In immigration courtrooms in New York and San Francisco Tuesday, large numbers of judges stayed home from work as their union announced that a judge in Denver had symptoms of COVID-19, the disease caused by the new coronavirus, and in Atlanta an attorney tested positive for the virus — just one day after he appeared in a crowded courtroom.
The move comes as many parties on opposite sides in the nation’s sprawling immigration court system have come together to demand that the Department of Justice temporarily halt court proceedings amidst the global pandemic — something the agency has thus far refused to do.
The agency has said that it is closely reviewing the situation and it has postponed preliminary immigration court hearings across the country. On Tuesday, officials temporarily shut immigration offices around the country because of the virus. But officials have resisted calls to shut the courts as a whole. Such a closure could further exacerbate a booming backlog of more than a million cases — a number that has grown during the Trump administration.
Late Tuesday, the Department of Justice announced it would shut down several courts, including those in New York, Memphis, and Los Angeles. The agency also announced that it would only hold hearings for those currently detained by ICE officials, a significant drawback in caseload.
Courtrooms are not good places to practice social distancing. They are often cramped, with judges, attorneys, family members, experts, and others gathering in close proximity for hearings.
The Department of Justice “has made it clear in recent days that they do not value the health and safety of their own employees, much less the health and safety of DHS counsel, respondents, and respondents attorneys,” said one ICE prosecutor, who spoke on condition of anonymity because they could not comment publicly. “It’s pretty shocking to see. I hope they do the right thing and shut down the courts immediately for the welfare of all involved.”
Another immigration court official added that it feels like “the health and safety of immigration judges, law clerks, security staff, and most importantly, respondents, is far less of a priority than enforcing the nation’s immigration policies.”
Meanwhile, people within the system are starting to get infected.
On Tuesday, judges took matters into their own hands. Nine out of 37 judges in one New York courtroom failed to appear Tuesday, while in San Francisco, where authorities yesterday issued a shelter in place order for residents, 15 out of 22 judges were no-shows, according to an official with knowledge of the statistics. Figures were unavailable for other courts across the country.
The mass absenteeism meant some cases had to be delayed even as the courts grappled with an already enormous backlog.
Dana Marks, a 65-year-old judge in San Francisco and former president of the union, said she stayed out Tuesday after California Gov. Gavin Newsom ordered that those 65 and older should stay in their homes.
She said she and everyone else in the court system had “been unnecessarily placed in a quandary: do we come to work as is expected,” she asked, “or do we follow the local guidance from health department officials?” She added: “We are very much between a rock and a hard place because DOJ has not closed the courts as we have repeatedly demanded.”
Despite an advisory from the Centers for Disease Control and Prevention against gatherings of more than 10 people, immigration court waiting rooms overflow with attorneys and migrants awaiting their still-scheduled hearings. Even this week, attorneys have been posting to social media documenting standing-room-only courtrooms and crowded waiting rooms.
Meanwhile, hundreds of migrants being held along the border under the Remain in Mexico program are still being shepherded across the border for court hearings.
An immigration attorney in Denver said she’s been suffering from coronavirus symptoms — although she has not been able to get a test — and nevertheless remains torn about whether to come to court. Asking for a delay would mean her clients had to remain in detention, but showing up would endanger those around her.
“We shouldn't have to make these decisions to either protect our families or to protect our clients,” said the attorney, Christina Brown. “That's really freaking unfair to put anyone in that position.”