Update: The federal government announced early this week that hearings in immigration courts like Memphis have now been suspended through Friday, July 24, pushing back the reopening date at least a week from the earlier target of July 20. This article has been edited to reflect the new information.
The COVID-19 pandemic is accelerating in Memphis, but the federal government is targeting late July for reopening of the Memphis Immigration Court in Downtown.
Attorney Lily Axelrod, who represents an association of immigration lawyers, says she has contacted the local chief immigration judge several times to discuss safety precautions.
The judge hasn’t responded, she said.
Axelrod said she believes the Memphis judge in charge, Renae Hansell, is under pressure from Trump administration leadership in Washington.
“My guess would be that she is being discouraged by the folks in D.C. from sharing any local-specific information,” she said.
Efforts to reach the judge were unsuccessful on Friday. An administration spokesperson didn’t respond to inquiries about the Memphis reopening.
This reflects a deep mistrust among many professionals running in the country’s immigration courts and the administration of President Donald Trump.
Immigration lawyers, immigration judges, and even the immigration lawyers’ union say that the Trump administration’s handling of immigration court openings and closures can be life-threatening, and that the government is providing transparent data on its decision-making process.
The situation could impact not just the safety of those who visit immigration courts, but the broader health of the public.
The federal agency that runs the courts is called the Executive Office for Immigration Review, or EOIR. It’s an arm of the Department of Justice and ultimately answers to U.S. Attorney General William Barr, a Trump appointee.
In response to inquiries about COVID-19 in the courts in recent months, the agency did not make any officials available for an interview.
“EOIR takes the safety, health, and well-being of its employees very seriously,” the agency said in a statement, adding that officials follow guidance from various federal entities, including the Centers for Disease Control and Prevention.
The statement said that in the detention center courts that remained open during the pandemic, the agency is taking safety precautions such as using telephonic hearings whenever possible.
The Memphis court has held no hearings since March. It’s on the fifth floor of Brinkley Plaza, a construction site at 80 Monroe Avenue downtown. It is one of 67 immigration courts and two arbitration centers in the United States and its territories.
Working without juries, immigration judges decide which immigrants should stay in the United States and which should be deported.
More than all the immigrants to the country’s courts come from Guatemala, Honduras and El Salvador.
The Memphis Court is recently handling more than 25,000 pending eviction cases to Syracuse University’s Transactional Records Access Information Center.
Immigrants travel to the backyard of Tennessee, all of Arkansas and northern Mississippi. This makes the Memphis court a possible vector of virus transmission for the entire region, Axelrod said.
“But, meanwhile, the court system is threatening to reopen and threaten all of our public safety without being clear on what precautions they’re going to take protect us and vulnerable (immigrants),” she said.
The federal government has posted rules on the Memphis court website. Among them: everyone in a court area must wear a face mask. No one with a diagnosis or symptoms of COVID-19 can enter the courtroom area.
Axelrod says those rules are national standards, do not express Memphis, and do not answer all the questions that arise. For example, immigrants can be deported if they don’t go to court, he said. If an immigrant is rejected by COVID-19, how can that user that he or she is not deported can?
Even the reopening date of the Memphis Immigration Court is unclear.
The court closed in March and the reopening date has already been delayed several times. The administration posts openings and closures on Twitter and Facebook and through bulk emails, regularly without explanation. When Axelrod spoke to The Commercial Appeal on Thursday, he said he understood that the court would reopen on July 20.
Then, on Monday, the government announced the suspension of court hearings like Memphis until at least Friday, July 24. That means the Memphis court could open on Monday, July 27.
More delays are possible. By Thursday, a total of 10,602 COVID-19 instances had been reported in Shelby County, and day-to-day increases in new instances had peaked to date.
Meanwhile, a union representing the country’s immigration judges filed a lawsuit Wednesday opposed to the Trump administration, the administration is stifling the right of judges to speak publicly on key issues, adding COVID-19 risk to their lives and public health.
Ashley Tabbador, a Los Angeles-based immigration judge and president of the National Association of Immigration Judges, said the government had published little data on knowledge of opening and ending announcements.
“If you’re not going to calculate the percentage data and you’re not going to tell us what criteria are being used, and you’re necessarily suppressing any ability to hold the government accountable, (this) creates frustration and anxiety,” he said. Matrix “So, other people don’t trust, they’re not convinced that the company is doing the right thing.”
She said the government is reluctant to talk about national criteria for reopening the courts.
“They basically keep blocking us and telling us, well, that’s something that each and every court and every one of the oversight trials will have to decide,” he said.
She said poor decisions about reopening the courts can lead to infections and deaths. “So it can literally be a life-and-death scenario for members of our network if we don’t do the right thing to make sure everyone’s fitness gets ahead of us and that we stick to the right protocols.”
Judges, defense attorneys and prosecutors who filed in immigration courts met on March 15 to consider that it is not easy for the Trump administration to temporarily close all immigration court hearings for security reasons.
The administration shut down “unimtained” courts where immigrants can enter and pass freely, such as Memphis, but allowed the courts to operate in detention centers.
Management argued that a general remnant of all hearings can remain trapped immigrants because they simply don’t seek the release of a judge.
“EOIR is committed to ensuring that each and every foreigner in detention receives their day in court,” the government said in a statement.
The government is now reopening some of the UN custody courts it has closed. For example, the New Orleans court opened Monday to capacity, even when COVID-19 instances in Louisiana soared to more than 60,000.
Uncertainty persists for many officials.
“I’m really scared. I’m like holding on for dear life to what’s going to happen in a few weeks,” immigration prosecutor Fanny Behar-Ostrow said in late May. “I am really – like, very afraid if they start reopening our offices and make us physically have to go in. I’m hopeful that they’re going to continue to let us telework. I really don’t think that this pandemic is over, by any means.”
Behar-Ostrow is the head of the American Federation of Local Government Employees 511, a union that represents attorneys running for ICE, a role that means advocating for deportation.
She said she feared for her colleagues because small immigration courts are not prepared for any kind of social estrangement. He said he would like to see the suspension of all hearings, detained and unful halted, and does not understand why the Trump administration is trying to keep the immigration courts running.
“My guess is that it’s political. But it’s a guess. I’d rather not get into this because like I said, I’ve seen a lot of administrations. I’ve seen the pendulum swing both ways and a lot of times things are done because of political reasons,” she said.
The court where she works, in downtown Miami, is now open for detained hearings only.
Axelrod, the Memphis immigration attorney, said the administration’s willingness to keep the courts going shows an underlying political goal: keep deportation numbers high, even if that means jeopardizing public safety.
“So I think we’ve all seen that this administration does not care about human rights of immigrants or the safety of immigrants, or following the law necessarily with respect to immigrants. But I had no idea the level of contempt or apathy they had toward their own employees,” she said.
In a separate case, the American Immigration Lawyers Association and other groups filed a federal lawsuit on March 30 in Washington, D.C., on behalf of a small group of immigration detainees worried about contracting COVID-19. They asked the court to close both detained and non-detained immigration courts, other than bond hearings.
On April 13, the government responded, saying the lawsuit would “force the release of tens of thousands of aliens despite the laws enacted by Congress.”
EOIR director James McHenry argued that if the government stopped detained hearings, the government might have to do a mass release of immigrants to avoid constitutional issues related to indefinite imprisonment. And that, he said, could harm the public, because some immigrants have criminal records or pose national security concerns.
On April 24, lawyers for detainees said some judges were still insisting on dangerous in-person hearings, and that some remote hearings didn’t work well, including because some judges failed to call the detainees’ attorneys.
On April 28, U.S. District Court Judge Carl Nichols rejected the lawyers’ request for a temporary restraining order, concluding the government was already doing enough to respond to the pandemic.
The plaintiffs withdrew their legal action.
ICE spokesman Brian Cox said that to protect against COVID-19, the agency is arresting and detaining far fewer people than usual.
As of June 27, a total of 22,805 people were held in U.S. Immigration and Customs Enforcement custody in the United States, according to an ICE web site.
This is less than about 38,500 on March 1, a minimum of 41%. Many of the existing detainees were arrested through the border patrol, through non-border police through ICE, Cox said.
Of the recently arrested, 51% had a conviction for offenders, 14% had noticeable criminal fees, and 35% were arrested only for alleged immigration violations, according to ICE’s website.
Tabbador, head of the immigration judges’ union, said the pandemic revealed a long-standing challenge in immigration courts: lack of independence.
Unlike the federal judges who hear civil and criminal cases, the immigration judges don’t belong to a separate, independent branch of the government. Instead, they’re employees of the U.S. Department of Justice and the Trump administration, the same branch of government that pays immigration prosecutors.
The administration is working to decertify the judges’ union, a step that would make it much more difficult for them to speak out and oppose the government.
The Trump administration also helps make the court rules, issuing decisions in recent years that have made it much harder for immigrants to win their cases.
One of the biggest came in 2018, when then-U.S. Attorney General Jeff Sessions overturned an earlier decision by the Board of Immigration Appeals and ruled against a woman from El Salvador who said her ex-husband had repeatedly abused her physically, emotionally and sexually both during and after their marriage.
This decision, known as the “A-B issue,” has made it much harder for immigrants to download shelter applications about domestic violence or gang violence.
Even before COVID-19, appear before an immigration trial about a terrifying celebration for many immigrants.
Yoselin Alejandra Madriz-Chacón, 27, now living in Little Rock, Arkansas, briefly made the impression at the Memphis Immigration Court in February. He told the ruling that he had recently experienced a bad separation and that he had not been able to rent a lawyer. The passing sentence gave him a few weeks.
She was born in Costa Rica and brought her to the United States at the age of six on a tourist visa that later expired. She said she hadn’t been able to adjust her status.
“You never know when other people will say you have to go home,” she says. “I haven’t been there since I was six, and it’s scary, especially when you’re going through a tough time with your non-public life and you still have to face this challenge.”
In June, he said his trial had continued until February 2021 due to the coronavirus pandemic. The delay has given her time to earn more money as a painter on structure projects, and she hopes to use that source of income to rent a lawyer and return to Memphis to solve her case.
Although the court closure worked in his favor, he said he would still like to see the courts reopen and start moving again. “All of this brings anxiety to people.”
Maria Clark reports from New Orleans for The American South. Daniel Connolly writes for The Commercial Appeal. Reach him at 529-5296, [email protected], or on Twitter at @danielconnolly.