care management. The FMCs serve as medical consultants to the ICE field offices and oversee clinical services at Inter-Governmental Service Agreement (IGSA) facilities that house ICE detainees, including the Butler County Jail in Hamilton, Ohio.
4. The Butler County Jail is a state and local law enforcement partner that successfully manages its own populations under federal, state, and local regulations, and assists ICE with housing immigration detainees to enforce immigration laws and improve national
1

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safety and security. Conditions of ICE detention at the Butler County Jail are governed by ICE’s 2019 National Detention Standards for Non-Dedicated Facilities.
5. In preparing this declaration, I have consulted with the IHSC, FMC serving the Detroit Field Office’s area of responsibility throughout Ohio, as well as the Health Services Administrator and the Warden at the Butler County Jail.
6. IHSC provides direct medical, dental, and mental health patient care to approximately 13,500 detainees housed at 20 IHSC-staffed facilities throughout the nation.
7. IHSC’s FMCs ensure that the provision of medical care by contractors to the ICE detainees within the IGSA facilities meets detention standards, as required by the IGSA contract. The FMCs do not provide hands-on care or direct the care within the IGSAs but monitor the medical care and services provided by the contract facilities. Medical staff at the contract facilities are directly responsible for medical care at the facility.
8. IHSC comprises a multidisciplinary workforce that consists of U.S. Public Health Service Commissioned Corps (USPHS) officers, federal civil servants, and contract health professionals.
9. Since the onset of reports of Coronavirus Disease 2019 (COVID-19), ICE epidemiologists have been tracking the outbreak, regularly updating infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among detainees.
10. In testing for COVID-19, IHSC is also following guidance issued by the Centers for Disease Control (CDC) to safeguard those in its custody and care.
11. At the Butler County Jail, each detainee is screened for disabilities upon admission by a paramedic and, if necessary, a licensed Registered Nurse and/or mental health worker. Identified disabilities are further evaluated and reasonable accommodations are provided as medically appropriate.
12. At the Butler County Jail, during intake medical screenings, detainees are assessed for fever and respiratory illness, are asked to confirm if they have had close contact with a person with laboratory-confirmed COVID-19 in the past 14 days, and whether they have traveled from or through area(s) with sustained community transmission in the past two weeks. The Butler County Jail also has procedures to continue monitoring the population’s health.
13. The detainee’s responses and the results of these assessments will dictate whether to monitor or isolate the detainee. Those detainees who present symptoms compatible with COVID-19 will be placed in isolation, where they will be tested. If testing is positive, they will remain isolated and treated. In case of any clinical deterioration, they will be referred to a local hospital.
14. In cases of known exposure to a person with confirmed COVID-19, asymptomatic detainees are placed in cohorts with restricted movement for the duration of the most recent incubation period (14 days after most recent exposure to an ill detainee) and are
2

Case 1:20-cv-00852-CJN Document 19-13 Filed 04/13/20 Page 4 of 6
monitored daily for fever and symptoms of respiratory illness. Cohorting is an infectionprevention strategy which involves housing detainees together who were exposed to a person with an infectious organism but are asymptomatic. This practice lasts for the duration of the incubation period of 14 days, because individuals with these and other communicable diseases can be contagious before they develop symptoms and can serve as undetected source patients. Those that show onset of fever and/or respiratory illness are referred to a medical provider for evaluation. Cohorting is discontinued when the 14day incubation period completes with no new cases. Per ICE policy, detainees diagnosed with any communicable disease who require isolation are place in an appropriate setting in accordance with CDC or state and local health department guidelines.
15. The Butler County Jail, which manages both males and females, provides daily access to sick calls in a clinical setting, has an onsite medical infirmary, and access to specialty services and hospital care through outside vendors. Emergency medical assistance is requested in person to the Corrections Officer on duty.
16. Inmate and detainee housing at the Butler County Jail consists of 10 PODs, each identified by a letter A through K. ICE detainees are primarily housed in C and J PODs. Each POD has separate cells that share a common dayroom and bathroom/shower facilities. Meals are brought into the PODs and now are served in the cells to allow for social distancing.
17. In the event of suspected or confirmed cases of COVID-19, the Butler County Jail cleared a section of H POD, capable of housing 16 inmates, for purposes of quarantine in single cells with approval by the mental health team. Additional sections or PODs can be cleared for quarantine if it becomes necessary.
18. As of 4:30 p.m. on Monday, April 13, 2020, I have been informed that there are zero suspected or confirmed cases of COVID-19 amongst ICE detainees at the Butler County Jail. Amongst the inmate population, however, there is currently one confirmed case of COVID-19; one inmate who was cohorted with the confirmed case during intake (currently asymptomatic, awaiting test results); and 8 additional inmates who have been quarantined in single cells since intake due to their responses to the screening questionnaire and/or the presence of symptoms (including a temperature of 100.4°F) compatible with COVID-19. None of these 10 inmates has had any contact with ICE detainees.
19. The Butler County Jail has a population within its approved capacities and is not overcrowded. The Butler County Jail has a capacity of 848. At present, there are 747 inmates and detainees at the Butler County Jail. Appropriate social distancing is being implemented per CDC guidelines.
20. The Butler County Jail has increased sanitation frequency and provide sanitation supplies as follows:
o The PODs, individual cells, and common areas are currently being disinfected nine times per day with an approved disinfectant.
3

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o Staff is provided with N-95 masks, gowns, Tyvek suits, gloves, hand sanitizer, disinfectants, soap, and water.
o Porters of the PODs, (inmates who are selected and detainees who volunteer to clean common areas), are provided with disinfectant solutions, cleaning disinfectants, gloves, surgical masks, and eye protection.
o Detainees are provided 24-hour access to water, personal soap and hygiene items, and cleaning products and disinfectants to clean their respective living areas. Surgical masks and gloves are also available if requested.
o Jail staff and the general population have been encouraged and directed to use these sanitation supplies often and liberally.
21. The Butler County Jail has suspended all in-person social visitation and facility tours.
22. Attorney visits and communications are generally governed by the 2019 National Detention Standards for Non-Dedicated Facilities. The Butler County Jail currently allows professional visits with ICE detainees as follows:
o Attorneys/legal representatives who bring personal protective equipment (“PPE”), to include surgical or cloth masks, gloves, and protective eyewear, for use during the visit may enter the secure area of the Butler County Jail, after screening, and meet with their client in a private interview room. The Butler County Jail provides surgical masks to the detainees for use during the visit.
o Attorneys/legal representatives who do not bring PPE are limited to noncontact visits via internal closed circuit audio/video equipment which is available for use in the outer lobby.
o Visitation by attorneys/legal representatives is accommodated daily outside meal times (5:00-7:00 a.m., 11:00 a.m.-1:00 p.m., 5:00-7:00 p.m.).
Records reflect that attorneys have continued to visit ICE detainees since these measures have been implemented.
23. ICE detainees may also call attorneys/legal representatives from telephones in the dayroom with a pre-paid phone card, collect, or to free hotlines noted on the List of Pro Bono Legal Service Providers issued by the Cleveland Immigration Court. The timeframe for using the telephones in the dayroom varies depending on the housing unit, but is generally permitted between 7:15-11:00 a.m., 1:00-4:45 p.m., 7:15-11:00 p.m., 12:00-3:15 a.m. daily.
24. The Butler County Jail is screening all staff, vendors, and attorneys/legal representatives, including body temperatures, before they are permitted to enter the secure area of the facility.
25. The Butler County Jail provides education on COVID-19 to staff and detainees to include the importance of hand washing and hand hygiene, covering coughs with the elbow instead of with hands, and requesting to seek medical care if they feel ill. CDC posters have also been placed throughout the facility in both English and Spanish.
4

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26. ICE has reviewed its detained “at risk population” as identified by the CDC guidelines to determine if detention remains appropriate, considering the detainee’s health, public safety and mandatory detention requirements, and adjusted custody conditions, when appropriate, to protect health, safety and well-being of its detainees.

I declare, under penalty of perjury under 28 U.S.C. § 1746, that the foregoing is true and correct to the best of my knowledge and belief.

DATED: April 13, 2020

Digitally signed by Christopher
____C_h_r_is_t_o_p_h_e_r_L_a_B_i_e_r _LD_aaBt_eie:_r20_20_.0_4.1_3_18_:0_7:2_6 _-04_'0_0'__ Christopher L. LaBier Enforcement and Removal Operations U.S. Immigration and Customs Enforcement

5

Case 1:20-cv-00852-CJN Document 19-14 Filed 04/13/20 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

EXHIBIT 13

Case 1:20-cv-00852-CJN Document 19-14 Filed 04/13/20 Page 2 of 5

Case 1:20-cv-00852-CJN Document 19-14 Filed 04/13/20 Page 3 of 5

Case 1:20-cv-00852-CJN Document 19-14 Filed 04/13/20 Page 4 of 5

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Case 1:20-cv-00852-CJN Document 19-15 Filed 04/13/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

EXHIBIT 14

Case 1:20-cv-00852-CJN Document 19-15 Filed 04/13/20 Page 2 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

DECLARATION OF PARALEGAL SPECIALIST

I, ELIZABETH BURGUS, do hereby declare under penalty of perjury that the following

statements are true and correct to the best of my knowledge, information, and belief:

1. I hold the position of Paralegal Specialist in the Office of the General Counsel (“OGC”)

for the Executive Office for Immigration Review (“EOIR”). My duties include, among other

things, reviewing records of proceedings (“ROP”) and EOIR electronic database records for

purposes of confirming case procedural history. I make this declaration in my official capacity.

2. I have performed a query of the EOIR electronic database records related to the

proceedings for ERNEST RODRIGUEZ CEDENO,

. I have reviewed the results of

this query and am familiar with the procedural history of Mr. Rodriguez Cedeno’s proceedings,

which occurred in Tuscon, Arizona, as reflected in the EOIR electronic database records.

1

Case 1:20-cv-00852-CJN Document 19-15 Filed 04/13/20 Page 3 of 3

3. On April 2, 2020, Mr. Rodriguez Cedeno was scheduled to appear for a master calendar hearing before an immigration judge. That hearing was adjourned to August 5, 2020, due to leave of the immigration judge.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

Executed on April 13, 2020

ELIZABETH BURGUS

Digitally signed by ELIZABETH BURGUS Date: 2020.04.13 10:13:46 -04'00'

Elizabeth Burgus Paralegal Specialist, OGC Executive Office for Immigration Review

2

Case 1:20-cv-00852-CJN Document 19-16 Filed 04/13/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

EXHIBIT 15

Case 1:20-cv-00852-CJN Document 19-16 Filed 04/13/20 Page 2 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Civil Action No. 1:20-cv-00852-CJN

Defendants.

DECLARATION OF PARALEGAL SPECIALIST

I, ELIZABETH BURGUS, do hereby declare under penalty of perjury that the following

statements are true and correct to the best of my knowledge, information, and belief:

1. I hold the position of Paralegal Specialist in the Office of the General Counsel (“OGC”)

for the Executive Office for Immigration Review (“EOIR”). My duties include, among other

things, reviewing records of proceedings (“ROP”) and EOIR electronic database records for

purposes of confirming case procedural history. I make this declaration in my official capacity.

2. I have performed a query of the EOIR electronic database records related to the

proceedings for ISRAEL ESTRADA FERNANDEZ,

. I have reviewed the results

of this query and am familiar with the procedural history of Mr. Estrada Fernandez’s proceedings,

which occurred in Eloy, Arizona, as reflected in the EOIR electronic database records.

1

Case 1:20-cv-00852-CJN Document 19-16 Filed 04/13/20 Page 3 of 3

3. On April 2, 2020, Mr. Estrada Fernandez was scheduled to appear for a master calendar hearing before an immigration judge. That hearing was adjourned to April 20, 2020, due to closure of the immigration court.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

Executed on April 13, 2020

ELIZABETH BURGUS

Digitally signed by ELIZABETH BURGUS Date: 2020.04.13 10:12:13 -04'00'

Elizabeth Burgus Paralegal Specialist, OGC Executive Office for Immigration Review

2

Case 1:20-cv-00852-CJN Document 19-17 Filed 04/13/20 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,

Plaintiffs,

v.

Civil Action No. 1:20-cv-00852-CJN

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, et al.,

Defendants.

[PROPOSED] ORDER Upon consideration of the parties’ arguments, as well as the entire record herein, it is hereby ORDERED that Plaintiffs’ Motion for Temporary Restraining Order (ECF No. 7) is DENIED.

SO ORDERED.

DATED:

Hon. Carl J. Nichols United States District Judge

 
 Case 1:20-cv-00852-CJN Document 29 Filed 04/20/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
-against-
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,

Civil Action No. 1:20-cv-00852 (CJN)

Defendants.

MOTION FOR LEAVE TO FILE PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiffs National Immigration Project of the National Lawyers Guild, American Immigration Lawyers Association, Immigration Justice Campaign, Enrique Napoles Vaillant, Ernesto Rodriguez Cedeno, Arlety Aliaga-Cobas, Reynaldo Guerrero-Cornejo, and Roberto Fausto Velasquez Quiala, respectfully seek leave to file the attached supplemental brief and accompanying exhibits (attached as Exhibit A) in support of their Emergency Motion for Temporary Restraining Order.
During the April 15, 2020 hearing on Plaintiffs’ Emergency Motion for Temporary Restraining Order, the Court inquired as to whether in-person immigration hearings were still being scheduled or whether there were any hearings that had not been postponed or suspended. See, e.g., Hr’g Tr. 16:19-24. The Court also requested notification if there was a change in the status of any of the individual Detained Plaintiffs. See id. 75:7-13. To address those inquiries, and otherwise inform the Court of ongoing irreparable injury, Plaintiffs seek leave to file this supplemental brief and accompanying declarations.

Case 1:20-cv-00852-CJN Document 29 Filed 04/20/20 Page 2 of 3

In accordance with Local Civil Rule 7(m), Plaintiffs’ counsel consulted with Defendants’ counsel regarding this motion. Defendants’ counsel advise as follows: “Defendants do not oppose Plaintiffs’ request to update the Court on the statuses of the Individual Plaintiffs, but oppose Plaintiffs’ request to file new factual materials and arguments after the TRO motion has been submitted. If the Court grants Plaintiffs’ request, Defendants respectfully request an opportunity to respond.”

Dated: April 20, 2020 Washington, D.C.

Respectfully submitted,
/s/ Sirine Shebaya Sirine Shebaya (D.C. Bar No. 1019748) Khaled Alrabe (pro hac vice) Amber Qureshi (pro hac vice) Cristina Velez (pro hac vice) NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 (202) 656-4788 sirine@nipnlg.org khaled@nipnlg.org amber@nipnlg.org cristina@nipnlg.org
/s/ Matthew D. Slater Matthew D. Slater (D.C. Bar No. 386986) Elsbeth Bennett (D.C. Bar No. 1021393) CLEARY GOTTLIEB STEEN & HAMILTON LLP 2112 Pennsylvania Avenue, N.W. Washington, D.C. 20037-3229 T: 202-974-1500 F: 202-974-1999 mslater@cgsh.com ebennett@cgsh.com
Jennifer Kennedy Park (pro hac vice) Lina Bensman (pro hac vice) CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, New York 10006 T: 212-225-2000
2

Case 1:20-cv-00852-CJN Document 29 Filed 04/20/20 Page 3 of 3 F: 212-225-3999 jkpark@cgsh.com lbensman@cgsh.com Attorneys for Plaintiffs
3

Case 1:20-cv-00852-CJN Document 29-1 Filed 04/20/20 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
-against-
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,

Civil Action No. 1:20-cv-00852 (CJN)

Defendants.

PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Case 1:20-cv-00852-CJN Document 29-1 Filed 04/20/20 Page 2 of 13 TABLE OF CONTENTS Page
ARGUMENT ..............................................................................................................................2 A. In-Person Proceedings Continue To Be Conducted Despite Objections ................2 B. “Remote” Hearings Often Fail To Protect Health Or Due Process ........................3 C. Update Regarding Individual Plaintiffs ................................................................4 1. Reynaldo Guerrero-Cornejo......................................................................5 2. Enrique Napoles Vaillant..........................................................................6 3. Ernesto Rodriguez Cedeno .......................................................................6 4. Arlety Aliaga-Cobas .................................................................................6 5. Roberto Fausto Velasquez Quiala .............................................................6 D. A Temporary Restraining Order Is Necessary And Warranted..............................7
CONCLUSION ...........................................................................................................................9
i

Case 1:20-cv-00852-CJN Document 29-1 Filed 04/20/20 Page 3 of 13

TABLE OF AUTHORITIES

Page(s)

Other Authorities

Alejandro Lazo, Fear of Coronavirus in Immigrant Detention Leads to Preparation,

Calls for Release, The Wall Street Journal (Mar. 21, 2020) .............................................

7

Executive Office for Immigration Review, Board of Immigration Appeals Practice

Manual (Feb. 20, 2020) ..................................................................................................

1

Liz Robbins, As Coronavirus Spreads, So Does Panic and Confusion at Immigration

Courts Across The U.S., The Appeal (Apr. 3, 2020) ........................................................

4

Megan Towey, Citing coronavirus pandemic, judges and ICE attorneys demand closure

of immigration courts, CBS News (Mar. 25, 2020)..........................................................

8

U.S. Immigrations and Customs Enforcement, ICE Guidance on COVID-19, https://www.ice.gov/coronavirus (accessed Apr. 19, 2020).............................................. 5, 6

WKTN, Gov. DeWine’s COVID-19 Update: Recovery Phase, Inmate Testing (Apr. 17,

2020) ..............................................................................................................................

8

ii

Case 1:20-cv-00852-CJN Document 29-1 Filed 04/20/20 Page 4 of 13
Plaintiffs respectfully submit this supplemental brief to bring to the Court’s attention new evidence that denials of motions for continuance are ongoing, including in cases where a hearing participant had tested positive for COVID-19. Indeed, on April 15, as this Court was being assured by Defendants that its concern about such denials was entirely hypothetical, see Hr’g Tr. 39:12-13, a detained person who had tested positive for COVID-19 was denied a request for continuance of a hearing scheduled for April 16. As a result, the individual was required to attend a two-hour hearing on April 16, during which the guard accompanying him informed the immigration judge that the individual was too sick even to state his name. Right after the hearing, he was hospitalized, and he is now in intensive care. See Ex. 55, Semino Decl. ¶¶ 6-10.1
As the Court pointedly ascertained in the April 15 hearing, such denials of a continuance create an injury for which there is no remedy. See Hr’g Tr. 38:6-42:13. Even setting aside that the immigration system does not provide a viable means of interlocutory review,2 interlocutory review could not provide a remedy for the harm to the health of the detained person or to others who are required to participate in such proceedings, or who later come into contact with the participants. This risk goes beyond outright denials – requests for continuances often go unaddressed, so that counsel must appear in court, even when continuances are ultimately granted, irreparably risking the health of all concerned as fully as if the request had been denied.
1 Although this hearing was nominally “remote,” the detained person’s participation caused him to be transported out of quarantine and to expose at a minimum one guard unnecessarily. 2 Executive Office for Immigration Review, Board of Immigration Appeals Practice Manual (Feb. 20, 2020), https://www.justice.gov/eoir/page/file/1250701/download (“(c) Scope of interlocutory appeals. – The Board does not normally entertain interlocutory appeals and generally limits interlocutory appeals to instances involving either important jurisdictional questions regarding the administration of the immigration laws or recurring questions in the handling of cases by Immigration Judges. See Matter of K-, 20 I&N Dec. 418 (BIA 1991).”).
1

Case 1:20-cv-00852-CJN Document 29-1 Filed 04/20/20 Page 5 of 13
This supplemental brief accordingly presents additional evidence of this ongoing
irreparable injury and summarizes the evidence already in the record that demonstrates a pattern
of activity and injury that necessitates this Court’s intervention. In addition, at the Court’s
direction, this brief provides updates as to the circumstances of the individual Detained
Plaintiffs.
ARGUMENT
A. In-Person Proceedings Continue To Be Conducted Despite Objections
The record in this case, as well as additional declarations filed with this supplemental
brief,3 demonstrate that in-person hearings continue to take place for a variety of reasons,
including because:
• Courts deny or fail to timely respond to requests for continuances, such that counsel, detained persons, witnesses, or others must appear in person and commingle with other people before they learn that the hearing has been or will be adjourned.
o Ex. 9, Terezakis Decl. ¶¶ 32-33 o Ex. 31, Steiner Decl. ¶¶ 5, 10 o Ex. 35, Boyle Decl. ¶¶ 7-8 o Ex. 55, Semino Decl. ¶¶ 5-7
• Courts deny or fail to timely respond to requests to participate by telephone in what is otherwise an in-person proceeding, such that counsel, detained persons, witnesses, or others must appear in person and commingle with other people.
o Ex. 3, Church Decl. ¶ 11 o Ex. 9, Terezakis Decl. ¶¶ 36-41 o Ex. 31, Steiner Decl. ¶ 10 o Ex. 51, Beckett Decl. ¶¶ 4-6 o Ex. 52, Stump Decl. ¶¶ 5-8
3 Plaintiffs are submitting additional declarations from practitioners describing recent events. Ex. 51, Beckett Decl.; Ex. 52, Stump Decl.; Ex. 53, Hartnett Decl.; Ex. 54, Edstrom Supp. Decl.; Ex. 55, Semino Decl.; Ex. 56, Lopez Supp. Decl.; Ex. 58, Sud-Devaraj Supp. Decl.; Ex. 60, Decl. Summary Chart. Plaintiffs are also submitting supplemental declarations on behalf of Organizational Plaintiffs AILA, NIPNLG, and IJC to explain which of the new declarants are members of the Organizational Plaintiffs. Ex. 57, Tolchin Supp. Decl.; Ex. 59, Voigt Second Supp. Decl.; Ex. 61, Greenstein Supp. Decl.
2

Case 1:20-cv-00852-CJN Document 29-1 Filed 04/20/20 Page 6 of 13
o Ex. 53, Hartnett Decl. ¶¶ 4-6 In addition to causing some or all of the participants in a proceeding to come together in person despite objection, these immigration court actions frequently result in other limitations of the right to counsel or due process rights. These include the inability to obtain evidence due to the COVID-19 pandemic, and the exclusion of a necessary person from participating in the proceeding. See, e.g., Ex. 54, Edstrom Supp. Decl. ¶ 3-4; Ex. 35, Boyle Decl. ¶¶ 7-10. Examples of these in the record (including the new declarations) are catalogued in the accompanying table. See Ex. 60. B. “Remote” Hearings Often Fail To Protect Health Or Due Process While Defendants emphasized that individual judges have discretion to conduct hearings remotely by video-teleconference (“VTC”) or telephone conference, the evidence summarized above demonstrates that the availability of discretion, without clear direction to exercise it, is insufficient to prevent irreparable injury. Further, the use of such hearings does not eliminate the harms to health and to the right to counsel that underlie the need for a temporary restraining order. As noted above, a nominally remote hearing occurred – over the detained person’s objection – on April 16, but this “remote” hearing was not, and could not have been, conducted safely and in accordance with due process. In this case, the detained person’s lawyer learned that the detained person was ill and being tested for COVID-19, and she filed a motion for a continuance on April 14. She also noted that she had not had access to her client to prepare for the hearing due to COVID-19 conditions, thereby depriving him of his right to counsel. After learning of her client’s positive diagnosis of COVID-19, the lawyer supplemented the motion for a continuance on April 15, noting the positive diagnosis and her client’s weak health condition. Notwithstanding this motion, her client was forced to travel through the detention center to appear by VTC for his hearing, accompanied by at least one ICE employee. The hearing
3

Case 1:20-cv-00852-CJN Document 29-1 Filed 04/20/20 Page 7 of 13
proceeded to consider the detained person’s application for a T visa (a form of relief available to victims of human trafficking). After proceeding with the hearing for two hours (without the benefit of meaningful participation by the detained person, who was too ill to speak), the judge finally adjourned it and set it to continue as soon as next week, and even that short delay was due to the judge’s inability to set it sooner. See Ex. 55, Semino Decl. ¶¶ 5-9. This incident exemplifies the risk to health and right to counsel even in nominally remote hearings.
In addition, immigration courts and detention facilities frequently do not have the capacity to connect all necessary parties remotely. This results in critical participants either being required to gather in common locations and/or being excluded altogether. See, e.g., Ex. 52, Stump Decl. ¶¶ 5-7; Ex. 54, Edstrom Supp. Decl. ¶¶ 3-4; Ex. 38, Bennion Decl. ¶¶ 2-3; Ex. 22, Hollithorn Decl. ¶ 13. There are also numerous examples in the record of attorneys being prepared to appear telephonically, but never receiving calls at the appointed time. See, e.g., Ex. 36, Green Decl. ¶¶ 4-6; Ex. 39, Ford Decl. ¶ 5.
Examples of these injuries in the record are also summarized in the accompanying table. See Ex. 60.4
C. Update Regarding Individual Plaintiffs As requested by the Court at the April 15 hearing, the following update is provided concerning the individual plaintiffs.
4 Defense attorneys are not the only participants worried about their ability to zealously represent their clients in the face of COVID-19. Attorneys for Defendant ICE have reported to their union president that “not enough documents were available online to do a ‘credible job of representing the government.’” Liz Robbins, As Coronavirus Spreads, So Does Panic and Confusion at Immigration Courts Across The U.S., The Appeal (Apr. 3, 2020), https://theappeal.org/ascoronavirus-spreads-so-does-panic-and-confusion-at-immigration-courts-across-the-u-s/.
4

Case 1:20-cv-00852-CJN Document 29-1 Filed 04/20/20 Page 8 of 13
1. Reynaldo Guerrero-Cornejo Mr. Guerrero-Cornejo continues to be detained at La Palma Detention Center in Eloy, Arizona. ICE currently reports that there are 6 confirmed cases of COVID-19 at La Palma.5 His individual hearing on the merits is scheduled to proceed on April 24, 2020. His attorney is atrisk for more serious complications from COVID-19 and cannot participate in an in-person hearing. To adequately represent Mr. Guerrero-Cornejo, his attorney would at a minimum require appearing by VTC, but that is not an option for the April 24 hearing, because to do so she would need to travel to either the Tucson Immigration Court or the detention center, neither of which she can do. Ex. 58, Sud-Devaraj Supp. Decl. ¶¶ 4-6. While the details of the April 24 hearing are still being arranged, she expects that: (1) the Immigration Judge and the interpreter will be together in one room at the Tucson Immigration Court and participate via VTC; (2) Mr. Guerrero-Cornejo will participate via VTC from the La Palma Correctional Center; (3) the DHS attorney will likely participate via VTC; (4) the attorney will appear telephonically; and (5) witnesses supporting Mr. Guerrero-Cornejo will have to participate in-person at the Tucson Immigration Court, which is more than a three-hour drive from where they reside. Id. ¶ 7. The attorney is very concerned that she will not be able to see her client while he is being questioned because she cannot participate by VTC.
I will be unable to judge from his body language and facial expressions whether he understands the questions posed to him, whether he is getting overwhelmed during cross-examination, whether he needs a break from the questioning, etc. Typically, I am able to gauge this information when a hearing is conducted in-person. For instance, when I am able to see my client during a hearing, I can tell when my client is not understanding a question or not following what the interpreter is saying. In that sort of scenario, I would normally request that the DHS attorney rephrase the question or I would rephrase any of my questions. By appearing telephonically, I will be unable
5 U.S. Immigrations and Customs Enforcement, ICE Guidance on COVID-19, https://www.ice.gov/coronavirus (accessed Apr. 19, 2020).
5

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to fully and adequately represent Mr. Guerrero-Cornejo during his upcoming hearing. Id. ¶ 8. The attorney, an AILA member, joined to support the TRO in this case in hopes that it would be granted in time to enable her to participate more fully in representing her client in the hearing, without having to put her life and health at risk. 2. Enrique Napoles Vaillant Mr. Vaillant continues to be detained at La Palma Detention Center in Eloy, Arizona, where there are at least 6 confirmed cases of COVID-19. His individual hearing on his asylum claim is scheduled for June 22, 2020. He still does not have counsel. 3. Ernesto Rodriguez Cedeno Mr. Cedeno continues to be detained at La Palma Detention Center in Eloy, Arizona, where there are at least 6 confirmed cases of COVID-19. After Mr. Cedeno’s motion to continue was denied, his April 2 hearing ultimately was rescheduled to August 5, 2020. This fortuitous outcome, however, was only a result of EOIR’s sua sponte rescheduling due to judge unavailability. Mr. Cedeno still does not have counsel. 4. Arlety Aliaga-Cobas Ms. Aliaga-Cobas continues to be detained at Eloy Detention Center in Eloy, Arizona. Her individual hearing on her asylum claim is scheduled for June 2, 2020. She still does not have counsel. 5. Roberto Fausto Velasquez Quiala Mr. Quiala continues to be detained at Pine Prairie ICE Processing Center in Pine Prairie, Louisiana. ICE currently reports that there are 4 confirmed cases of COVID-19 at Pine Prairie.6
6 U.S. Immigrations and Customs Enforcement, ICE Guidance on COVID-19, https://www.ice.gov/coronavirus (accessed Apr. 19, 2020).
6

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Mr. Quiala’s individual hearing is scheduled for May 19, 2020. Mr. Quiala’s attorney has attested to how the constraints on remote access to communicate with individuals detained at Pine Prairie have caused him to struggle to communicate with Mr. Quiala. Ex. 4, Lopez Decl. ¶¶ 5-8; Ex. 56, Lopez Supp. Decl. ¶¶ 4-5.
D. A Temporary Restraining Order Is Necessary And Warranted To avoid irreparable injury and to promote the public interest, in-person proceedings for detained individuals must be stopped during the public health emergency caused by the COVID19 pandemic, and related continuances granted as of right. Consistent with the evidence previously presented and summarized above, immigration judges have likewise encountered an approach by EOIR that “has been marked by a chaotic, inconsistent and confusing series of pronouncements—some by order, some by memo, some by email, and some by Tweet . . . that are not based on conditions in the surrounding communities.” Former Judges Br. at 3, ECF No. 20. The result is that “EOIR and therefore the immigration court system itself, has sacrificed due process in favor of rapid removals, leaving the court without any incentive at all to plan to protect the public health or the individuals and participants in the system.” Id. at 2-3. Government prosecutors are likewise concerned for their health and support an end to in-person hearings. The head of the American Federation of Government Employees Local 511, which represents ICE attorneys, publicly stated that “[a]ll of the attorneys . . . in our agency, they are scared to death.”7 Other members of the union have also criticized Defendants’ agency actions,
7 Alejandro Lazo, Fear of Coronavirus in Immigrant Detention Leads to Preparation, Calls for Release, The Wall Street Journal (Mar. 21, 2020), https://www.wsj.com/articles/fear-ofcoronavirus-in-immigrant-detention-leads-to-preparation-calls-for-release-11584810004.
7

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calling the decision to keep immigration courts open “absolutely outrageous” and a “conscious disregard for human life and safety.”8
This is a national problem stemming from Defendants’ actions to decline to set national standards.9 In these circumstances, it is entirely appropriate for the Court to require Defendants
to exercise their authority to supervise the national system of immigration court and detention
facilities. It is not realistic or consistent with basic notions of due process to instead require
individual detained persons or their counsel to deal with these risks on a one-off basis in a game
of whack-a-mole all over the country. This is especially the case when the record shows that
Defendants can and do move detained persons around the country, far from where their counsel are located.10
Defendants have it within their power to bring order to the chaos by adopting clear
statements that a request for continuance of a hearing based on COVID-19 shall be deemed
granted upon filing. They also have the ability to require that remote hearings must proceed in a
8 Megan Towey, Citing coronavirus pandemic, judges and ICE attorneys demand closure of immigration courts, CBS News (Mar. 25, 2020), https://www.cbsnews.com/news/citingcoronavirus-pandemic-judges-and-ice-attorneys-demand-closure-of-immigration-courts/ 9 Because detained persons are moved around the country and counsel may be in states far from the detention center, these are not solely localized issues. Likewise, because of the risk of transmission by asymptomatic or presymptomatic carriers, the absence of formal diagnoses of COVID-19 infection in a particular facility is not a reason to refuse minimum national guidance as is sought by this motion. For example, on Friday, April 17, Governor DeWine of Ohio reported that testing by the Ohio Department of Health in the population of a single correctional facility found high levels of COVID-19 infection among “individuals who otherwise are asymptomatic or would recover without a test. For example, the testing of one prison dorm in Marion found that out of 152 inmates, 39 percent tested positive for COVID-19 although they did not show any symptoms.” WKTN, Gov. DeWine’s COVID-19 Update: Recovery Phase, Inmate Testing (Apr. 17, 2020), https://wktn.com/gov-dewines-covid-19-update-recovery-phaseinmate-testing. 10 Ex. 51, Beckett Decl. ¶¶ 1, 3-4; Ex. 53, Hartnett Decl. ¶¶ 1-3, 7-8; Ex. 49, Durham Decl. ¶ 4.
8

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manner that respects the right to counsel and due process by ensuring that all necessary participants may in fact participate meaningfully, rather than (as is the case now) dropping witnesses or interpreters because the court’s system does not accommodate more than a minimal number of remote participants.11 Their decision not to adopt such minimum standards (or to refuse to do so) constitutes agency action that the Court may set aside as arbitrary and capricious, or unlawfully withheld.
The Court need not find that Defendants have acted in bad faith – Plaintiffs make no such claim. Nor must the Court disregard the presumption of regularity of agency action, as Defendants contend. The agency action (or refusal to act) at issue is that of Defendants, not those of individual immigration judges or individual facilities. As to that action (or refusal to act), the Court is compelled to find, based on the uncontroverted evidence in the record of this case, that it has resulted in irreparable injury and presents an imminent and ongoing risk of irreparable injury to members of Organizational Plaintiffs and to Detained Plaintiffs for which the Court may afford relief in the form of a temporary restraining order.
CONCLUSION For the foregoing reasons, and those set forth in the record of proceedings to date, this Court should GRANT Plaintiffs’ Motion for a Temporary Restraining Order to prevent imminent
11 For example, in a typical “remote” hearing (a) the immigration judge and interpreter will likely appear together by VTC from the immigration court, (b) the government attorney may appear by VTC from a separate location, (c) the detained person’s attorney will likely appear by telephone from a separate location, and (d) witnesses, if they are permitted at all, are likely required to appear at the courthouse, either by VTC in a separate courtroom or in the same room as the judge. See Ex. 58, Sud-Devaraj Supp. Decl. ¶ 7; Ex. 54, Edstrom Supp. Decl. ¶ 4; Ex. 52. Stump Decl. ¶ 4.
9

Case 1:20-cv-00852-CJN Document 29-1 Filed 04/20/20 Page 13 of 13

and ongoing risk of irreparable injury, which is supported by the likelihood of success on the merits, the absence of injury to Defendants, and the public interest.

Dated: April 20, 2020 Washington, D.C.

Respectfully submitted,
/s/ Sirine Shebaya Sirine Shebaya (D.C. Bar No. 1019748) Khaled Alrabe (pro hac vice) Amber Qureshi (pro hac vice) Cristina Velez (pro hac vice) NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 (202) 656-4788 sirine@nipnlg.org khaled@nipnlg.org amber@nipnlg.org cristina@nipnlg.org

/s/ Matthew D. Slater Matthew D. Slater (D.C. Bar No. 386986) Elsbeth Bennett (D.C. Bar No. 1021393) CLEARY GOTTLIEB STEEN & HAMILTON LLP 2112 Pennsylvania Avenue, N.W. Washington, D.C. 20037-3229 T: 202-974-1500 F: 202-974-1999 mslater@cgsh.com ebennett@cgsh.com
Jennifer Kennedy Park (pro hac vice) Lina Bensman (pro hac vice) CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, New York 10006 T: 212-225-2000 F: 212-225-3999 jkpark@cgsh.com lbensman@cgsh.com
Attorneys for Plaintiffs

10

Case 1:20-cv-00852-CJN Document 29-2 Filed 04/20/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
-against-
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,

Civil Action No. 1:20-cv-00852 (CJN)

Defendants.

DECLARATION OF MATTHEW D. SLATER I, Matthew D. Slater, pursuant to 28 U.S.C. § 1746, declare and state as follows: 1. I am an attorney admitted to practice before this Court and a partner of the law firm Cleary Gottlieb Steen & Hamilton LLP, counsel for National Immigration Project of the National Lawyers Guild, American Immigration Lawyers Association, Immigration Justice Campaign, Enrique Napoles Vaillant, Ernesto Rodriguez Cedeno, Arlety Aliaga-Cobas, Reynaldo GuerreroCornejo, and Roberto Fausto Velasquez Quiala. I submit this declaration in support of Plaintiffs’ Supplemental Brief In Support Of Emergency Motion For Temporary Restraining Order, dated April 20, 2020. 2. Attached as Exhibit 51 to this declaration is a true and correct copy of the declaration of Eduardo Beckett, dated April 18, 2020. 3. Attached as Exhibit 52 to this declaration is a true and correct copy of the declaration of Kelli Stump, dated April 19, 2020. 4. Attached as Exhibit 53 to this declaration is a true and correct copy of the declaration of Matthew Hartnett, dated April 18, 2020.

Case 1:20-cv-00852-CJN Document 29-2 Filed 04/20/20 Page 2 of 2
5. Attached as Exhibit 54 to this declaration is a true and correct copy of the declaration of Michelle Edstrom, dated April 17, 2020.
6. Attached as Exhibit 55 to this declaration is a true and correct copy of the declaration of Veronica Semino, dated April 18, 2020.
7. Attached as Exhibit 56 to this declaration is a true and correct copy of the declaration of Homero López, dated April 19, 2020.
8. Attached as Exhibit 57 to this declaration is a true and correct copy of the declaration of Stacy Tolchin on behalf of the National Immigration Project of the National Lawyers Guild, dated April 19, 2020.
9. Attached as Exhibit 58 to this declaration is a true and correct copy of the declaration of Monika Sud-Devaraj, dated April 19, 2020.
10. Attached as Exhibit 59 to this declaration is a true and correct copy of the declaration of Kate Voigt on behalf of the American Immigration Lawyers Association, dated April 19, 2020.
11. Attached as Exhibit 60 to this declaration is a true and correct copy of a declaration summary chart.
12. Attached as Exhibit 61 to this declaration is a true and correct copy of the declaration of Ilana Etkin Greenstein on behalf of the Immigration Justice Campaign, dated April 19, 2020.
I declare under penalty of perjury that the foregoing is true and correct. Executed on April 20, 2020 in Bethesda, Maryland.
______________________ Matthew D. Slater -2-

Case 1:20-cv-00852-CJN Document 29-3 Filed 04/20/20 Page 1 of 3
Exhibit 51

Case 1:20-cv-00852-CJN Document 29-3 Filed 04/20/20 Page 2 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLU1\1BIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
-against-
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,

Civil Action No. I :20-cv-00852 (CJN)

Defendants.

Declaration of Eduardo Beckett
I, Eduardo Beckett, declare as follows:
I. I am an attorney licensed to practice Jaw in New Mexico. I am admitted to the New Mexico District Court, the Western District of Texas, and the United States Court of Appeals for the Fifth Circuit. My business address is 1611 Beech Street, Suite B, El Paso, TX 79925.
2. I have been practicing law since 2005 when I joined the New Mexico Legal Aid, Inc., farmworker division, located in Las Cruces, New Mexico, where I represented migrant and seasonal fannworkers under, inter alia, the Fair Labor Standards Act ("FLSA") and the Agriculture Worker Protection Act ("AWPA"). From 2006-2008, I worked as an Assistant City Attorney/Prosecutor for the City of Las Cruces, NM.
3. I have a client detained at Tacoma Northwest Detention Center in Washington. He was previously detained at the Otero Processing Center in Chaparral, New Mexico, and the West Texas Detention Center in Sierra Blanca.
4. My client had an individual hearing scheduled for April 8, 2020. On April 3, 2020, consistent with the standing order of Judge Brock Taylor of the Otero Immigration Court, I called the i1mnigrationjudge's clerk to request to appear telephonically for the April 8 hearing due to the COVID-19 pandemic. Because my client was in Tacoma, both I and the court knew that he would be appearing by video-teleconference ("VTC"). The clerk did not decide my request on April 3.

Case 1:20-cv-00852-CJN Document 29-3 Filed 04/20/20 Page 3 of 3
5. On April 6, the clerk called me back and said I could not appear telephonically because my client was appearing by VTC. I was told to appear in person and that the jail in which Otero Immigration Court is located would require me to wear a mask and gloves.
6. When I appeared in person on April 8, the judge told me that I had to appear in person due to technological limitations. I was told that the comi lacked the technological capability to have myself, my client, and the interpreter all participate in the hearing remotely.
7. I asked for a change of venue as the IJ told me that she was going to deny the claim due to last-minute changes on my client's asylum application. I argued that ICE took my client across state lines preventing me from going over the asylum application with him and the staff in Tacoma only recently allowed me to speak to my client for ten minutes one day before his individual hearing. The judge eventually granted my request to change the venue to Tacoma.
8. The immigration judge and I discussed the impact of COVID-19 and the danger it presents to judges, counsel, and detainees. l told her that one of my clients was recently transferred to Otero Detention Center and he witnessed a Guatemalan detainee who had a high fever and was literally shaking. The guards were co-mingling the detainees and not practicing social distancing. The guard that was in the court denied it. The next day it was repmied that an employee and a detainee at the detention center tested positive for COVID - 19.
9. Before I entered the facility, a guard who was not wearing personal protective gear, such as gloves or a mask, took my temperatme with a defective thermometer. The thennometer was not reading my temperature correctly because it took him several attempts to get a reading. During the hearing, the immigration judge, the guard, the judge's clerk, and ICE counsel were all without wearing personal protective equipment. They immigration judge claimed that counsel table was ten feet away from her. She also admitted that the court staff were not being tested for COVID-19 and that they did not have personal protective equipment.
on April 18, 2020 in El Paso, TX.
2

Case 1:20-cv-00852-CJN Document 29-4 Filed 04/20/20 Page 1 of 3
Exhibit 52

Case 1:20-cv-00852-CJN Document 29-4 Filed 04/20/20 Page 2 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
-against-
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,

Civil Action No. 1:20-cv-00852 (CJN)

Defendants.

Declaration of Kelli Stump
I, Kelli Stump, declare as follows:
1. I am an attorney admitted to practice in Oklahoma.
2. I represented a client at an individual merits hearing in the Dallas Immigration Court.
3. My client was detained in the Moore Detention Center in Okmulgee, Oklahoma.
4. My client’s individual merits hearing was originally scheduled for April 16, 2020. My client was to appear by videoteleconference (“VTC”) from Moore Detention Center. Two witnesses who were testifying on behalf of my client were to appear in Dallas Immigration Court in order to appear by VTC. The judge hearing the proceeding was located at the Falls Church Immigration Adjudication Center in Virginia and was to appear by VTC. I was instructed to appear in-person either at the Dallas Immigration Court with the witnesses or at the Moore Detention Center with my client.
5. On March 27, 2020, I filed a motion requesting that the court allow me and the two witnesses to appear telephonically from my office instead of by VTC from the Dallas Immigration Court. Having received no response, I spoke with the Dallas Immigration Court administrator on April 8, 2020, and was directed to resubmit my motions via email for forwarding to the Falls Church court.
6. I followed up with the court again on April 14 and 15, but I still received no response to my motion.

Case 1:20-cv-00852-CJN Document 29-4 Filed 04/20/20 Page 3 of 3 7. Citing their concerns about COVID-19, the two witnesses refused to travel to the Dallas
Immigration Court to testify. I was forced to file an emergency motion amending the witness list the morning of the hearing. 8. Because the court had not responded, I understood that I was required to appear in person at the hearing as originally planned. Although concerned about the risk of COVID-19 exposure, I traveled to the Dallas Immigration Court to do so. However, when I appeared at the hearing, counsel for the government was not present, even though I was never served with any motion from them to appear telephonically. Moreover, the immigration judge expressed surprise that I was present in person.
I declare under penalty of perjury that the foregoing is true and correct. Executed on April 19, 2020 in Oklahoma City, OK.
______________________ Kelli Stump
2

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Exhibit 54

Case 1:20-cv-00852-CJN Document 29-6 Filed 04/20/20 Page 2 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
-against-
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,

Civil Action No. I :20-cv-00852 (CJN)

Defendants.

Declaration of Michelle Edstrom
I, Michelle L. Edstrom, declare as follows:
I. I am an attorney admitted to practice in the State of Oklahoma, the United States District Court for the Western District of Oklahoma, the United States Court of Appeals for the Tenth Circuit, and the Supreme Court of the United States.
2. I am submitting this declaration as a supplement to update my prior declaration submitted in connection with this litigation on March 26, 2020.
3. In my prior declaration, I explained that one of my clients, who is detained at the Moore Detention Center in Okmulgee, Oklahoma, had an individual hearing scheduled for April 2, 2020. As ofthe writing ofmy prior declaration, I intended to present witnesses at the April 2 hearing and I filed separate motions for myself and the proposed witnesses to appear telephonically rather than in-person.
4. Since the writing ofmy prior declaration, I was permitted to appear telephonically, per the Immigration Court's standing order, but the Immigration Judge assigned to my client's case did not permit the witnesses to appear telephonically or in person. Consequently, my client was forced to proceed with the hearing without the benefit of the witnesses' testimony.
5. As of today, the Immigration Judge has not yet issued a decision in my client's case. However, I believe these witnesses' testimony would have been critical for my client's case and it was prejudicial to my client to have had to proceed with the hearing without it.

Case 1:20-cv-00852-CJN Document 29-6 Filed 04/20/20 Page 3 of 3
I declare under penalty ofperjury that the foregoing is true and correct. Executed on April 17, 2020 in Oklahoma City, Oklahoma.

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Exhibit 55

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Exhibit 56

Case 1:20-cv-00852-CJN Document 29-8 Filed 04/20/20 Page 2 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
-against-
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,

Civil Action No. 1:20-cv-00852 (CJN)

Defendants.

Declaration of Homero Lopez, Jr.
I, Homero Lopez, declare as follows:
1. I am an attorney admitted to practice in Louisiana.
2. I am submitting this declaration as a supplement to update my prior declaration dated April 6, 2020, which was previously submitted in connection with this litigation.
3. I am counsel to one of the named plaintiffs in this case, Roberto Fausto Velazquez Quiala. Mr. Velasquez Quiala is currently detained in the Pine Prairie ICE Processing Center ("PPIPC") in Louisiana. Originally, he was scheduled for an individual merits hearing at the Oakdale Immigration Court on April 30, 2020. This hearing was rescheduled to May 19, 2020, due to the travel restrictions put in place by Louisiana's stay at home order as well as the extreme limitations on meeting with clients at PPIPC due to the COVID-19 outbreak.
4. As I previously explained in my original declaration, I have had substantial difficulty reaching multiple clients at the PPIPC, including Mr. Velasquez Quiala. In-person visits with clients have been canceled at the PPIPC due to the COVID-19 and I can only meet with clients through video teleconferencing (VTC). VTCs are limited to 30 minutes a day per client, are often interrupted due to technical issues, and become more limited in time due to the facility's count, ongoing quarantines, etc. Phone calls are more difficult to schedule as the process at PPIPC is that the attorney must call the center, request that the case manager give a message to the client, the client then requests the call, and then the case manager calls the attorney to schedule a time.
5. Since the writing of my original declaration, communicating with Mr. Velasquez Quiala has remained difficult. I have scheduled two VTCs with him. On one occasion, the

Case 1:20-cv-00852-CJN Document 29-8 Filed 04/20/20 Page 3 of 3
facility's count delayed and limited my meeting with Mr. Velaquez Quiala. During the second one, l was able to begin preparing him for his upcoming hearing. However, the limited 30 minutes makes it difficult to go over the preparation in detail and in a manner which will allow ongoing preparation to be carried out effectively.
6. Separately, all hearings for individuals detained at PPIPC are being conducted via videoconference from PPIPC's library. This means that library hours have become even more limited than before. Individuals are not permitted into the library until all hearings for the day have concluded, which typically does not occur until the evening. This limits the ability of individuals who are proceeding on a pro se basis to prepare for their cases, complete required forms, make copies, etc. This leaves them unprepared for their hearings and submitting documents that have not been completed with adequate research.
I declare under penalty of perjury that the foregoing is true and correct. Executed
on April 19, 2020, in New Orleans, Louisiana.

Case 1:20-cv-00852-CJN Document 29-9 Filed 04/20/20 Page 1 of 3
Exhibit 57

Case 1:20-cv-00852-CJN Document 29-9 Filed 04/20/20 Page 2 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
-against-
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,

Civil Action No. 1:20-cv-00852 (CJN)

Defendants.

Declaration of Stacy Tolchin I, Stacy Tolchin, declare as follows:
1. I am an attorney admitted to practice in the State of California. 2. I am the Vice-Chair of the Board of the National Immigration Project of the National
Lawyers Guild (“NIPNLG”), a Plaintiff in this lawsuit. 3. NIPNLG is a membership-based organization representing 1,500 immigration attorneys,
legal workers, and immigration rights advocates. 4. The following members of NIPNLG have submitted declarations in support of Plaintiffs’
Complaint in this matter: i. Laura G. Rivera ii. Andrea Sáenz
iii. George A. Terezakis iv. Kelly Morgan v. Amy Melissa Bittner vi. Ilana Etkin Greenstein vii. Laura P. Lunn viii. Christina A. Brown

Case 1:20-cv-00852-CJN Document 29-9 Filed 04/20/20 Page 3 of 3 ix. Carlos Moctezuma Garcia x. Michelle Mendez xi. Stacy Tolchin xii. Matthew Green xiii. David Bennion xiv. Allison Boyle xv. Veronica Semino I declare under penalty of perjury that the foregoing is true and correct. Executed on April 19, 2020 in Altadena, CA.
______________________ Stacy Tolchin
2

Case 1:20-cv-00852-CJN Document 29-10 Filed 04/20/20 Page 1 of 4
Exhibit 58

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Exhibit 60

Case 1:20-cv-00852-CJN DocumEexhnibtit 6209-12 Filed 04/20/20 Page 2 of 2

Declarant/Ex. Number
Ex. 52, Stump Decl. ¶¶ 5-8* Ex. 51, Beckett Decl. ¶¶ 4-6*

COVID among hearing participants before/after

Unable to obtain evidence due to COVID

Necessary party unable to fully participate in hearing due to COVID or tech issue

¶¶ 5-7

¶¶ 5-7

¶ 7

Participants required to travel

States

to common locations for hearing involved

¶ 8

TX/VA

¶ 6

NM/WA

Ex. 53, Hartnett Decl. ¶¶ 4-6*

¶ 5

¶ 6

PA

Ex. 3, Church Decl. ¶ 11

¶ 17

¶ 15

¶¶ 9, 10-11, 13

MA

Ex. 9, Terezakis Decl. ¶¶ 32-33, 36-41

Ex. 40, Terezakis Supplemental Decl. ¶¶ Ex. 9, ¶ 42; Ex. 40, ¶ 5 Request for continuance of in-person 3-4 proceeding denied or untimely decided, Ex. 28, Edstrom Decl. ¶¶ 7-8 request for telephonic appearance denied or Ex. 54, Edstrom Supplemental Decl. ¶¶ 3-

Ex. 54, ¶¶ 3-4

Ex. 54, ¶¶ 3-4

Ex. 9, ¶ 33

NY/NJ OK/TX

untimely decided, or due process concerns 4*

compelled in-person appearance

Ex. 31, Steiner Decl. ¶¶ 3-5, 10

¶¶ 3-5, 10

N/A

Ex. 35, Boyle Decl. ¶¶ 7-8

¶¶ 3-6, 10

¶ 9

¶ 9

TX

Ex. 38, Bennion Decl. ¶¶ 2-3

¶ 3

¶ 3

PA

Ex. 6, Rivera Decl. ¶ 23

¶ 23

GA

Ex. 10, Morgan Decl. ¶ 4

¶ 4

MA

Ex. 48, Marzouk Decl. ¶ 6

¶ 6

¶ 6

MA

Ex. 55, Semino Decl. ¶¶ 5-10*

¶¶ 5-6, 10

¶ 4

¶¶ 8-9

LA/NY

Ex. 41, Lingat Decl. ¶¶ 10-17

¶¶ 11, 15

¶¶ 5-10

NJ

Ex. 9, Terezakis Decl. ¶¶ 32-33

"Remote" hearing continuance denied

Ex. 40, Terezakis Supplemental Decl. ¶¶ Ex. 40, ¶ 5 3-4

Ex. 9, ¶ 33

NY/NJ

Ex. 42, Weiner Decl. ¶¶ 7-9

¶¶ 7-8

NY/NJ

Ex. 55, Semino Decl. ¶¶ 7-8*

¶¶ 5-6, 10

¶¶ 8-9

LA/NY

Ex. 2, Ehrlich Decl. ¶ 1

Ex. 9, Terezakis Decl. ¶¶ 36-45

¶ 42

Ex. 13, Bittner Decl. ¶¶ 27-28

Ex. 22, Hollithron Decl. ¶ 13

¶¶ 1-3, 7

¶¶ 27-28

¶ 13

¶ 13

NJ NY/NJ OH CO

Ex. 28, Edstrom Decl. ¶¶ 7-8

Ex. 54, Edstrom Supplemental Decl. ¶¶ 3-

Ex. 54, ¶¶ 3-4

Ex. 54, ¶¶ 3-4

OK

"Remote" hearing conducted or to be 4*

conducted without protecting health or due Ex. 36, Green Decl. ¶¶ 4-6

process**

Ex. 39, Ford Decl. ¶ 5

¶¶ 4-5

¶ 6

PA

¶ 5

OH

Ex. 49, Durham Decl. ¶¶ 4, 6

¶ 6

NE

Ex. 38, Bennion Decl. ¶¶ 2-5

¶¶ 2-3

¶¶ 2-3

PA

Ex. 56, Lopez Supplemental Decl. ¶ 6*

¶¶ 4-5

LA

Ex. 34, Sud-Devaraj Decl. ¶¶ 4-5

* Declaration received after reply submitted

Ex. 58, Sud-Devaraj Supplemental Decl. ¶¶ 7-8*

Ex. 34, ¶ 8; Ex. 57 ¶ 7

Ex. 58, ¶¶ 7-8

Ex. 58, ¶ 7

AZ

** Many standing orders require participants to waive the right to object to the admissibility of documents on the basis that it cannot be inspected, even when the documents has not previously been served on the opposing party. See, e.g. , Standing Order, Aurora Immigration Court, https://www.justice.gov/eoir/page/file/1264456/download; Standing Order, Florence Immigration Court, https://www.justice.gov/eoir/page/file/1266931/download; Standing Order, LaSalle

Immigration Court, https://www.justice.gov/eoir/page/file/1261171/download; Standing Order, Las Vegas Immigration Court, https://www.justice.gov/eoir/page/file/1259231/download; Standing Order, Otay Mesa Immigration Court,

https://www.justice.gov/eoir/page/file/1264436/download; see also Ex. 3, Church Decl. ¶ 12; Ex. 6, Rivera Decl. ¶ 23; Ex. 17, Manzanarez Decl. ¶ 19; Ex. 26, Mendez Decl. ¶ 19; Ex. 33, Scott Decl. ¶ 14.

Case 1:20-cv-00852-CJN Document 29-13 Filed 04/20/20 Page 1 of 3
Exhibit 61

Case 1:20-cv-00852-CJN Document 29-13 Filed 04/20/20 Page 2 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
-against-
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,

Civil Action No. 1:20-cv-00852 (CJN)

Defendants.

Declaration of Ilana Etkin Greenstein
I, Ilana Etkin Greenstein, declare as follows:
1. I am an attorney admitted to practice in the Commonwealth of Massachusetts.
2. I am the Senior Technical Assistance Attorney for the Immigration Justice Campaign (“IJC”), a Plaintiff in this lawsuit.
3. IJC is a non-profit national organization which facilitates pro bono representation for detained individuals by recruiting, training, and mentoring attorneys and connecting them with individuals who need their legal services in immigration proceedings.
4. The following IJC volunteers have submitted declarations in support of Plaintiffs’ Complaint in this matter:
i. David Ehrlich
ii. Mary Jane Miller
iii. Deva Robbins
iv. Stephanie S. Pengilley
v. Henry D. Hollithron
vi. Veronica Semino

Case 1:20-cv-00852-CJN Document 29-13 Filed 04/20/20 Page 3 of 3

Case 1:20-cv-00852-CJN Document 29-14 Filed 04/20/20 Page 1 of 2

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
-against-
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,

Civil Action No. 1:20-cv-00852 (CJN)

Defendants.

[PROPOSED] ORDER GRANTING MOTION FOR LEAVE TO FILE PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER
Upon Consideration of Plaintiffs’ Motion for Leave to File Plaintiffs’ Supplemental Brief
in Support of Emergency Motion for Temporary Restraining Order, it is HEREBY ORDERED
that Plaintiffs may file their supplemental brief and accompanying exhibits, and the supplemental
brief and accompanying exhibits will be considered filed as of the date of this Order.

SO ORDERED.

DATED: ________, 2020

________________________ Hon. Carl J. Nichols United States District Judge

Case 1:20-cv-00852-CJN Document 29-14 Filed 04/20/20 Page 2 of 2

NAMES OF PERSONS TO BE SERVED WITH PROPOSED ORDER UPON ENTRY

In accordance with Local Civil Rule 7(k), listed below are the names and addresses of the

attorneys and parties entitled to be notified of the Proposed Order’s entry:

Sirine Shebaya (D.C. Bar No. 1019748) Khaled Alrabe (pro hac vice) Amber Qureshi (pro hac vice) Cristina Velez (pro hac vice) NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW, Suite 200 Washington, DC 20007 (202) 656-4788 sirine@nipnlg.org khaled@nipnlg.org amber@nipnlg.org
cristina@nipnlg.org
Matthew D. Slater (D.C. Bar No. 386986) Elsbeth Bennett (D.C. Bar No. 1021393) CLEARY GOTTLIEB STEEN & HAMILTON LLP 2112 Pennsylvania Avenue, N.W. Washington, D.C. 20037-3229 T: 202-974-1500 F: 202-974-1999 mslater@cgsh.com ebennett@cgsh.com
Jennifer Kennedy Park (pro hac vice) Lina Bensman (pro hac vice) CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, New York 10006 T: 212-225-2000 F: 212-225-3999 jkpark@cgsh.com lbensman@cgsh.com

Erez Reuveni Assistant Director U.S. Department of Justice Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 P: (202) 307-4293 erez.r.reuveni@usdoj.gov
Brian C. Ward Senior Litigation Counsel United States Department of Justice Office of Immigration Litigation – District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 P: (202) 616-9121 F: (202) 305-7000 brian.c.ward@usdoj.gov
Andrew J. Halaska U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 P: (202) 307-8704 F: (202) 305-7000 andrew.j.halaska@usdoj.gov
William C. Bateman Trial Counsel U.S. Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 P: (202) 598-5204 william.c.bateman@usdoj.gov

2

 
 Case 1:20-cv-00852-CJN Document 34 Filed 04/23/20 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
v.
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW et al.,
Defendants.

)

)

)

)

)

)

Case No. 1:20-cv-00852 (CJN)

)

)

)

)

)

)

BRIEF OF THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES AS AMICUS CURIAE IN SUPPORT OF NEITHER PARTY
Ashley C. Parrish (D.C. Bar No. 464683) Joshua Mitchell (D.C. Bar No. 1012854) KING & SPALDING LLP 1700 Pennsylvania Avenue NW Washington, D.C. 20006 Telephone: (202) 737-0500 Email: aparrish@kslaw.com
Counsel for Amicus Curiae

Case 1:20-cv-00852-CJN Document 34 Filed 04/23/20 Page 2 of 13
TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii CORPORATE DISCLOSURE STATEMENT .............................................................................. 1 INTEREST OF AMICUS CURIAE ............................................................................................... 2 STATEMENT OF AMICUS CURIAE .......................................................................................... 3 CONCLUSION............................................................................................................................... 9

Case 1:20-cv-00852-CJN Document 34 Filed 04/23/20 Page 3 of 13
TABLE OF AUTHORITIES Rules 8 C.F.R. § 1003.19 .......................................................................................................................... 8 8 C.F.R. § 1003.42(c)...................................................................................................................... 9 8 C.F.R. § 1208.31(g) ..................................................................................................................... 9 Other Authorities EOIR Performance Plan,
ABA Journal................................................................................................................................ 6 Memorandum from James R. McHenry III to all Immigration Judges and Staff,
Case Priorities and Immigration Court Performance Measures App. A (Jan. 17, 2018) .......... 6 Monyak, Suzanne,
Amid Pandemic, Hearings for Detained Migrant Kids Go On, Law360 (Apr. 19, 2020), ............................................................................................................. 6 U.S. Dep’t of Justice, Exec. Office for Immigration Review, Immigration Court Practice Manual § 9.3(e) (April 10, 2020)d ................................................. 8
ii

Case 1:20-cv-00852-CJN Document 34 Filed 04/23/20 Page 4 of 13
CORPORATE DISCLOSURE STATEMENT Amicus curiae the National Association of Immigration Judges is a non-partisan, nonprofit, voluntary association of United States immigration judges. Since 1979, the NAIJ has been the recognized representative of all (currently approximately 440) non-managerial immigration judges across the country for collective bargaining purposes. The NAIJ is affiliated with the International Federation of Professional and Technical Engineers, a diverse labor union that advocates on behalf of more than 80,000 women and men in professional, technical, administrative, and associated occupations in the United States and Canada. No publicly held company has 10% or greater ownership in the NAIJ.

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INTEREST OF AMICUS CURIAE1 Amicus curiae is the National Association of Immigration Judges (NAIJ). The NAIJ is a non-partisan, non-profit, voluntary association of United States immigration judges. Since 1979, the NAIJ has been the recognized representative of all non-managerial immigration judges across the country for collective bargaining purposes. Our mission is to promote the independence of immigration judges and to enhance the professionalism, dignity, and efficiency of the immigration courts, which are the trial-level tribunals where removal proceedings initiated by the Department of Homeland Security (DHS) are conducted. We work to improve our court system through educating the public, legal community and media; providing testimony at congressional oversight hearings; and advocating to safeguard and ensure the integrity and independence of the immigration courts. As immigration judges we work for the Department of Justice within the Executive Office for Immigration Review (EOIR), which oversees the immigration court, the Board of Immigration Appeals and the Office of the Chief Administrative Officer (OCAHO). We conduct a variety of immigration court hearings and other adjudications, such as bond redetermination matters. The proceedings involve both individuals who are within the United States and not detained (“nondetained” individuals) and those who are detained and held in Immigration and Customs Enforcement (ICE) custody (“detained” individuals).
1 In accordance with Local Rule 7(o), the NAIJ certifies that (1) this brief was authored entirely by its counsel and not by counsel for any party, in whole or in part; (2) no party or counsel for any party contributed money to fund preparing or submitting this brief; and (3) apart from amicus curiae, its members, and its counsel, no other person contributed money to fund preparing or submitting this brief.
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The NAIJ submits this brief in support of neither party to help the Court by providing the perspectives of immigration judges on the important issues raised in this case.2
STATEMENT OF AMICUS CURIAE In late March 2020, after multiple requests by all frontline stakeholders, including NAIJ, EOIR suspended all non-detained hearings through at least May 1, 2020, as an appropriate measure to protect its employees, stakeholders, and members of the public from the spread of the COVID19 virus. But EOIR has refused requests to delay detained hearings, which continue to be conducted at immigration courts around the country. The failure to take appropriate steps with respect to detained hearings raises serious concerns. 1. Operating immigration courts involves close contact among judges, court staff, detainees, and members of the public. EOIR’s refusal to close detained courts continues to cause a cascade of social interactions that puts all of us at risk. It requires immigration judges and court staff to continue to travel to detained courtroom settings and to work shoulder-to-shoulder in offices and hearings. The design of our courtrooms and common workspace in the vast number of our locations simply does not allow for social distancing. Immigration court interpreters continue to appear at detained immigration court hearings to provide essential services for the hundreds of languages immigration detainees speak, which often involves travel from distant locales. Once in a courtroom, they must be placed close enough to the respondent to hear, a situation complicated exponentially if the people in court wear masks.
2 The views expressed herein are those of the NAIJ, developed after extensive consultation with the membership, and are not presented by NAIJ as employees or representatives of the U.S. Department of Justice, Executive Office for Immigration Review. The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review.
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Immigration detainees are moved by security officers within detention facilities and across the country, as ICE runs a nationwide immigrant detention operation relying on a network of government and contract detention facilities. And, of course, many immigration detainees have recently been released to ICE custody after a stay in federal, state, or local prisons or jails— facilities that are plagued with their own COVID-19 outbreaks. Once they arrive in detention in a facility, detainees are frequently brought to court in large groups, or are required to wait outside courtrooms in large groups before being called to enter individually. Neither the detention facilities nor our immigration courts were designed to observe the currently required amount of social distancing.
The continued operation of detained courts requires immigration attorneys to continue to travel to courthouses. Even when telephonic court appearances have been approved, attorneys often have no way to review court files to prepare for cases without physically visiting the court. Because of severe limitations in speaking with detained respondents by telephone, they often must also travel to detention centers to consult privately with their clients. These visits necessitate wading through security lines and coming into close contact with facility employees, other visitors, and immigration detainees before even entering a courtroom. Moreover, detainees around the country are quarantined and “cohorted” because of COVID-19 exposure, sometimes making it difficult for attorneys to meet with their clients at all. Families of detainees, often including their children (now out of school without available alternate childcare), continue to travel to immigration courthouses in an attempt to see their loved ones and serve as witnesses in their hearings, even when hearings are conducted by video teleconference. They also appear at detention facilities to post bond or to bring to court documents essential for the cases of their loved ones.
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Bringing court documents from the outside highlights another risk—namely, that our immigration courts still rely largely on paper filings and documents. Although EOIR has sought to expand electronic filing of documents, a large percentage of detainees are unrepresented by counsel and have no access to electronic filings. Given technological, linguistic, and other obstacles, submitting paper filings in court remains standard practice. Accordingly, to do the court’s work, parties appearing in immigration court must pass papers back and forth—with the result that legal briefs, court orders, paper evidence, and paper court files are passed from hand to hand every day
Another issue of tremendous concern is the lack of sufficient cleaning and protective supplies for staff and all who come to court. According to the general medical consensus regarding the transmission of COVID-19 on hard surfaces, all courtroom furniture (including those in the common areas) need to be sanitized after each use in a timely manner. At present, most EOIR staff have not been provided sanitizer, wipes, or masks. Nor are all the courtrooms in use supplied with those necessities for each person who appears, including attorneys, interpreters, and witnesses. Judges have instead been advised to bring in their own personal protective gear and sanitizing supplies—an unrealistic demand given the general unavailability of those products and supplies. Moreover, to ensure safe social distancing both courtrooms and waiting rooms would need to be reconfigured, tediously monitored to ensure that social distancing is observed, and cleaned after each use. Our staff and contracted janitorial services are ill-equipped and untrained for these tasks.
EOIR has also refused to suspend court appearances for unaccompanied children in removal proceedings who currently live in shelters or foster care homes supervised by the Office of Refugee Resettlement while awaiting family reunification. EOIR has classified these cases as
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“detained,” thereby compelling these children to appear in person for their scheduled hearings at the assigned courts during the pandemic. See Suzanne Monyak, Amid Pandemic, Hearings for Detained Migrant Kids Go On, Law360 (Apr. 19, 2020), https://www.law360.com/articles/ 1264877/amid-pandemic-hearings-for-detained-migrant-kids-go-on (describing challenges of hearings for unaccompanied juveniles during COVID-19 pandemic). EOIR is not protecting any liberty interest with the continued operation of the unaccompanied juvenile docket, because these children are awaiting placement with family members or guardians completely independent of the immigration court process.
2. Strict and arbitrary quotas and deadlines make immigration judges balance job security against public health. The quotas and deadlines imposed on immigration courts and judges have exacerbated the risk to judges, immigration court employees, stakeholders, and the general public. For example, EOIR has issued detained case completion goals requiring 85 percent of detained hearings to be completed within 60 days of case filing. See Memorandum from James R. McHenry III to all Immigration Judges and Staff, Case Priorities and Immigration Court Performance Measures App. A (Jan. 17, 2018), https://www.justice.gov/eoir/page/file/1026721/ download. Judges are rated based on so-called “performance metrics,” and risk poor performance reviews if they continue too many cases or do not make decisions on cases quickly enough. Some of these goals have extremely strict and short deadlines: Immigration judges are required to complete 90 percent of bond hearings on the first scheduled hearing and 95 percent of individual hearings on the first scheduled merits hearing. See EOIR Performance Plan, ABA Journal, https:/ /www.abajournal.com/images/main_images/03-30-2018_EOIR_-_PWP_Element_3_new.pdf. Judges who do not meet these deadlines risk being found unsuccessful in their performance appraisals, which may lead to them losing their jobs.
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It is worth noting that approximately a quarter of all immigration judges are still on probation,3 meaning that they can be fired without cause or simply not kept on as permanent hires due to failure to produce these arbitrary number of case completions. Moreover, EOIR has not mitigated the risk posed by the agency’s arbitrary quotas. To date—more than five weeks after the President declared a national emergency based on the COVID-19 pandemic—Director James McHenry has not taken any action to relax or excuse strict compliance with his performance metrics or quotas in light of the COVID-19 crisis.
The combination of these factors creates a warped incentive structure in which immigration judges, when faced with a motion to continue a hearing based on COVID-19 exposure of a detainee, a lawyer, an interpreter, or a witness, must weigh protection of the public health against their own job security.
3. EOIR has failed to act. The risks posed by the continued operation of the detained courts are demonstrated by multiple incidents across the United States. The New York City Varick Street Immigration Court, the Krome (Miami) Immigration Court, and the Otay Mesa (San Diego) Immigration Court provide illustrative examples of COVID-19 outbreaks associated with immigration detention within detention facilities and the concomitant exposure of COVID-19 to judges, court staff, DHS staff, and the public due to the appearance of immigration detainees in immigration courts. It is therefore not surprising that more than half of the immigration courts nationwide have reported test-confirmed COVID-positive or symptomatic individuals. The harm to health and safety has ranged from symptomatic individuals either working within or appearing at court and spreading the virus, to judges becoming infected with the COVID-19, to a guard at a hybrid court dying from the disease.
3 Immigration judges are generally on probation for two years after their appointments. 7

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EOIR continues to close courts only on an ad hoc basis after cases of exposure to testconfirmed COVID-19 individuals, though EOIR has refused to publicly disclose reasons for many of the court closures or acknowledge the lack of available testing for many individuals who exhibit COVID-19 symptoms. Courts are periodically closed for a varying number of days for “deep cleaning” because of these exposures, but EOIR has not shared the standards used to determine what exposure necessitates closure, for how long, and why certain court staff but not others are required to stay home as a result. There are numerous examples of closures and reopening of immigration courts across the nation. NAIJ has repeatedly expressed concern to EOIR over EOIR’s inability to effectively and efficiently communicate the closures, delaying closure due to lack of communication within management resulting in risk of imminent injury to all court participants.
4. Essential court work can continue outside the courthouse using available telephonic and digital means. NAIJ is familiar with the affidavit of Director McHenry, submitted in this matter. While Director McHenry is correct that any temporary closure of detained immigration courts must also take into account the liberty interests of detainees, NAIJ has proposed that the key types of hearings implicating these liberty interests—namely, bond redetermination hearings and “credible fear” and “reasonable fear” review hearings for persons claiming a fear of harm in their countries—may be heard by immigration judges working outside the immigration courthouse. Indeed, many bond redetermination matters may be decided based on electronic document submissions from represented detainees and ICE counsel. See 8 C.F.R. § 1003.19 (governing the conduct of bond redeterminations); U.S. Dep’t of Justice, Exec. Office for Immigration Review, Immigration Court Practice Manual § 9.3(e) (April 10, 2020), https:// www.justice.gov/eoir/page/file/1258536/download (noting that, “In general, bond hearings are
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less formal than hearings in [merits] removal proceedings” and that they are not recorded); 8 C.F.R. § 1003.42(c) (noting that credible fear review proceedings may be conducted telephonically by Immigration Judges); 8 C.F.R. § 1208.31(g) (procedures for similar reasonable fear review proceedings before Immigration Judges). Pro se respondents can also readily submit documents for judicial review through the detention staff, similar to what they do now.
EOIR has refused to direct the suspension of all in-court proceedings despite the availability of the OpenVoice conference call technology touted in the declaration of Chief Immigration Judge Christopher Santoro. Because that technology imposes no pertinent limit on the number of individuals who can participate on a conference, it offers a potential alternative to in-court hearings. Hearings could also be done on the record to the extent necessary using existing laptop computers with the required Digital Audio Recording (DAR) software. Neither Director McHenry nor other senior EOIR officials have provided any reason why they have not directed that all in-court proceedings implicating immediate liberty interests be suspended during the COVID-19 pandemic, which would better protect the participants and the public. Courts around the country have already made such temporary shifts in their work.
CONCLUSION No one can doubt the gravity and complexity of the COVID-19 pandemic and the recognized need for all Americans to take all necessary and reasonable precautions to prevent the spread of the virus, including taking steps to protect all immigration court participants, our overtaxed health care workers, and the public in general. Given the lack of any clear need for inperson detained hearings to proceed at this dangerous time, NAIJ strongly advocates for a temporary suspension of all in-person hearings for detained persons.
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April 20, 2020

Respectfully submitted,
/s/ Ashley C. Parrish Ashley C. Parrish (D.C. Bar No. 464683) Joshua Mitchell (D.C. Bar No. 1012854) KING & SPALDING LLP 1700 Pennsylvania Avenue NW Washington, D.C. 20006 Telephone: (202) 737-0500 Email: aparrish@kslaw.com
Counsel for Amicus Curiae the National Association of Immigration Judges

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 Case 1:20-cv-00852-CJN Document 37 Filed 04/28/20 Page 1 of 27

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, et al.,
Plaintiffs,
v.
EXECUTIVE OFFICE OF IMMIGRATION REVIEW, et al.,
Defendants.

Civil Action No. 1:20-cv-00852 (CJN)

MEMORANDUM OPINION Plaintiffs are five aliens and three organizations whose members represent aliens and other litigants in immigration proceedings. They challenge immigration court and detention facility policies that the government has implemented in response to the COVID-19 pandemic, see generally Compl., ECF No. 1, and have moved for preliminary injunctive relief, see generally Emergency Mot. for TRO, ECF No. 7. For the reasons that follow, the Court denies Plaintiffs’ Motion.
I. Background A. COVID-19 Pandemic On March 11, 2020, the World Health Organization (WHO) declared COVID-19, a disease caused by the novel coronavirus SARS-CoV-2, a pandemic. Decl. of Ashish K. Jha, MD, MPH ¶ 4, ECF No. 7-28. In the pandemic’s wake, governments have declared states of emergency, restricted public gatherings, and imposed other orders to control the spread of the disease. Compl. ¶ 1. By early April, forty-two states, the District of Columbia, and Puerto Rico had issued stay-at-home orders. Marisa Fernandez, More States Issue Stay-At-Home Orders as
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Coronavirus Crisis Escalates, Axios (Apr. 6, 2020), https://www.axios.com/states-shelter-inplace-coronavirus-66e9987a-a674-42bc-8d3f-070a1c0ee1a9.html. At the federal level, President Trump declared the COVID-19 outbreak a national emergency on March 13, and his Coronavirus Task Force and the Centers for Disease Control and Prevention (CDC) have issued guidance to slow the spread of the disease. Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak, Proclamation No. 9994, 85 Fed. Reg. 15,337, 15,337–38 (Mar. 13, 2020); see also Rebecca Ballhaus et al., White House Extends Social-Distancing Guidelines Until End of April, Wall St. J. (Mar. 30, 2020, 6:27 AM), https://www.wsj.com/articles/coronavirus-deaths-top-30-000-as-china-opens-up-province-whereit-began-11585466594.
COVID-19 is highly contagious. Compl. ¶ 25. It is known to be transmitted via respiratory droplets, and the transmissivity increases when individuals are within six feet of one another. Id. Further, individuals can transmit the disease despite appearing asymptomatic. Id. Once contracted, the disease can result in severe symptoms, including respiratory and kidney failure, and in the most severe cases can cause death. See id. ¶ 26. Some members of the population, including older individuals and those with certain medical conditions, face greater risk of these serious symptoms. Id. ¶ 27.
It appears that, at this point in time, the only effective measures to reduce the spread of COVID-19 are to socially distance and to maintain vigilant hygiene, including regularly washing hands with soap and water and use of hand sanitizer when soap and water is not available. See id. ¶ 31; CDC, How to Protect Yourself & Others, https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/prevention.html (last reviewed Apr. 24, 2020). The CDC has warned that courthouses, prisons, and detention centers are especially vulnerable to the rapid spread of
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COVID-19. Compl. ¶ 35. In fact, the virus has already made its way into some detention facilities and prisons, including those run by Immigration and Customs Enforcement (ICE), as well as some immigration courts around the country. See id. ¶¶ 32–33.
B. Defendants’ Response to COVID-19 Defendant Executive Office of Immigration Review (“EOIR”) is a component of the Department of Justice and is responsible for directing and managing the immigration court system, including sixty-nine immigration courts located across the country. Decl. of James McHenry (“McHenry Decl.”) ¶¶ 8–9, ECF No. 19-2. Defendant ICE (specifically an operational program called Enforcement and Removal Operations (“ERO”)) is a component of the Department of Homeland Security that is responsible for managing the programs that relate to the supervision, detention, and removal of aliens in the United States. Decl. of Russell Hott (“Hott Decl.”) ¶ 5, ECF No. 19-5. EOIR’s and ICE’s responses to the pandemic began in mid-March, shortly after President Trump declared a national emergency. See Compl. ¶ 36; McHenry Decl. ¶¶ 51–54. On March 18, 2020, EOIR postponed through April 10 all hearings for non-detained aliens. McHenry Decl. ¶ 53. The same day, the Director of EOIR issued a memorandum adopting guidance for all immigration courts—modeled after similar guidance issued by the federal courts— “[t]o promote the safety of immigration court personnel, representatives, aliens, attorneys for the Department of Homeland Security, and the general public” during the pandemic that was “effective immediately.” James R. McHenry III, Director EOIR, Immigration Court Practices During the Declared National Emergency Concerning the COVID-19 Outbreak (“McHenry Mem.”) at 1 (Mar. 18, 2020), ECF No. 19-3. The guidance restricts access to EOIR space for individuals at risk of having COVID-19; encourages immigration judges and parties to resolve cases on the briefs; establishes policies to maximize the use of remote hearings (via telephone or video
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teleconference (“VTC”)); and reminds practitioners and immigration judges of steps that would reduce the risk of exposure to COVID-19, “such as waiving appearances, granting continuances, limiting physical presence in the courtroom, issuing standing orders, . . . and conducting hearings by VTC or by telephone.” McHenry Decl. ¶ 47 (footnotes omitted) (discussing the McHenry Mem.). Five days later, EOIR postponed all removal hearings involving aliens under the Migrant Protection Protocols (“MPP”) program through at least April 22. Id. ¶ 54. On March 30, EOIR announced that hearings for all non-detained aliens were further postponed through May 1, 2020, and the next day, EOIR postponed MPP program removal hearings through at least May 1. Id. ¶¶ 68–69.
EOIR has also established court-specific email addresses to permit for temporary electronic filings at the immigration courts that have not adopted EOIR’s new electronic filing system, see id. ¶¶ 92–93, as well as email addresses to permit for the electronic filing of briefs at the Board of Immigration Appeals, id. ¶ 71. For proceedings that do occur, EOIR has developed court-specific plans to maximize social distancing protocols, which are “tailored to each court’s staffing levels, building space, and local conditions, among other factors.” Decl. of Christopher A. Santoro ¶ 6, ECF No. 19-6.
ICE has also adjusted the measures it uses at detention centers. Hott Decl. ¶ 20. On March 13, 2020, ICE indefinitely suspended all social visitation to detention facilities. Id. ¶ 21. ICE has encouraged the use of communication services, such as teleconferencing, VTC, and email, in lieu of in-person visits. Id. On March 18, ICE requested that EOIR suspend the in-person requirements for detainee appearances before immigration judges in removal proceedings. Id. ¶ 28. ICE now requires that all visitors provide and wear personal protective
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equipment (“PPE”) when entering any facility to protect detainees, staff, and visitors,1 while certain facilities require other screening measures based on local conditions and other contractual requirements. Id. ¶ 22. On April 4, ICE directed the review of whether detainees in CDCissued high-risk categories should remain in custody. Peter B. Berg, COVID-19 Detained Docket Review at 1–3 (Apr. 4, 2020), ECF No. 19-7. And on April 10, ICE released its COVID-19 Pandemic Response Requirements, outlining various measures in line with CDC guidance to safeguard those in ICE custody. ERO, COVID-19 Pandemic Response Requirements (“ICE Pandemic Response”) at 5–16 (Apr. 10, 2020), ECF No. 19-4. These requirements include screening and monitoring detainees for COVID-19 symptoms and cohorting detainees who display symptoms or test positive for the disease,2 among other measures. Id.
With respect to detainees’ communication with their legal representatives, ICE “[f]acilities have been instructed that, should it become necessary to suspend in-person legal visitation, they must ensure detainee communication with legal representatives continues unimpeded by leveraging all available forms of video technology, email, and messaging.” Hott Decl. ¶ 24. ICE has worked with its service providers to increase alternatives to in-person hearings, but it notes that, “consistent with most other detention and corrections systems, [its practices] incorporate time limitations to ensure equal access.” Id. ¶ 26. For example, La Palma Correction Center in Eloy, Arizona, where two Plaintiffs are detained and where one Plaintiff was previously detained, permits in-person and telephonic attorney conferences. Decl. of Jason
1 ICE notes that it “must be judicious in utilizing” its PPE because, “at this time, ICE does not have on hand enough inventory to offer the public.” Hott Decl. ¶ 23. 2 ICE defines a cohort as “a group of persons with a similar condition grouped or housed together for observation over a period of time.” ICE Pandemic Response at 4 n.3.
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Ciliberti (“Ciliberti Decl.”) ¶¶ 25, 27–29, ECF No. 19-8. Calls with attorneys are not recorded. See id. ¶ 31. In-person counsel visits have not been suspended altogether but are limited to Monday through Friday from 8:00 AM to 5:00 PM, on weekends from 8:00 AM to 12:00 PM, and can be scheduled based on an attorney’s request. See id. ¶ 25. Eloy Detention Center in Eloy, Arizona, where one Plaintiff is detained, has similar rules for telephonic attorney conferences, id. ¶¶ 27–29, and Eloy also does not record attorney calls, see id. ¶ 31. The facility permits in-person counsel visitation between 8:00 AM and 5:00 PM daily or outside those hours if requested. Id. ¶ 25. Pine Prairie ICE Processing Center in Pine Prairie, Louisiana, where one Plaintiff is detained, allows for in-person, telephone, and VTC attorney conferences. Decl. of Alcide R. Benoit (“Benoit Decl.”) ¶¶ 27–38, ECF No. 19-9. Detainees can request to call their attorneys through a case manager, who contacts the attorney and schedules a call. Id. ¶ 30. And attorneys can schedule telephonic conferences or VTCs with their clients by emailing requests to a dedicated inbox. See id. ¶ 28. Pine Prairie permits in-person visits Monday through Friday from 8:00 AM to 7:00 PM and on weekends and holidays from 8:00 AM to 2:00 PM. Id. ¶ 32. As described above, none of these three facilities prohibits all in-person visits, but ICE requires attorneys to wear PPE for in-person visits and screens the attorney’s temperature prior to the visit. See Hott Decl. ¶¶ 21–22.
C. Plaintiffs’ Claims Plaintiffs are five detained aliens (together the “Individual Plaintiffs”) and three organizations whose members represent aliens and other litigations in immigration proceedings (together the “Organizational Plaintiffs”). Compl. ¶¶ 10–18. Four of the five Individual Plaintiffs are presently detained in three ICE facilities in two locations, Eloy, Arizona, and Pine Prairie, Louisiana. Id. ¶¶ 14–18. Plaintiff Enrique Napoles Vaillant is a Cuban national detained in Eloy, Arizona at the La Palma Correctional Center. Id. ¶ 14. He is seeking asylum in the
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United States and is currently awaiting resolution of his immigration case. Id. His next immigration court hearing is currently scheduled for June 22, 2020. Id.; Defs.’ Mem. of Law in Opp’n to Pls.’ Mot. for TRO (“Defs.’ Opp’n”) at 15, ECF No. 19; Pls.’ Suppl. Br. in Supp. of Emergency Mot. for TRO (“Pls.’ Suppl. Br.”) at 6, ECF No. 29-1. Vaillant is not currently represented by counsel despite efforts by nonparty Florence Immigrant and Refugee Rights Project, an immigration advocacy group, to find him pro bono representation. Compl. ¶ 14. Plaintiffs allege that those efforts had to be suspended because of limits placed on attorney access at La Palma and inadequate, limited telephone access there. Id.
Plaintiff Ernesto Rodriguez Cedeno is married to Vaillant, is also detained at La Palma, and is also a Cuban national seeking asylum. Id. ¶ 15. Although Cedeno’s next hearing was scheduled for April 2, 2020, id., that hearing was continued to August 5, 2020, apparently after the filing of this lawsuit, see Defs.’ Opp’n at 15; Pls.’ Suppl. Br. at 6. Like Vaillant, Cedeno is not currently represented by counsel; Plaintiffs allege that the Florence Immigrant and Refugee Rights Project has been unable to find him pro bono representation, citing alleged issues with attorney access, whether in-person or via phone, at La Palma. Compl. ¶ 15.
Plaintiff Arlety Aliaga-Cobas is a Cuban national detained at the Eloy Detention Center. Id. ¶ 16. Aliaga-Cobas’s next immigration hearing is scheduled for June 2, 2020. Id.; Pls.’ Suppl. Br. at 6. While Aliaga-Cobas did have counsel for a prior appeal to the Board of Immigration Appeals, she is not currently represented by counsel in connection with her upcoming hearing. Compl. ¶ 16. Plaintiffs contend that issues accessing Eloy Detention Center in person as well as inadequate, limited telephone services available there have prevented Aliaga-Cobas from finding counsel. Id.
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Plaintiff Roberto Fausto Velasquez Quiala is a Cuban national detained at the Pine Prairie ICE Processing Center. Id. ¶ 18. Although his next hearing was scheduled for the end of April 2020, id., it was recently rescheduled for May 19, Pls.’ Suppl. Br. at 7. Quiala is currently represented in connection with that hearing, but he alleges that he is unable to meet in-person with his attorney and is limited to making thirty-minute calls per day. Compl. ¶ 18.
The fifth Individual Plaintiff, Reynaldo Guerrero-Cornejo, is a Mexican national who has been a lawful permanent resident in the United States since 1989. Id. ¶ 17. He was also detained at La Palma. Id. Guerrero-Cornejo had a merits hearing on April 24, which was held remotely (Guerrero-Cornejo participated via VTC). Pls.’ Suppl. Br. at 5; Pls.’ Reply Suppl. Br. in Supp. of Emergency Mot. for TRO (“Pls.’ Reply Suppl. Br.”) at 19, ECF No. 36. At the hearing, the immigration judge cancelled Guerrero-Cornejo’s removal and ordered his immediate release from detention. Pls.’ Reply Suppl. Br. at 19.
The three Organizational Plaintiffs are “membership organizations comprised of immigration attorneys and immigrant right advocates.” Compl. ¶ 5. The members of Plaintiff National Immigration Project of the National Lawyers Guild “provide immigration representation to, among others, detained individuals who are in removal proceedings.” Id. ¶ 10. The members of Plaintiff American Immigration Lawyers Association “provide legal representation to, among others, individuals in removal and rescission proceedings, and individuals seeking humanitarian relief under our nation’s immigration laws.” Id. ¶ 11. And Plaintiff Immigration Justice Campaign “facilitates pro bono representation for detained individuals by recruiting, training[,] and mentoring those attorneys and connecting them with the individuals who need their legal services.” Id. ¶ 12. Members of each of the Organizational Plaintiffs represent aliens detained around the country. See id. ¶¶ 5, 10–12.
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Plaintiffs filed this lawsuit on March 30, 2020, asserting seven causes of action. See generally Compl. Nine days later, they filed an Emergency Motion for Temporary Restraining Order, requesting temporary prospective relief on three of their claims: (1) violation of the APA (all Plaintiffs against all Defendants); (2) violation of the Immigration and Nationality Act and the APA (Individual Plaintiffs against all Defendants); and (3) violation of the Fifth Amendment right to procedural due process (access to counsel) (Individual Plaintiffs against all Defendants). See Pls.’ Mem. of Law in Supp. of Emergency Mot. for TRO (“Pls.’ Mot.”) at 1–3, ECF No. 7 at 5. They seek a TRO that would, among other things, require EOIR to “postpone all in-person detained hearings, with the exception of bond hearings, for the longer of the duration of the currently declared National Health Emergency or a Relevant State Emergency” subject to certain provisions; require EOIR to “provide for the automatic adjournment of any scheduled hearing or any court-ordered deadline, including for bond proceedings, for a period of 60 days upon submission by the detained person or the detained person’s counsel of a notice”; and require ICE to provide VTC and teleconference capabilities and to take a number of detailed and specific steps relating to counsel communications, the installation of telecommunications and VTC facilities, and the provision of PPE. Pls.’ Proposed TRO ¶¶ 1–3, ECF No. 7-37. Defendants oppose any injunctive relief, arguing both that Plaintiffs lack standing and are otherwise not entitled to a TRO. Defs.’ Opp’n at 1–4.
On April 15, the Court held a telephonic hearing on Plaintiffs’ Motion. Five days later, Plaintiffs supplemented their Motion with additional information about the Individual Plaintiffs, the specifics of those Plaintiffs’ detention and hearings, and other factual information. See generally Pls.’ Suppl. Br. The government responded to that filing on April 23, and on April 24,
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Plaintiffs filed a Reply. See generally Defs.’ Resp. to Pls.’ Suppl. Br., ECF No. 35; Pls.’ Reply Suppl. Br.
II. Legal Standard “A temporary restraining order is an extraordinary remedy, one that should be granted only when the moving party, by a clear showing, carries the burden of persuasion.” Sibley v. Obama, 810 F. Supp. 2d 309, 310 (D.D.C. 2011). “The standard for obtaining injunctive relief through either a temporary restraining order or a preliminary injunction is well established.” Gomez v. Kelly, 237 F. Supp. 3d 13, 14 (D.D.C. 2017). A plaintiff must establish (1) that it is likely to succeed on the merits; (2) that it is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in its favor; and (4) that the proposed relief is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Court “must balance the strengths of the requesting party’s arguments in each of the four required areas.” CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995). “If the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak.” Id.3
III. Analysis A. Likelihood of Success on the Merits Plaintiffs are unlikely to succeed on the merits of their claims. The Individual Plaintiffs and the Organizational Plaintiffs have failed to establish that the Court has jurisdiction over their claims, both because they are unlikely to suffer imminent injury as a result of the challenged
3 As noted by other courts, it is unclear whether this sliding-scale approach to assessing the four preliminary injunction factors survives the Supreme Court’s decision in Winter v. Natural Resources Defense Council, Inc. Banks v. Booth, No. 20-849, 2020 WL 1914896, at *3 (D.D.C. Apr. 19, 2020). The D.C. Circuit has yet to explicitly displace this approach. See Sherely v. Sebelius, 644 F.3d 388, 392–93 (D.C. Cir. 2011).
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policies and because the jurisdiction-channeling provisions of the Immigration and Nationality Act (INA) preclude them from pursuing their access-to-counsel and due process claims in this forum. And even if this Court had jurisdiction, Plaintiffs are unlikely to succeed on the merits. Plaintiffs have not pointed to EOIR and ICE actions that are reviewable under the APA, and, perhaps most important, they also have not demonstrated that EOIR’s and ICE’s actions are arbitrary and capricious given the rapidly changing situation relating to the COVID-19 pandemic.
1. Standing “The first component of the likelihood of success on the merits prong usually examines whether the plaintiffs have standing in a given case.” Barton v. District of Columbia, 131 F. Supp. 2d 236, 243 n.6 (D.D.C. 2001) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998)).4 “It is well established that the ‘irreducible constitutional minimum of standing contains three elements’: (1) injury in fact; (2) causation; and (3) redressability.” Baz v. Dep’t of Homeland Sec., No. 18-cv-01013, 2019 WL 5102827, at *3 (D.D.C. Oct. 11, 2019) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). The injury-in-fact element requires an injury that is “concrete and particularized and actual or imminent, not conjectural or hypothetical.” In re U.S. Office of Pers. Mgmt. Data Sec. Breach Litig., 928 F.3d 42, 54 (D.C. Cir. 2019) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016)). And where plaintiffs seek only prospective relief, “past injuries alone are insufficient to establish standing.” Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir. 2011). Rather, they must “establish an ongoing or future
4 Because courts obviously lack power to issue injunctive relief if they lack jurisdiction, some courts analyze standing issues outside of the likelihood of success on the merits prong. E.g., Banks, 2020 WL 1914896, at *4–5. That analytical question has no effect on the ultimate decision here.
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injury that is ‘certainly impending.’” Williams v. Lew, 819 F.3d 466, 472 (D.C. Cir. 2016) (quoting Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015)). Causation requires “that the injury is fairly traceable to the defendant’s challenged conduct.” Am. Soc'y for Prevention of Cruelty to Animals v. Feld Entm't, Inc., 659 F.3d 13, 19 (D.C. Cir. 2011) (citing Lujan, 504 U.S. at 560–61). And redressability requires that the injury can be remedied “by a favorable decision.” Arpaio, 797 F.3d at 19 (quoting Lujan, 504 U.S. at 561).
a. Individual Plaintiffs The five Individual Plaintiffs argue that they “are suffering two injuries as a result of Defendants’ policies: (1) the imminent risk of contracting and spreading COVID-19; and (2) continued violation of the due process and statutory right to counsel.” Pls.’ Corrected Reply Mem. of Law in Further Support of Mot. for TRO (“Pls.’ Reply”) at 11, ECF No. 26. They principally link the risk of contracting and spreading COVID-19 to their being forced to attend in-person hearings, which EOIR has not suspended across the board (notwithstanding its guidance to implement other methods, such as teleconferences or VTCs, for conducting hearings). And they argue that the policies adopted by ICE, including restricting in-person visits, requiring attorneys and other legal visitors to provide and wear their own PPE during in-person visits, and limiting certain telephone and video calls, “functionally bar[] immigration attorneys from meeting with their clients and . . . depriv[e] detained immigrants of their right to counsel.” Compl. ¶ 4. The Court agrees that the increased risk of contracting COVID-19 constitutes a cognizable injury sufficient to satisfy Article III, and also that the risk of contracting COVID-19 will increase as a result of being forced to attend in-person hearings. See, e.g., Helling v. McKinney, 509 U.S. 25, 32–33 (1993). The government, for its part, does not contend otherwise.
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See Defs.’ Opp’n at 14–16. But none of the Individual Plaintiffs has an imminent in-person hearing. Instead, as a result of requests for continuances that have been granted by the immigration judge (Cedeno) or for other reasons (Vaillant, Aliaga-Cobas, and Quiala), none of the Individual Plaintiffs currently has an in-person hearing scheduled in the next month. In fact, Plaintiff Guerrero-Cornejo did not have to attend his April 24 hearing in person but participated by VTC, and at the end of that hearing the immigration judge granted his petition and ordered him released from detention—thereby mooting his claims altogether. Pls.’ Reply Suppl. Br. at 19. More generally, there is no evidence in the record that any of the Individual Plaintiffs has been forced to appear, or will be forced to appear, at an in-person hearing over his or her request for either a continuance or some way of attending remotely, such as by VTC or teleconference. In fact, the evidence is to the contrary. The Individual Plaintiffs have thus failed to establish that they are likely to suffer an imminent injury to their health that is traceable to EOIR’s failure to take different action.
The Individual Plaintiffs’ second alleged injury—interference with their access to counsel counsel—suffers from similar flaws. The Court agrees that substantial interference with Plaintiffs’ ability to communicate with counsel would constitute a cognizable injury sufficient to satisfy Article III, and the government again does not take a contrary position. See Defs.’ Opp’n at 14–16. But three of the Individual Plaintiffs—Vaillant, Cedeno, and Aliaga-Cobas—are not currently represented. To be sure, they allege in the Complaint that restrictions put in place at the facilities in which they are detained makes it harder to find counsel. See, e.g., Compl. ¶ 14 (“[Vaillant] is currently unrepresented . . . due to the significant restrictions Defendants have placed on attorney access to the facility and the highly limited and inadequate telephone access with individuals detained in those facilities.”). But they fail to explain altogether how the
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government’s policies have caused them to be unable to retain an attorney—especially considering that they had been unable to find counsel even before the pandemic and considering that they were able to retain counsel for this suit.
One of the Individual Plaintiffs, Quiala, does have counsel. But while Quiala alleges that the restrictions in his facility have prevented him from exercising his right to counsel, he has provided very little, if any, specific evidence about how the permitted methods of communication have actually impeded his ability to communicate with counsel. See id. ¶ 18. Quiala does not allege that telephone access is inadequate to prepare for his upcoming mid-May hearing, just that “he is limited to 30 minutes a day for attorney calls.” Id.
Like Quiala, Guerrero-Cornejo is represented by counsel, but prior to his hearing he had not proffered any facts establishing that he had been harmed by telephone access with his counsel, in lieu of in-person meetings, at La Palma. See id. ¶ 17. And as discussed above, Guerrero-Cornejo actually prevailed at his recent hearing (at which he participated via VTC) and has already been released from detention. Pls.’ Reply Suppl. Br. at 19.
b. Organizational Plaintiffs The Organizational Plaintiffs argue that they have associational standing, Pls.’ Reply at 13, which requires them to establish “(1) at least one of their members has standing to sue in her or his own right, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the relief requested requires the participation of an individual member in the lawsuit.” Am. Library Ass’n v. FCC, 401 F.3d 489, 492 (D.C. Cir. 2005). An organizational plaintiff must “show that they have ‘at least one member’ who has suffered, or imminently will suffer, an injury-in-fact.” Make the Rd. N.Y. v. McAleenan, 405 F. Supp. 3d 1,
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32–35 (D.D.C. 2019) (quoting Am. Chemistry Council v. Dep’t of Transp., 468 F.3d 810, 815 (D.C. Cir. 2006)).
The Organizational Plaintiffs contend that their members “have suffered concrete and particularized injuries as a result of [Defendants’] policies, which put their health and safety at risk and prevent them from accessing clients and potential clients, and therefore would have standing to sue in their own right.” Pls.’ Reply at 14 (footnote omitted). They claim that “Defendants’ practices have prevented them from invoking or utilizing remote proceedings or that remote communications are not safely available.” Id. (footnote omitted). In other words, the Organizational Plaintiffs claim injuries similar to those alleged by the Individual Plaintiffs: that their members face the imminent risk of contracting and spreading COVID-19 as a result of Defendants’ policies to continue in-person hearings, and also that their ability to communicate with their clients is being hampered.
As noted above, the Court agrees that the increased risk of contracting COVID-19 constitutes a cognizable injury sufficient to satisfy Article III and also that the risk of contracting COVID-19 will increase as a result of being forced to attend in-person hearings. And again, the government does not contend otherwise. See Defs.’ Opp’n at 16–18. But just as with the Individual Plaintiffs, the Organizational Plaintiffs have not demonstrated that immigration judges are regularly refusing to deny requests for continuances or requests for telephonic or VTC hearings. In fact, although Plaintiffs have submitted a number of declarations from immigration lawyers (some of whom are members of one or more of the Organizational Plaintiffs), no declarant has described a situation in which an immigration judge held an in-person hearing over a detainee’s request for a continuance or for the hearing to be conducted remotely, such as by teleconference or VTC.
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The closest the Organizational Plaintiffs appear to come is the declaration from Eduardo Beckett, an attorney representing a detainee at Tacoma Northwest Detention Center in Washington. Decl. of Eduardo Beckett (“Beckett Decl.”) ¶ 3, ECF No. 29-3. Beckett’s client was scheduled to have a hearing on April 8, 2020, in Otero Immigration Court in Texas; the client was to appear via VTC from Tacoma. Id. ¶ 4. A few days before the hearing, Beckett called the immigration judge’s clerk and requested to appear telephonically, as permitted by the immigration judge’s standing order. Id. Three days later, the clerk responded that Beckett could not appear telephonically because his client was appearing via VTC, and Beckett would have to go to the Otero facility to attend the hearing. Id. ¶ 5.5 Beckett apparently did not request a continuance, nor does it appear that Beckett requested that his client also participate telephonically, and on April 8, Beckett attended the hearing in the same courtroom with the immigration judge. See id. ¶¶ 5–6, 9. While this specific example presents a close call, even here there is no evidence that the immigrant judge denied a request for a continuance or for Beckett’s client to appear telephonically (which may have permitted Beckett to do the same).6
2. Jurisdiction under the INA Even if the Plaintiffs had established Article III standing, the INA likely forecloses at least Plaintiffs’ claims based on access-to-counsel and due process injuries. The INA provides
5 When Beckett arrived at the facility on April 8, he learned that technological limitations were the reason for his having to attend in person. Beckett Decl. ¶ 6. 6 The Organizational Plaintiffs also argue that Defendants’ policies hamper their ability to communicate with their clients. Assuming that this is an injury for Article III purposes, and also assuming that the injury is traceable to Defendants’ actions, the Organizational Plaintiffs themselves do not attempt to assert right-to counsel and due process claims (counts II and III) against Defendants—and for good reason. As they implicitly concede in their Complaint, this right is held by their clients, not the attorneys that make up their membership. And as discussed below, access-to-counsel claims are subject to the INA’s jurisdiction-channeling provisions.
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that “a petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an order of removal,” 8 U.S.C. § 1252(a)(5) (2018), and also expressly consolidates “[j]udicial review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States” into “judicial review of a final [removal] order,” § 1252(b)(9). While this circuit has not interpreted the scope of § 1252, other courts of appeals have held that “Congress has clearly provided that all claims— whether statutory or constitutional—that ‘aris[e] from’ immigration removal proceedings can only be brought through the petition for review process in federal courts of appeals.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1029 (9th Cir. 2016) (citation omitted). This includes claims challenging policies-and-practices that are applied during the course of a removal proceeding. Id. at 1035. The only exception to this bar that has been recognized in this circuit is if a plaintiff challenges “the validity of a regulation of general applicability based on the administrative record generated in rulemaking.” O.A. v. Trump, 404 F. Supp. 3d 109, 128 (D.D.C. 2019).
Plaintiffs’ access-to-counsel and due process claims arise from the course of removal hearings, placing them within § 1252(b)(9)’s broad jurisdictional bar. Whether there has been a violation of any immigration petitioner’s right to counsel will depend on the specific facts that arise from his or her removal proceedings. See J.E.F.M., 837 F.3d at 1035 (“Because the children’s right-to-counsel claims arise from their removal proceedings, they can only raise those claims through the [petition for review] process” (citation omitted)); Aguilar v. U.S. Immigration & Customs Enf’t Div. of Dep’t of Homeland Sec., 510 F.3d 1, 13–14 (1st Cir. 2007) (“Ultimately, allowing aliens to ignore the channeling provisions of section 1252(b)(9) and bring right-to-counsel claims directly in the district court would result in precisely the type of fragmented litigation that Congress sought to forbid.”). In fact, the various declarations
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submitted by Plaintiffs illustrate the breadth of factual circumstances that may arise during the course of such proceedings. E.g., Decl. of Homero López ¶¶ 5–9 (alleging issues with access to counsel at Pine Prairie because of call time limits, the small number of VTC rooms, scheduling issues, and issues reviewing documents with clients, among other reasons), ECF No. 7-5; Aff. of Juliana Manzanarez ¶¶ 13–17 (claiming issues with access to counsel at Eloy and La Palma because of the in-person meeting PPE requirements, the inadequacy of preparing for a hearing via telephone, scheduling issues, clients being charged to make calls, and the lack of call confidentiality, among other reasons), ECF No. 7-18. Plaintiffs’ access-to-counsel and due process claims are therefore reviewable only in the relevant federal court of appeals. J.E.F.M., 837 F.3d at 1031 (“Taken together, § 1252(a)(5) and § 1252(b)(9) mean that any issue—whether legal or factual—arising from any removal-related activity can be reviewed only through the [petition for review] process.” (citation omitted)).
Relying on the Supreme Court’s plurality decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), Plaintiffs argue that none of their claims here are covered by the INA’s jurisdictionchanneling provisions. Plaintiffs argue that in Jennings, “the Supreme Court counseled against reading ‘arising from’ to include claims where the relief requested would become meaningless if delayed until review of a final deportation order,” as they claim is true here. Pls.’ Reply at 7. In Jennings, the Court held that a habeas petition challenging the government’s prolonged detention of an immigrant without a bond hearing did not fall within the scope of § 1252(b)(9). Id. at 841 & n.3. But none of the Individual Plaintiffs’ claims here arise out of bond determinations, and in Jennings the plurality contrasted a bond claim with challenges to “review of an order of removal,” “the decision to detain . . . or to seek removal,” or “any part of the process by which . . . removability will be determined.” Id. at 841 (emphasis added). Relying on Jennings, other
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district courts have held that they lacked jurisdiction to hear challenges related to the adequacy of representation based on immigration court policies in removal proceedings. See, e.g., P.L. v. U.S. Immigration & Customs Enf’t, No. 19-cv-01336, 2019 WL 2568648, at *3 (S.D.N.Y. June 21, 2019) (holding that the court lacked jurisdiction to hear challenge to VTC policies because the policies arose from removal proceedings).
So too here. Plaintiffs’ access-to-counsel and due process claims arise as a “part of the process by which . . . removability will be determined,” Jennings, 138 S. Ct. at 841, and this Court thus lacks jurisdiction over them.7
3. APA claim For the foregoing reasons, Plaintiffs have failed to establish that the Court has jurisdiction over their claims. But even if the Court did have jurisdiction, Defendants’ policies in the wake of the pandemic do not constitute final agency action subject to APA challenge, and in any event, those policies are not arbitrary and capricious.
a. Final agency action It is well-established that the APA limits non-statutory judicial review to final agency actions. 5 U.S.C. § 704. Although courts have sometimes struggled to define exactly when an agency’s action is final, see Sierra Club v. EPA, No. 18-1167, 2020 WL 1684036, at *3–7 (D.C. Cir. Apr. 7, 2020), at least two conditions must exist: (1) “the action must mark consummation of agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature” and (2) “the action must be one by which rights or obligations have been determined, or
7 The INA, however, does not appear to foreclose Plaintiffs’ claims based on the increased risk of contracting COVID-19 as a result of being forced to appear for in-person hearings, which likely could not be remedied through a petition to the relevant court of appeals.
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from which legal consequences will flow,” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (internal citations and quotation marks omitted).
Defendants concede the first condition but contest the second. Defs.’ Opp’n at 29–30. In their view, “the only decision in removal proceedings with actual ‘force and effect of law’ would be a decision by an immigration judge in an individual case and not any decision to adopt or not adopt particular practices for counsel access.” Id. at 30 (quoting Bennett, 520 U.S. at 177–78) (other citation omitted). They argue that until an individual immigration judge renders a decision, “[t]here is no way to tell whether, for example, having an attorney visit with a client or attend a hearing telephonically to prevent the spread of COVID-19 will have any effect on the outcome of the proceedings or any legal consequences.” Id.
Plaintiffs contest this view. They argue that “legal consequences flow from the policies that were put in place instead.” Pls.’ Reply at 19 (citation omitted). They contend that “the concrete and real result of EOIR and ICE’s policies is that rights of detained persons and their counsel are being infringed upon by endangering their health and well-being along with restricting access to counsel, which limits the ability to properly prepare for and attend important immigration proceedings.” Id. (footnote omitted).
The Court agrees that EOIR’s policies do not constitute final agency action because they do not determine any rights or obligations, nor do legal consequences flow from those policies. Instead, legal consequences flow (and rights and obligations are determined) only from the particular decision of an immigration judge implementing EOIR’s policies in a specific case. In fact, until an immigration judge makes such a decision it is unclear what effect, if any, EOIR’s policies have had on a specific proceeding or individual. See CSX Transp., Inc. v. Surface Transp. Bd., 774 F.3d 25, 30 (D.C. Cir. 2014) (“When completion of an agency’s processes may
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obviate the need for judicial review, it is a good sign that an intermediate agency decision is not final.” (quoting DRG Funding Corp. v. Sec’y of Hous. & Urban Dev., 76 F.3d 1212, 1215 (D.C. Cir. 1996)). To take Plaintiff Guerrero-Cornejo’s case as an example, his hearing went forward, he was permitted to participate via VTC, he won his case, and he was released. Pls.’ Suppl. Br. at 5; Pls.’ Reply Suppl. Br. at 19. Similarly, at least two of the other Individual Defendants have recently had their hearings continued. See supra Section I.C.
As for ICE’s policies, they are implemented on a facility-by-facility and individual-byindividual basis, based on the particularized circumstances present at detention centers and the specific requests for attorney-client teleconferences, VTCs, or in-person meetings. See Benoit Decl. ¶¶ 26–38; Ciliberti Decl. ¶¶ 25–33; Hott Decl. ¶¶ 21–24; see also ICE Pandemic Response at 5–16. This includes the facility-by-facility rules regarding how detained aliens, if represented, may contact their attorneys. See Hott Decl. ¶¶ 21–24; see, e.g., Benoit Decl. ¶¶ 26–38; Ciliberti Decl. ¶¶ 25–33. It is unclear when and what legal consequences would flow from these policies, and Plaintiffs (outside of general accusations of harm) do not point to any. See Pls.’ Reply at 19.
Plaintiffs pivot and argue that they have a viable failure-to-act claim. Pls.’ Reply at 22–23. They argue that “statutory authority requir[es] access to counsel and counsels’ ability to provide adequate representation,” and that these are “statutory limits on Defendants’ discretion.” Id. at 22. In their view, the actions that Defendants have taken, including violating the Individual Plaintiffs’ right to counsel, is “without question failure to take action.” Id. at 23.
To be sure, the APA permits challenges “to compel agency action . . . unreasonably delayed.” 5 U.S.C. § 706(1). But “a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2003). Defendants argue that Plaintiffs have failed
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to cite any legal source “requiring the government to take any particular action or that otherwise cabins the agencies’ discretionary choices on how to best respond to a pandemic.” Defs.’ Opp’n at 31. And they claim that even if Plaintiffs could point to a statutory obligation to take some action, Plaintiffs “still could not obtain an order directing agency operations in the particular ways they ask for; under § 706(1) a court can at most compel an agency ‘to take action upon a matter, without directing how it shall act.’” Id. (quoting Cobell v. Norton, 392 F.3d 461, 475 (D.C. Cir. 2004)).
The Court agrees. As an initial matter, Plaintiffs’ argument is primarily focused on their access-to-counsel and due process injuries and claims; they do not appear to contend that Defendants are required by statute to have issued a specific policy regarding in-person hearings. And as to their access-to-counsel claims, Plaintiffs have failed to point to any statute or other source that requires Defendants to have taken specific and particular steps during the pandemic. Plaintiffs’ claims ultimately are not a challenge to Defendants’ failure to follow some clear statutory obligation, but instead a challenge to Defendants having exercised their discretion in implementing policies with which Plaintiffs disagree. See Cobell, 392 F.3d at 472 (“The APA’s requirement of ‘discrete agency action,’ Southern Utah explained, was ‘to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve.’” (quoting 542 U.S. at 66)).
b. Arbitrary and capricious Even if Defendants’ policies and guidance constituted final agency action, Plaintiffs would also have to show that they are unlawful. The APA does, of course, prohibit agency action that is arbitrary and capricious, 5 U.S.C. § 706(2)(A), but “[t]he scope of review under the
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‘arbitrary and capricious’ standard is narrow and a court will not substitute its judgment for that of the agency.” Motor Vehicles Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency’s determination must be upheld “so long as the agency ‘engaged in reasoned decisionmaking and its decision is adequately explained and supported by the record.’” Clark County v. Fed. Aviation Admin., 522 F.3d 437, 441 (D.C. Cir. 2008) (quoting N.Y. Cross Harbor R.R. v. Surface Transp. Bd., 374 F.3d 1177, 1181 (D.C. Cir. 2004)) (other citation omitted).
Plaintiffs argue that Defendants’ actions are “not reasonable” because they “run[] afoul . . . of statutorily conferred rights to counsel and create[] unwarranted risk to health.” Pls.’ Reply at 19–20. They claim that EOIR has acted “in such a way that a detained person’s right to counsel of choice” is not being preserved. Id. at 20. They also contend that ICE has also failed “to meaningfully address the Congressional requirement that persons in immigration detention are afforded meaningful access to counsel.” Id. at 21. In their view, “Defendants’ decisions were not reasonable when looking at the facts before it, and the Court should ‘hold unlawful and set aside’ their arbitrary and capricious agency actions.” Id. at 20 (quoting 5 U.S.C. § 706(2)).
The Court disagrees. Based on the present record, Defendants have reasonably exercised their discretion and authority in response to the COVID-19 pandemic. Less than a week after President Trump declared the COVID-19 pandemic a national emergency, EOIR issued a policy memorandum laying out the threats caused by the pandemic and responding in kind with solutions to prevent the spread of the disease. See generally McHenry Mem. That memorandum delays certain types of hearings, restricts access to immigration courts, and notes that the agency will continue to evaluate whether additional steps are needed to respond to the outbreak. See id. at 1–4. The memorandum also issued guidance to all immigration courts reminding them of
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“well-established authorities which may be utilized for preventative purposes to minimize contact among individuals involved in immigration proceedings.” Id. at 2–3. ICE has responded similarly, adopting policies to restrict unnecessary access to their facilities, test individuals for signs of fever before permitting entry, and testing detainees for COVID-19 before admitting them to facilities. See Benoit Decl. ¶¶ 27–38; Ciliberti Decl. ¶¶ 25–33; Hott Decl. ¶¶ 21–22; see also ICE Pandemic Response at 5–16.
Both Defendants also have adopted new policies to prevent the spread of COVID-19 by maintaining or expanding options for remote attorney conferencing, requiring PPE for necessary in-person meetings, and instituting more rigorous cleaning procedures. E.g., Hott Decl. ¶¶ 21–22; ICE Pandemic Response at 9–10; McHenry Decl. ¶¶ 47–48; McHenry Mem. at 1–4. In the wake of the first pandemic the United States has faced since the early twentieth century and the rapidly changing facts and circumstances relating to it, the Court cannot say that Defendants’ policies and practices are arbitrary and capricious or otherwise reviewable. See, e.g., N.C. Fisheries Ass’n v. Gutierrez, 518 F. Supp. 2d 62, 95 (D.D.C. 2007) (“While [an agency’s] conclusion may be debatable as a policy matter, mere policy disagreement is not a basis for a reviewing court to declare agency action unlawful.” (citing Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 374 F.3d 1251, 1263 (D.C. Cir. 2004)).8
B. Irreparable Injury For the foregoing reasons, Plaintiffs have failed to establish that they have a likelihood of success on the merits. That would end the matter if, as has been suggested, a likelihood of success is now a free-standing prerequisite for preliminary injunctive relief. Davis v. Pension
8 Because they are foreclosed by the INA, see Section III.A.2, the Court does not discuss the substance of Plaintiffs’ access-to-counsel and due process claims again here.
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Benefit Guar. Corp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh, J., concurring) (stating that the Supreme Court’s decisions have “made clear that a likelihood of success is an independent, free-standing requirement for a preliminary injunction”). In any event, Plaintiffs also have not established that they will suffer imminent irreparable injury. “[P]roving ‘irreparable’ injury is a considerable burden, requiring proof that the movant’s injury is ‘certain, great[,] and actual—not theoretical—and imminent, creating a clear and present need for extraordinary equitable relief to prevent harm.” Power Mobility Coal. v. Leavitt, 404 F. Supp. 2d 190, 204 (D.D.C. 2005) (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)).
As discussed above, none of the Individual Plaintiffs currently has an in-person hearing scheduled in the next month, and there is no evidence in the record that any of the Individual Plaintiffs has been or will be forced to appear at an in-person hearing over his or her request for a remote hearing or a continuance. Plaintiffs also have not demonstrated that immigration judges are regularly refusing requests for continuances or requests for telephonic or VTC hearings despite submitting declarations from a number of immigration attorneys from around the country. In these circumstances, Plaintiffs have not established that they are “certain” to suffer an “imminent” injury, especially when weighed against their chances of prevailing on the merits.
The Court does note that the EOIR guidance leaves open the possibility that an individual immigration judge might require, in an individual case, a detainee or her counsel to appear inperson for a hearing, over a request to continue the hearing or to participate in some other manner (such as via teleconference or VTC). But there is no actual evidence in the record of that having occurred, and the possibility of such hearings does not, in the Court’s view, justify the broad relief sought by Plaintiffs. The Court also expects that in those circumstances, the affected
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individual could seek relief in either the Board of Immigration Appeals or the local federal district court.
C. Balance of Equities and the Public Interest Finally, the balance of the equities and public interest do not tip in favor of preliminary injunctive relief. When the government is a party, these two factors merge and “are one and the same, because the government’s interest is the public interest.” Pursuing Am.’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016). Plaintiffs argue that “Defendants would suffer no harm from the cessation of unlawful practices that endanger public health, and any theoretical costs Defendants might incur would be significantly outweighed by the likelihood of irreparable harm to Plaintiffs (and the public).” Pls.’ Mot. at 41. Plaintiffs also argue that the public interest favors granting preliminary injunctive relief. In their view, the public interest is best served by promoting public health policies that reduce the spread of COVID-19. Pls.’ Reply at 34. The Court does not agree that these factors tip so decidedly in favor of the relief Plaintiffs seek. It goes almost without saying, of course, that promoting public health—especially during a pandemic—is in the public interest. But the government has already changed its policies to attempt to minimize any harm to Plaintiffs and others in the immigration system and is making daily and case-by-case determinations about health and safety issues. Plaintiffs’ proposed relief, in contrast, would require this Court to impose a one-size-fits-all approach on all (or most) of the nation’s immigration courts and their specific cases, as well as on all (or most) of the nation’s immigration detention facilities and their unique circumstances. Where, as here, the government has taken steps to craft policies to address the public health issues associated with COVID-19 while continuing to enforce the immigration laws, and where the Court is not certainly not wellpositioned to second-guess those health and safety determinations, the public interest does not point in favor of granting injunctive relief.
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IV. Conclusion For the foregoing reasons, Plaintiffs’ Motion for Temporary Restraining Order is DENIED. An Order will be entered contemporaneously with this Memorandum Opinion.

DATE: April 28, 2020

CARL J. NICHOLS United States District Judge

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