Nat'l Immigration Project of the Nat'l Lawyers Guild v. Exec. Office of Immigration Review

456 F.Supp.3d 16

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)

United States District Court, District of Columbia.

Signed April 28, 2020

Elsbeth Jane Bennett, Matthew David Slater, Cleary Gottlieb Steen & Hamilton LLP, Amber Qureshi, Pro Hac Vice, Cristina Velez, Pro Hac Vice, Sirine Shebaya, National Immigration Project of the National Lawyers Guild, Washington, DC, Jennifer Kennedy Park, Pro Hac Vice, Polina Bensman, Pro Hac Vice, Cleary Gottlieb Steen & Hamilton LLP, New York, NY, Khaled Alrabe, Pro Hac Vice, National Immigration Project of the National Lawyers Guild, Boston, MA, for Plaintiffs.

Alexander James Halaska, Brian Christopher Ward, Erez Reuveni, William Bateman, III, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

CARL J. NICHOLS, United States District Judge

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 Coronavirus Crisis Escalates , Axios (Apr. 6, 2020), https://www.axios.com/states-shelter-in-place-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-where-it-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/2019-ncov/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 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 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 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 CDC-issued 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 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,...