In a memorandum dated November 8, 2021, the Director of the Executive Office for Immigration Review, David Neal, has rescinded the agency’s formal COVID-19 guidance, leaving a number of questions unanswered on how the courts will handle COVID-19 in the coming days and months.
The largest unanswered question now is whether individuals who have recently tested positive for COVID-19 will still be barred from entering the immigration courts.
Policy Memo 20-13, issued in June 2020, said individuals would not be allowed in EOIR-controlled spaces if they had “a positive test for COVID-19” or a diagnosis from a medical provider in the last 14 days. In the months that followed, EOIR repeatedly referenced this memo on its Twitter account when announcing court closures:
Out of an abundance of caution and due to a possible violation of Policy Memorandum 20-13 related to COVID-19, the Atlanta – W. Peachtree Street Immigration Court will be closed tomorrow, Dec. 18, for cleaning, consistent with CDC guidelines.— DOJ EOIR (@DOJ_EOIR) December 18, 2020
The November 8, 2021 Director’s Memo says Policy Memo 20-13 is cancelled and that EOIR “will no longer issue these formal documents” to announce its COVID-19 policies. But while it points to a recent FAQ as a source of the agency’s current policy on COVID-19, that document does not address positive tests or those who have been diagnosed with COVID-19 recently. It only says people who are experiencing symptoms of COVID-19 should stay away.
The memo also points to this “Notice of Public Health Procedures,” but it, too, is silent on whether an individual who has recently tested positive for COVID-19 should enter the court.
More Questions on EOIR Practices in Response to COVID-19 Remain
Aside from appearing to eliminate the EOIR’s ban on people with positive COVID tests from entering immigration courts, the memo raises a series of practical questions that were answered by PM 20-13. For example, that memo had listed “best practices” to minimize risk, including encouraging parties to settle cases through written pleadings, encouraging scheduling orders, and encouraging use of video and telephonic hearings.
It is unclear whether those practices are still being encouraged. Although some immigration courts have their own “standing orders” that describe local policies on COVID-19 (which are all listed here), many do not.
Another question was raised by the First Circuit Court of Appeals in late October: did the pandemic justify tolling the agency’s filing deadlines? In that case, litigated by the National Immigration Litigation Alliance, the petitioner’s appeal was due at the Board of Immigration Appeals in March 2020, but she was detained in a facility that was struggling to respond to the COVID-19 epidemic. As a result, she filed her appeal days late and asked the BIA to “toll” the deadline.
Shockingly, the BIA dismissed her appeal outright as untimely, never answering her request to delay the deadline due to COVID-19. The First Circuit has ordered that more was required.
What is Next at EOIR?
Although nationwide COVID-19 cases dropped in the Spring, the Delta variant and the loosening of COVID restrictions drove those numbers back up over the summer. Now they appear to have plateaued and experts are warning they may spike again this winter. We still see more than 1,000 deaths a day from COVID-19, and emergency rooms around the country remain overwhelmed.
At EOIR, some immigration courts are still limiting hearings and visitors to address the risk. The Kansas City court, for example, continues to cancel the large “Master Calendar” dockets and is limiting trial settings to just a few cases a week. But others are back to operating full speed. I was at the Houston Immigration Court yesterday where one judge had four separate trials involving eight immigrants on his schedule for the day. Without official guidance on positive tests, everyone involved in these proceedings is going to be at greater risk.
EOIR did not respond to a request for comment on this policy change. I’ll post again if I receive an answer.