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March 25, 2020 - 6:55pm

While most courts scale back operations because of coronavirus, immigration court in Batavia continues with full docket

The immigration court in Batavia -- at the Buffalo Detention Facility -- hasn't been slowed by coronavirus, and that is upsetting attorneys who must represent clients there, even though court personnel may already have contracted COVID-19.

Emma L. Buckthal, supervising immigration attorney for the Erie County Bar Association, contacted The Batavian to raise concerns she and other attorneys share. She said rather than suspending the court's master calendar, as all state and federal courts have done, and even some immigration courts, the immigration court in Batavia still expects attorneys and clients to show up for hearings. There are limited provisions for telephonic appearances, Buckthal noted.

She shared a letter from an attorney who said a judge directed his clerk to instruct an attorney to fly in for a court appearance, after denying a telephonic hearing, and the clerk reportedly commented that she didn't understand why people are upset about COVID-19.

"I survived Chernobyl," she reportedly said.

This seemed particularly insensitive to the attorney, she said, because she believed that an immigration judge, an attorney, and a member of court staff have all contracted coronavirus.

While the full docket is in place, Buckthal said Immigration and Customs Enforcement (ICE) staff is denying attorneys the ability to meet with clients, which is necessary to get signatures for court papers, unless the attorneys bring their own personal protective gear (gloves, goggles, and a mask), which, she said, "we do not have and should be conserving for doctors anyway."

"We have no meaningful access to clients, so we can't adequately prepare their cases," she added. "We also can't bring witnesses to the detention center."

Telephonic appearances by attorneys can prevent newly written motions from being filed during the hearing, according to government guidelines. For example, if one attorney is present and the other isn't, and the attorney who is present files a document, then the attorney on the telephone cannot object to the document since the attorney on the phone can't review the document.

Buckthal said the court ordered one trial to go ahead with an attorney on the telephone who is quarantined and symptomatic.

"We are beyond concerned about the public health risk of this situation, and about the lack of due process for our clients," she said.

Buckthal claims that a group of detainees was transferred from the Bergen, N.J., facility to Batavia on March 12. Yesterday, ICE confirmed one detainee at the Bergen facility has tested positive for COVID-19. Today, ICE reported that a staff member at a contract facility in Elizabeth, N.J., tested positive.

The National Association of Immigration Judges, a labor union, along with groups representing prosecutors and defense attorneys, has called on the DOJ to close all immigration courts

The court is supervised by the Department of Justice. Asked for a comment, a DOJ spokesman provided the following statement:

The Executive Office for Immigration Review (EOIR) has been carefully reviewing the information available from local, state, regional, and federal officials related to the coronavirus pandemic.

The agency continues to evaluate the dynamic situation nationwide and will make decisions for each location as more information becomes available.  Through April 10, 2020, immigration courts have postponed all non-detained hearings, and some immigration courts are closed.

Updates to the operational status of the immigration courts will be announced via Twitter (@DOJ_EOIR) and Facebook (Executive Office for Immigration Review) and on our website.

Please also see EOIR’s policy memoranda: 20-10: Immigration Court Practices During the Declared National Emergency Concerning the COVID-19 Outbreak, and the 20-10 addendum, and the standing order on telephonic appearances pertaining to the Batavia Immigration Court.

We continue to urge our employees and stakeholders to follow CDC guidance regarding hygiene practices.

The detention facility and the court do not fall under the jurisdiction of the Genesee County Health Department.

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