MAY 2020 | AROUND THE ABA

COVID-19 pandemic changes everything for immigrants and asylum-seekers

The COVID-19 pandemic has thrown the nation’s immigration system into chaos — on the U.S.-Mexican border, in detention centers and in immigration courts coast to coast.

That was the conclusion of six experts at the American Bar Association webinar, “Immigration Policy and Practice During the Coronavirus Pandemic,” co-sponsored by the Commission on Immigration and the Section of Civil Rights and Social Justice.

“This pandemic really has affected every single aspect of immigration law, practice and policy,” said moderator Denise Gilman, a law professor and co-director of the Immigration Law Clinic at the University of Texas at Austin.

“There can really be no doubt that as to the enforcement side — border enforcement, detention, removal — that the responses have been, in a way, a deepening of policies that already were in a pattern of exclusion and marginalization,” Gilman said. “The newer policies have really just made that all the more dramatic, exacerbating existing problems with access to justice, violation of due process and the like.”

The ABA is deeply involved in the legal response to the crisis. On March 13, the ABA announced the creation of the Task Force on Legal Needs Arising Out of the 2020 Pandemic. Meanwhile, ABA staff at ProBAR in south Texas and the Immigration Justice Project in San Diego are working directly with immigrants and asylum-seekers.

And on April 17, ABA President Judy Perry Martinez urged the federal government to suspend all in-person immigration court proceedings and consider releasing some people from detention who don’t pose a safety or security risk.

Maintaining safe conditions inside immigration detention centers is a major problem, panelists agreed.

Dora Schriro, special adviser to the Commission on Immigration and former special adviser to Homeland Security Secretary Janet Napolitano, said U.S. Immigration and Customs Enforcement could do more to protect detainees. About 33,000 people are being held in 222 immigration detention centers nationwide, each for an average of 55 days, she said.

That is “difficult under any circumstances,” Schriro said, “and under these extra circumstances, you can imagine how terrible it is for them.” One-third of the detention centers are more than 25 miles from a hospital with intensive care beds, so it is difficult to treat detainees who are very ill with the COVID-19 virus, she added.

Testing for the COVID-19 virus in detention centers is critical, Schriro said, but ICE is far behind some states and cities that operate prisons in testing detainees. They are also far behind in releasing detained men and women so that they are not in such close quarters, she added.

Recently, Schriro said, ICE set a goal of reducing the capacity of its detention centers by 25%. “That’s not going to get us there,” Schriro said. She recommended that ICE focus on reducing admissions and the average lengths of stay, in addition to accelerating releases. “There’s so much that ICE could do to alleviate the crowding, as well as to improve the sanitation,” Schriro said.

Dr. Aileen M. Marty, an infectious disease professor at Florida International University, said detention centers should offer disinfectant wipes to detainees to reduce the virus’s transmission. They should also set up screening and triage of detainees, she said, offer personal protection equipment to staff and detainees (including surgical masks for detainees), make sure that heavily touched areas are cleaned regularly and set up special areas for detainees who have the virus.

Dealing with COVID-19 on the U.S.-Mexico border is also difficult and new policies may violate U.S. and international laws, panelists said.

Alice Farmer, a legal officer with the United Nations High Commissioner for Refugees, said there has been “a fundamental change” on the border. People seeking asylum can no longer register claims and will be immediately expelled, she said. Mexicans and some other Central Americans will be sent to Mexico, while others will be rapidly sent back to their home countries.

From March 21 to 31 alone, she said, there were at least 6,000 expulsions outside the normal immigration framework. “This is all outside of the Title 8 Immigration and Nationality Act,” Farmer said.

The coronavirus also has “dramatically affected” the immigration court system, said Fatma Marouf, a law professor and director of the Immigrant Rights Clinic at Texas A&M University School of Law.

Only cases of detained immigrants and asylum-seekers are being heard now in immigration courts, Marouf said, and different immigration courts are adopting different rules. In Dallas, for example, where Marouf is located, there are three different orders by three different immigration judges, “so it’s hard for attorneys to have a clear understanding of what’s going on,” she said.

There is similar confusion in California, said Fermin Vargas, senior staff attorney with the ABA Immigration Justice Project in San Diego. The Otay Mesa Detention Center in that city has closed its court because of the virus, Vargas said, and all filings are now being forwarded to an immigration court that usually handles cases from non-detained immigrants and asylum-seekers.

Hearings for detained people are being deferred, Vargas said, and there is no sign when they will resume. “Is their detention going to be indefinite?” he asked. If so, he added, perhaps habeas petitions in U.S. District Courts are warranted.

In closing, Vargas offered this advice to immigration lawyers: “If you do have relief that you want to apply for, make your best efforts … and file those applications as timely as possible. While there may not be immediate action on them, you do want to keep a paper trail that you made efforts to apply for relief.”

Schriro added: “Let’s remember that detainees are people. They’re behind those walls and most don’t have attorneys. It’s important for the facility to keep them informed, have them involved in their own care and treatment. They are fearful and they have reason to be. Communicating with them can go a really long way.”

Immigration Policy and Practice During the Coronavirus Pandemic” is available on demand for free for ABA members. Enjoy unlimited no-cost access to more than 575 widely accredited online programs and webinars. Additional COVID-19 programs are available for free.

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