Immigration Courts, Detention Facilities Covid-19 Rules Upheld

Challenges to the policies implemented by the federal government to prevent the spread of the Covid-19 virus in immigration courts and detention facilities were dismissed by a federal district court.

The polices include social distancing protocols, and suggest waiving in-person hearings in favor of online and telephone conferences. They also require visitors to provide and wear personal protective equipment, and require screening and monitoring.

Should it become necessary, the protocols will suspend in-person visits by lawyers in the detention facilities, but will require use of video technology, email, and messaging, so detainees may communicate with counsel.

The court lacks jurisdiction over claims that the plaintiffs aren’t likely to win, anyway, the opinion by Judge Carl J. Nichols of the U.S. District Court for the District of Columbia said.

The plaintiffs, five detainees and three immigration organizations, filed for a temporary restraining order, claiming the policies violate the Administrative Procedure Act, the Immigration and Nationality Act, and procedural due process rights. They sought a longer postponement of all in-person hearings, except bond hearings, and a requirement that the government ensure adequate teleconference capabilities.

Denying the request, the court said it didn’t have jurisdiction, because the plaintiffs are unlikely to suffer imminent injury and the INA precludes it from hearing their access to counsel and due process claims.

The plaintiffs are also unlikely to win on the merits, the court said. They didn’t point to any action that is reviewable under the APA, or show that the actions taken by the government are arbitrary and capricious, it said.

Cleary Gottlieb Steen & Hamilton LLP represented the plaintiffs.

For additional legal resources, visit Bloomberg Law In Focus: Coronavirus (Bloomberg Law Subscription).

The case is Nat’l Immigration Project of Nat’l Lawyers Guild v. Exec. Office of Immigration Review, D.D.C., No. 1:20-cv-00852 (CJN), 4/28/20.