How has the COVID-19 Pandemic Affected Immigration Appeals?

Social distancing mandates have forced courts and government administration to postpone hearings and otherwise severely curtail face-to-face activities. Many operations have been moved online. The threat of contagion has also forced the release of many detained immigrants. How is this affecting the course of immigrant appeals from a deportation order?

In most cases, the resolution of an immigrant’s case is delayed due to the pandemic. In some cases, electronic filing permits a case to move forward to the extent that it can under social distancing mandates.

Border Crossings Restricted Due to the Coronavirus

The COVID-19 pandemic has given the current administration an excuse to forward its anti-immigrant policy. First, the administration invoked the power given to the Surgeon General in 1944 to block the entry of foreigners who pose a public health risk. This effectively ended asylum by pushing asylum seekers and other migrants back into Mexico or forcing them to return to their country of origin.

In conjunction with Canada and Mexico, the northern and southern borders of the U.S. have been closed to non-essential travel.

The Response of USCIS to the Coronavirus Pandemic

Immigration advocates have called for the U.S. Citizenship and Immigration Services (USCIS) to extend filing deadlines and automatically grant extensions for any foreigner whose status is about to expire. However, the USCIS has responded with a direction for each applicant to file for an extension individually, so that cases may be examined on a case-by-case basis.

Precautions Taken by the U.S. Department of Justice to Stop the Spread of Contagion

Hearings Have Been Postponed

As of this writing (April 20, 2020), the U.S. Department of Justice has postponed all non-detained immigration and Migrant Protection Protocols (MPP) hearings through Friday, May 1, 2020. Those affected by this postponement should report to their designated port of entry on the originally-scheduled date to receive a new hearing time and date.

New Procedures for Electronic Filing and Filing By Email

The rollout of the new electronic Court & Appeals System (ECAS) is delayed due to COVID-19.

However, there are temporary email accounts for the Office of the Chief Administrative Hearing Officer, the Board of Immigration Appeals, and all immigration courts nationwide to allow electronic filing for all parties.

That being said, where ECAS is currently available, those who have opted in should continue to use ECAS to file. Where ECAS is not available or in the case of those who have not yet opted in to the system, parties may file by email following the instructions on whichever page is applicable:

• Filing by Email – Immigration Courts
• Filing by Email – Board of Immigration Appeals
• Filing by Email – Office of the Chief Administrative Hearing Officer

What to Do if Your Appeal has Been Postponed

Request an extension of time to submit any filings, and request an extension of your status if it is about to expire. Neither filing extensions nor status extensions are being automatically granted at this time. You must take action.

Coronavirus Spreads Among Immigrants in Detention

Nearly 700 detainees were recently released from U.S. detention centers due to concerns that the coronavirus is spreading rapidly through some facilities. Immigration and Customs Enforcement (ICE) is evaluating detainees’ “immigration history, criminal record, potential threat to public safety, flight risk, and national security concerns” and determining on a case-by-case basis whether they can be released. Those who are older or who have an underlying medical condition and who don’t post a flight risk or safety risk are more likely to be released.

For example, in New Jersey, COVID-19 has spread rapidly among detainees and staffers in county jails where ICE detainees are being held. The coronavirus hit the Hudson County Correctional Facility hard, and at least three staffers have died with more than 10 ICE detainees testing positive. As a result, more than 245 ICE detainees have been released throughout N.J., most with electronic ankle monitors to ensure they show up at subsequent court hearings.

Immigration attorneys are successfully filing habeas corpus petitions alleging that it is unconstitutional to detain immigrants and expose them to the coronavirus.

ICE asserts it is taking safety precautions to slow the spread of the coronavirus, locking detainees in their individual cells for as long as 23 hours a day to reduce exposure to other inmates. Those detainees who have tested positive, as well as those who have been exposed to others with the coronavirus, are quarantined.

What to Do if You are Detained

Request review of your case by ICE, and have your attorney file a habeas corpus petition to gain your release.

In conclusion, it appears that it is up to individual immigrants to exercise whatever limited remedies are available to them during this public health crisis, as there are no blanket policies or procedures protecting them or their immigration status. Consult with your immigration attorney to get help protecting yourself and your rights.

About the Author

Veronica Baxter is a legal assistant and blogger living and working in the great city of Philadelphia. She frequently works with Todd Mosser, Esq., a busy Philadelphia appeals attorney.