The coronavirus is causing unprecedented disruptions to nearly every area of life, and the Immigration Courts are no exception. The courts were already in a post-apocalyptic era, with over one million cases in the backlog, and now the situation has been thrown into near total chaos. The fundamental problem is that EOIR–the Executive Office for Immigration Review, the office that oversees Immigration Courts and the Board of Immigration Appeals–is determined to continue adjudicating cases, even if that means risking the lives of its own employees; not to mention the lives of respondents, witnesses, and lawyers (and anyone who comes into contact with them).

EOIR is closing and re-opening various courts seemingly at random, often times with an after-hours Tweet, such as one last night at 9:23 PM, declaring that the Newark and Seattle Immigration Courts will reopen today for purposes of accepting filings and litigating detained cases (non-detained cases through April 10, 2020 have been postponed). In reaction to this latest news, Susan G. Roy, an attorney and former Immigration Judge (and my friend from law school – Hi Sue!) wrote last night–

NJ has the second highest number of corona virus cases in the nation, second only to NY. The Newark Immigration Court was closed because someone tested positive for the virus. Now a DHS attorney is fighting for his life in ICU, another attorney is very ill, and an interpreter has tested positive. These are the ones we know about. The Court was set to reopen on April 12. That is a reasonable time to ensure that everyone is safe and that the risk of transmission is limited. How is it even remotely reasonable to decide to open TOMORROW? Even if it is only for filings, court staff and others will be forced to violate the Governor’s Executive Order [directing all residents to stay at home], put themselves at great risk, and risk contaminating others, while many people who work in the same building remain under mandatory quarantine. You are ruthlessly jeopardizing the lives of your own employees, not to mention the public, for no legitimate reason.

And it’s not just advocates who are upset about EOIR’s decision-making. The National Association of Immigration Judges (“NAIJ” – the judges’ union) and ICE attorneys are also reacting with anger. In response to EOIR’s tweet reopening the courts in Seattle and Newark, NAIJ responds, “Putting our lives at risk, one Tweet at a time.” And Fanny Behar-Ostrow, an ICE prosecutor and president of AFGE Local 511, says of EOIR: “It’s like insanity has taken over the agency,“

The gravity of keeping courts open is reflected in one incident, described in a recent letter from the Association of Deportation Defense Attorneys in New York–

One of our members recently had a detained master calendar hearing scheduled for this past Friday, March 20, at the Varick St. Court. In order to prepare the bond application and for the master, the attorney and his staff met with the client‘s mother. A request for a bond hearing, together with the required relief applications, and a request for a telephonic hearing, were hand delivered to the Court at noon on Wednesday March 18th, 2020. The attorney did not receive any response to the motion for a telephonic hearing, and repeated calls to the court that day and the next went unanswered. To ensure that the Court was aware of the request, the client‘s mother retrieved from the attorney‘s office, Thursday evening, a letter to the court confirming the request for a telephonic hearing. She traveled to the court in Manhattan, from Long Island, and delivered the letter to the Clerk, and thereafter waited in the waiting area with family members of other detainees and other attorneys who were compelled to appear. 

Today we received confirmation the client‘s mother has been diagnosed with COVID–19 virus, through medical testing. Can you imagine the number of people she came into contact with as the result of the decision to keep this court open? In addition to exposing the attorney and office staff, she traveled from her home on Long Island, on the Long Island Railroad, to Penn Station, from there to the subway and ultimately to the Court. Undoubtedly she came into contact with, and exposed, countless numbers of people, who in turn exposed countless others. 

Anyone with a basic grasp of the fundamental principles of epidemiology – easily garnered from watching CNN or the local evening news – understands how easily this virus spreads. Given this, the decision to continue to keep the courts open can only be construed as a conscious decision on the part of EOIR to subject our Immigration Judges, court staff, interpreters, DHS attorneys, institutional defenders, members of the private bar, our clients, their families, and all whom they come into contact with, to an unreasonable risk of infection, serious illness and death.

NAIJ echoes this sentiment: “With [New York] the epicenter of the virus, DOJ is failing to protect its employees and the public we serve.”  

The appropriate path forward is painfully obvious. EOIR should immediately close all courts for all cases. Staff should work remotely when possible to re-set dates and adjudicate bond decisions (so non-criminal aliens who do not pose a danger to the community can be released from detention). That is the best way to protect everyone involved with the Immigration Court system and the public at large.

Finally, I think it is important to name names. The Director of EOIR is James McHenry. I have never been a fan. Mr. McHenry was profoundly unqualified for his job, having gone from supervising maybe half a dozen people in a prior position to overseeing thousands at EOIR. However, he was politically aligned with the goals of the Trump Administration and he got the job. I have previously described the functioning of the agency during Mr. McHenry’s tenure as maliciousness tempered by incompetence. But these days, it is more like maliciousness exacerbated by incompetence. And in the current crisis, incompetence can be deadly. It’s time for Mr. McHenry and EOIR to do the right thing: Close the courts now.

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The Executive Office for Immigration Review (“EOIR”) recently announced a new way to check case status on-line. The system provides information about cases that are (or were) pending before the Immigration Courts and the Board of Immigration Appeals. According to the EOIR press release–

The automated case information application allows users to receive the most recent information about a case after inputting a unique alien registration number. Available information includes next scheduled hearings, decision information at the immigration court and Board of Immigration Appeals (BIA) levels, and court and BIA contact information. Immigration courts’ operating statuses are also included.

The new portal can be found here. By entering your Alien number, you can view your case information in English or Spanish. This new system is similar to the old EOIR telephone hotline (which still works–you can call 800-898-7180 to obtain information about your case). The online system provides similar information to the hotline, but in written format.

Overall, I like this online system better than the telephone hotline. It is more convenient and faster to use. It also includes some helpful information that the hotline does not provide, such as better court contact information and news about court closures (at the bottom of the portal home page). That said–and I hate to look a gift horse in the mouth–I do have a few quibbles with this shiny new toy (shocking, I know).

First, and maybe most significantly, when you enter your Alien number and go to the page with information about your case, you will see your full name displayed at the top. This makes me nervous. Maybe I am old fashioned, but I don’t like seeing my asylum-seeker clients’ names displayed for all the world to see (not to mention their A-numbers and information about their cases). I worry that information like this should not be so publicly available.

To be fair, you can’t access this information without the person’s A-number, and when you call the EOIR hotline, you can obtain essentially the same information already. It’s just that having this information available in written format somehow seems less secure. Also, because the online portal is so much faster than the telephone hotline, it’s not difficult to enter one A-number after another and get information about lots of random people. This is particularly easy since A-numbers are assign sequentially. So if you know one person’s number, you can change it slightly and find other (random) people’s names and numbers. Whether this information could be used for nefarious purposes, I do not know, but given the human capacity for mischief, I imagine it is a possibility.

Perhaps a partial solution here is to provide less information about the alien–maybe just the person’s initials. Whether that would provide much protection against bad actors, I am not sure, but it seems safer than displaying the full name. Another possibility would be to require users to enter their Alien number and their name in order to access the system. This would at least make it more difficult to gain access to random people’s information. 

A second quibble is that the portal does not distinguish between removal, Withholding of Removal, and relief under the Convention Against Torture (“CAT”). In each case, the decision information will indicate that the person has been denied relief (in contrast, where a person has been granted asylum or a Green Card, the system will indicate that the Immigration Judge “granted the application”). This is the same information that is provided through the telephone system. Having talked to some government techies, I know it is not always possible to obtain more specific information from existing databases, but it would be helpful to know whether a person has been denied all relief or has been granted Withholding or CAT.

A third issue is that the online system does not provide any information about the Asylum Clock. This is surprising, since the telephone hotline does give information about the clock. For some asylum applicants, it is possible to get clock information from USCIS by entering the asylum receipt number (not the Alien number) here. But given this fancy new online system, it’s too bad that clock data is not included as part of the package.

Finally, and this is perhaps an unfair criticism, it seems to me that EOIR could do a lot more with this website. For example, it could include contact information for the relevant DHS office (you can find that separately here). It could indicate whether biometrics are current. Each individual Immigration Court has its own webpage (which you can access here) with information about office hours, staff, parking, and more. It would be nice if the portal provided a link to the relevant court’s webpage. Maybe it could also include links to local pro bono resources and to the Immigration Court Practice Manual. And if we’re really ambitious, it could include information about how to submit a complaint against an adjudicator, other court personnel or an attorney. Dare to dream.

One last point–the new portal is only useful if people know that it exists. Instead of all the mumbo jumbo on the Notice to Appear and the Immigration Court scheduling order, why not include a prominent (and I mean **PROMINENT**) link to the new online system? This new system is not bad (despite my kvetching) and it would be great if more people learn about it.

These days, anything resembling a positive development in immigration world should be celebrated. EOIR’s online portal is a helpful tool for immigrants and their advocates. I hope EOIR will continue to upgrade this system to make it more secure and more useful for us all.

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EOIR–the Executive Office for Immigration Review–has proposed a fee increase for applications before the Immigration Courts and the Board of Immigration Appeals (“BIA”). The new fees purportedly reflect the cost of adjudicating the various applications that EOIR reviews, and include the following–

• Increase the fee for Form EOIR-26 (Notice of Appeal from a Decision of an Immigration Judge) from $110 to $975.
• Increase the fee for Form EOIR-29 (Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer) from $110 to $705.
• Increase the fee for Form EOIR-40 (Application for Suspension of Deportation) from $100 to $305.
• Increase the fee for Form EOIR-42A (Application for Cancellation of Removal for Certain Permanent Residents) from $100 to $305.
• Increase the fee for Form EOIR-42B (Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents) from $100 to $360.
• Increase the fee for filing a motion to reopen or reconsider with the immigration court from $110 to $145.
• Increase the fee for filing a motion to reopen or reconsider with the BIA from $110 to $895,

Also, the new fees include a $50 fee for asylum cases filed with the Immigration Court (I wrote about this previously after USCIS proposed a similar fee for asylum cases filed with that agency).

As you can see, the new fees are significantly higher than the current fees. EOIR Director James McHenry justifies the fee increase as follows–

The proposed fee increases are marginal in terms of inflation-adjusted dollars and would mitigate the significant taxpayer subsidization of these forms and motions. EOIR is long past due for a review of its fee-based filings, especially as its caseload and costs have increased substantially since 1986.

As usual, Mr. McHenry’s comments reflect his lack of compassion for vulnerable immigrants, not to mention his tenuous grasp of reality. A 900% fee increase for BIA appeals is certainly not “marginal,” and will likely preclude many people from exercising their right to due process of law. Sadly, though, the rights of immigrants have never been a priority or a concern for Mr. McHenry, at least as far as I can tell, and so his comments are hardly surprising.

Now, to be fair, EOIR has not increased fees for 30 years, and so a review of current fees is overdue, and a reasonable fee increase could certainly be justified. Let’s take, for example, the most impactful of the new fees, the fee to appeal an Immigration Court decision to the BIA. The current fee is $110. According to EOIR, had this fee been adjusted for inflation (starting in 1986), it would be $252.63 in today’s dollars. So in that sense, the current fee is less than it should be (whatever that means). The new proposed fee of $975 is nearly nine times the current fee, but “only” about four times the adjusted-for-inflation fee.

Also, a fee waiver may be available for those who need it, using form EOIR-26A. This form (at least in its current iteration) is fairly simple, and seeks information about the applicant’s income and expenses. It’s not clear how much evidence is needed to support the contentions in the form, but given the wide latitude of adjudicators to grant or deny a fee waiver, it seems to me that the wise applicant will include significant supporting evidence (which may require a lot of work). Pursuant to the regulations, EOIR has the “discretion” to grant a fee waiver. However, the regulations also indicate that, “if the fee waiver request does not establish the inability to pay the required fee, the appeal or motion will not be deemed properly filed.” Does this mean that an appeal filed along with a fee waiver will be rejected if the fee waiver is denied? Will EOIR provide some type of notice, so that applicants can raise the fee and pay for their appeal? How much time will EOIR allow to pay the fee? It’s hard to be optimistic about any of this, given that the whopping new fees seem purposely designed to dissuade applicants from pursuing their rights before the Immigration Courts and the BIA.

Finally, EOIR’s main justification for the new fees is that costs for the agency have increased, and raising fees will help cover EOIR’s expenses and protect tax payers–to the tune of about $45 million per year. To come up with their numbers, EOIR completed a study where they looked at who adjudicates the various applications, how long it takes, and how much it costs (taking into account salaries, but not other expenses such as overhead or employee benefits). How accurate is this study? I have no idea. Different appeals, for example, require very different amounts of work. Some appeals are simple; others are complicated. But even assuming the new fees accurately reflect EOIR’s expenses, I think that fee increases of this magnitude are unfair for two main reasons.

First, EOIR’s justification for these fees is a con job. They talk about the expenses of immigrants, but not the contributions of immigrants to our society. The Trump Administration tried this trick at least once before, when it suppressed a study showing that refugees contribute more to our economy than they take, and instead released a distorted study, listing only the costs of helping refugees. You simply can’t separate out the costs of maintaining an immigration system from the benefits we as a nation derive from that system. Yet that is what EOIR is doing here: Director McHenry decries the expenses to the system, but we learn nothing about how immigrants contribute to our economy (and the weight of the evidence indicates that immigration benefits our economy).

Second, in its mission statement, EOIR indicates that it “is committed to providing fair, expeditious, and uniform application of the nation’s immigration laws in all cases.” How can it fulfill this mission if the people before the Immigration Courts and the BIA cannot afford the relief to which they are entitled? To have a functioning legal system, people in our country need access to courts–civil courts, criminal courts, and immigration courts, among others. Our’s is not (and should not be) a nation where you receive only the justice you can afford. Non-citizens who live in our country should not be an exception to this rule. Or, as the indefatigable Paul Wickham Schmidt writes—

Correcting errors on appeal is probably one of the most important functions the Government performs. That’s particularly true when the public segment “served” is generally limited income individuals and the getting results correct could be “life determining.”

At this stage, the new fees are proposed, but not yet in effect. The public can submit comments about the proposal, and perhaps that will cause EOIR to modify its plan. To submit comments, see page 2 of the proposed rule.

Make no mistake, these proposed fees are another attack on immigrants, justified with half truths, and implemented because immigrants are too vulnerable to fight back. All people of good conscience should continue to resist these terrible policies, which directly impact our non-citizen neighbors, but which, in the end, harm us all. 

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