By Suzanne Monyak

Law360 (August 14, 2020, 7:48 PM EDT ) Immigration lawyer Eileen Blessinger gave her client, an asylum-seeker with severe past trauma, a homemade mask with green clovers on it to wear during his immigration court hearing on Tuesday, to give him the "luck of the Irish," she said.

Unable to offer even a reassuring smile at him as he faced the judge in the masked courtroom, Blessinger told her client to rub the clovers if he got nervous during the trial and promised it would be his "lucky charm."

Blessinger, who appeared at the Arlington, Virginia, immigration court outside of Washington, D.C., on Tuesday, said she had never realized how much she relied on facial expressions, both from the judge and to her client.

At one point during the Tuesday hearing, Blessinger's client began to suffer an emotional breakdown while testifying about being sexually assaulted as a child, forcing the judge to step in and ask the government's lawyer — appearing by phone and unable to see the client — to stop questioning him.

"If you're wearing a mask, you can't look over and smile at them," she said.

Blessinger's hearing was one of the many individual hearings for non-detained immigrants that have resumed across the U.S. since June, just months after the U.S. Department of Justice, which oversees the nation's immigration court system, tabled all hearings for non-detained individuals for health concerns.

However, as confirmed cases of COVID-19 creep up across the country, attorneys and immigration judges warn that the reopenings may be premature.

Some, like Blessinger, worry that mask mandates and other safety measures during the hearing itself — while key to public health — could hurt clients' cases, causing communication problems when translators can't read their lips and making it harder for judges to connect with their stories.

Others said they felt uncomfortable when masks came off during proceedings and said that the immigration courts don't appear to be wiping down surfaces between hearings.

James McHenry, director of the DOJ's Executive Office for Immigration Review, which runs the immigration courts, issued guidance in June requiring all visitors to the immigration courts to wear face coverings, but the memo did not address mask-wearing requirements for judges.

But according to Amiena Khan, an immigration judge in New York speaking in her capacity as executive vice president of the immigration judges' union, the EOIR's measures to protect the safety of court staff and stakeholders have fallen short, while judges have been given "mixed messages."

She also said that cleaning supplies or protective gear have been unevenly distributed across courts, leaving some without sufficient supplies.

A spokesperson for the EOIR didn't respond to questions about cleaning and mask procedures at immigration courts.

And while many attorneys agree that limited hearings for individuals in detention may be necessary, they called on the DOJ to rethink its decision to resume hearings on the non-detained docket as the coronavirus pandemic worsens.

"It was not a comfortable position to be in: to have to choose between public health, my own health, my family's health and my duty as an attorney to my clients," said Dree Collopy, a partner at Benach Collopy LLP who attended two hearings in Baltimore immigration court this month. "That's not a comfortable choice for any attorney to make."

Masking Dilemma

Attorneys across the U.S. told Law360 that it's not uncommon for immigration judges and attorneys to take their own masks off in courtrooms during the proceedings, even if masks are required in the court hallways.

Eliana Nader, chair of the New England chapter for the American Immigration Lawyers Association, said she had heard several reports from attorneys who appeared at the Boston immigration court that judges have asked the attorneys if they are comfortable with them taking their masks off.

"Everybody's uncomfortable because they're the judge, so everybody says yes," Nader said.

Susan Roy, a former immigration judge who now practices immigration law in New Jersey, said there are not enough courtrooms for judges to be taking off their masks, only to be replaced by a different judge in the same space at the next hearing.

Some attorneys, however, said they preferred to keep masks off during the hearing, noting that they were seated more than six feet from the judge and underscoring the importance of face-to-face interactions. But they still remained concerned about airborne virus transmission, since the hearings are often held in small, windowless rooms with less than ideal air flow.

When Collopy, who chairs the American Immigration Lawyers Association's asylum committee, arrived at her client's hearing on a Monday morning earlier this month, the immigration judge took off his mask and allowed her and the government's attorney, also there in person, to do the same.

Collopy asked if her client, an asylum-seeker from El Salvador, could take off her mask, saying that her client is quiet and already speaking through a Spanish translator over the phone. She also stressed the importance of the judge seeing her client's face when she testifies to her past persecution when deciding whether to deem her credible.

But the judge said no, according to Collopy. He also asked her if her client had recently been tested for COVID-19, a question he hadn't asked the lawyers, she said.

"I would have preferred everyone to just have that mask on the whole time from a public health standpoint," she said. But to require her client to wear a mask, and not the other attorneys, was "off-putting," Collopy said.

"I didn't understand why there was a different standard for the respondent. The masks are not to protect yourself, they are to protect other people," she said.

But the protocols appear to differ by court and even by individual judge.

Krsna Avila, special projects attorney at the Immigrant Legal Resource Center, said the "majority" of judges took their masks off during hearings for detained immigrants this past spring at the San Francisco immigration court.

"It's putting everyone's health at risk," he said. "You can't force the judge to put their mask on, but them not having it on puts the client's health at risk, and all the staff people there at the court."

Katie Vannucci, a member of AILA Chicago's executive board, said she has heard mixed reports from attorneys in the area on mask-wearing by immigration judges in the Chicago courtroom.

Matthew S. Kriezelman, a Chicago-based immigration lawyer with Kriezelman Burton & Associates LLC, told Law360 that during a recent hearing he attended at the Chicago immigration court, the judge kept a mask on the whole time.

"It was very appropriate the way they handled everything, or that judge at least," he said.

Communication Failures Persist

At the beginning of the pandemic, the EOIR threw attorneys for a loop with a constant barrage of late-night Twitter notifications about court closures the next day. The agency has since transitioned to a system of alerting attorneys of court closures by emails, but attorneys say the agency's communication throughout the pandemic leaves much to be desired.

More than half of the nation's 69 immigration courts are fully open, while just six are fully closed. The rest are only holding hearings for individuals in detention, and unless otherwise announced, will continue to do so until at least Aug. 28. The agency is generally giving lawyers around two weeks' notice before non-detained hearings resume in a certain court as part of a phased reopening.

However, with evidence typically due 15 days before the hearing, attorneys say that two weeks isn't enough time to spare them from preparing for a case that may not happen for years.

"It's not only a huge waste of time for us, but to prepare a client — I'm thinking of asylum clients in particular — to prepare their testimony where you have to re-traumatize them all over again, just to have it not go forward," said Nader.

In at least some immigration courts, the EOIR has put immigration judges on a rotational schedule to reduce the number of judges in the courthouse at one time. But attorneys say that the new schedule has resulted in long-scheduled hearings being bumped at the last minute when the assigned judge isn't on rotation that day, sometimes without any notification and after they have spent time submitting filings and preparing clients.

Nader said it's "common" for hearings to be quietly rescheduled at the Boston court, which holds hearings for immigrants throughout New England.

Attorneys and the immigration judges' union also said they wished that the immigration courts would notify practitioners when an individual who appeared at the court tests positive for COVID-19, rather than closing last-minute without explanation.

Kriezelman, the Chicago attorney, said he had a hearing scheduled for a Thursday earlier this month, but on the prior Tuesday afternoon, the court announced that it was suspending non-detained docket hearings for the day, without indicating when those hearings would resume. The court didn't reopen until Friday, he said.

"From the private bar side, we have no idea what the situation was, whether any attorneys should be quarantining or getting tested," Kriezelman said.

He also questioned whether the EOIR is holding back this information to avoid having to close or open the agency up to possible liability.

These communications challenges are compounded for immigrants without attorneys, who may not know how to call the court clerk's office to confirm a hearing time and do not have access to the attorneys' portals to check the calendar.

"If immigration attorneys who know how and where to look for information are feeling in the dark, what's happening to pro se people?" Collopy said.

Tracy Short, the newly tapped chief immigration judge, held a series of townhall meetings on Tuesday to address immigration judges' concerns about the courts' handling of the pandemic. Short told the judges that information on confirmed COVID-19 cases in the courts would go through her, and she would decide whom to inform and when courts needed to be cleaned or closed, according to Khan.

"What we heard was not reassuring," Khan told Law360. "It was a reaffirmation of their policies and protocols that are already in place, which we believe are woefully inadequate."

'No Safe Way' Forward

The challenges of holding hearings in a pandemic, and health risks to immunocompromised attorneys and clients, have prompted many attorneys to call for the EOIR to pause most non-detained hearings.

While many state and federal courts across the U.S. have looked to video conferencing services to hold hearings, the EOIR only allows attorneys to call into hearings over the phone, which attorneys say is a poor substitute for in-person interaction.

Nader said critical asylum cases that require in-person testimony should not be continuing during a pandemic.

"We do so much work to humanize our client, and to have them be half covered up, it's really hard," she said. "This is their one shot at relief in removal proceedings. It's really important, and we don't want to jeopardize public health, public safety, by having people take off masks."

Avila of ILRC agreed that the EOIR should at least give immigrants the option to push off their hearings until after the pandemic in cases that are not time-sensitive.

"In many cases, these folks don't mind waiting until it's actually safe and when the attorney can be there by their side to represent them," he said.

Attorneys also stressed that the layout of immigration courts, which often share buildings with other federal agencies and contain crowded hallways and small courtrooms, are not conducive to public health.

Sarah Owings, an immigration attorney in Atlanta, a city that has yet to resume in-person non-detained hearings, said that between the court's windowless rooms and the necessity of public transit for many immigrants, she wouldn't know how to safely reopen the city's immigration court while the virus remains.

"The way it stands right now, regardless of how it's accomplished, you're still putting people at risk by continuing to have these hearings," she said.

Khan said the union has made a series of recommendations to the EOIR, including improving air circulation in immigration courts, maximizing teleworking, requiring masks and mandating temperature checks and health screenings at the door. But their recommendations have so far gone unheeded, she said.

For some attorneys, the safety risks aren't hypothetical. In New Jersey, private immigration lawyer Raymond D'Uva and an unnamed court clerk died of COVID-19 after appearing at the Newark immigration court in mid-March, according to a recent lawsuit. The Newark court is currently fully open.

Roy, the former immigration judge and a colleague and friend of D'Uva, said the Justice Department should not be resuming operations at the Newark court right now, especially given that the New Jersey federal court isn't open.

"They've provided no safe way for the cases to go forward, protecting clients' due process rights, protecting the needs of the courts to adjudicate cases, the judicial administration of the law, and also protecting everyone's safety," she said.

--Editing by Kelly Duncan.

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