Login | June 06, 2020

Obstacles in immigration cases discussed during pandemic

Legal News Reporter

Published: May 1, 2020

From last-minute postponements and court closures to increased difficulty communicating with clients—those are some of the obstacles immigration attorneys say they now face on a daily basis as they try to navigate the system during the COVID-19 pandemic.
Farhad Sethna, an immigration attorney in Akron, Ohio said social distancing rules and the lack of a nationwide policy for courts have created increased hardships for lawyers and their clients.
“This is an extremely frustrating time to be an immigration attorney,” said Sethna. “Things were already difficult; now they are ten times worse.”
While the Cleveland Immigration Court remains open, judges are only hearing cases involving aliens in detention and U.S. Citizenship and Immigration Services has closed its offices to the public through June 3, with all business being conducted remotely.
“These centers are responsible for processing time-sensitive applications, for example, in cases where an individual is seeking an extension to remain in the country,” said Sethna.
“Even before the closure it was impossible to contact a service center directly, now it’s even more difficult to get a response,” said Sethna. “We have to call an 800 number which is also remote and not connected to the service centers directly. When someone does answer all the person can do is send an email to the center on your behalf.”
Inna Simakovsky, an attorney at Simakovsky Law in Columbus, who represents clients across the country, including in northeast Ohio said while all citizenship interviews have been canceled, decisions are still being issued.
“These offices are deciding whether someone gets a green card or can become a citizen,” said Simakovsky.
“In cases where someone passed a green card or citizenship interview and had an oath of allegiance, they are now waiting indefinitely for their process to continue,” she said. “This limbo status can have ramifications for people, including the immigration of other family members, becoming eligible for certain government jobs or services and wanting stable immigration status.
“People whose interviews are rescheduled and are forced to move because of the crisis may not get the required notices and miss the hearings altogether,” she said.
“COVID-19 has made an already chaotic process more chaotic and there is no forgiveness built into the system,” she said. “There is no one to speak with and no consistent policy to rely on, which makes it impossible to provide answers to our clients.”
Simakovsky said many applications are being returned because the client left a line blank.
“The Trump Administration began requiring all blank lines to have an N/A written in them,” she said. “If a line is left blank without an N/A, the application is automatically returned.
“There is no one to call to straighten things out,” she said. “People are simply getting returned applications. Some of the applications are time-sensitive, so deadlines are missed, which has huge ramifications.”
Sethna said although detention hearings are still going forward in Cleveland, many courts across the country have shut their doors entirely, and in some cases, with little or no notice.
“Every day I am seeing bits and pieces of courts being opened and shuttered,” said Sethna. “Sometimes they are just open to accept filings, other times they are open for detained hearings only.
“This has complicated an already convoluted removal (previously called deportation) process,” said Sethna.
He said lawyers are no longer required to be physically present during hearings and are being encouraged to provide representation on the telephone.
Most recently, Sethna said attorneys were advised that they would have to seek advance permission if they want to attend a hearing in person. Even in cases where an attorney does appear at the court, Sethna said the lawyer might be seated in another empty courtroom and able to attend the hearing only via video.
“In my opinion, I would be doing a disservice to a detained client if I am not there in court to represent the individual,” said Sethna. “Most of my clients are not sophisticated enough to stand up for their own rights. If a judge asks a question and they do not understand it, they may give an incomplete answer that could be held against them.”
Sethna said 99% of his detained clients require a translator, who is also providing his or her services on the phone.
“If I do not show up, my client’s hearing would be conducted via a four-way connection, with the client available via a video link from the detention center to the court, the translator on a phone line and me on another phone line,” he said. “If a government attorney also opts to be available by phone you are talking about a five-way connection.
“To make matters worse, the court system has very bad video and audio signals and the connection inexplicably goes down regularly,” said Sethna. “This is not the way for me to provide zealous representation to a client.”
While all of Sethna’s hearings for non-detained clients have been postponed, he did represent a detained client at his trial in Cleveland Immigration Court on April 16.  
“The client was connected to the court via video,” he said. “Earlier that morning, the court had a great deal of difficulty connecting to the detention facility.
“The DHS (Department of Homeland Security) attorney appeared via phone and the interpreter was, fortunately, present in the courtroom.”
Preparing cases and collecting supporting documentation has also become challenging, said Simakovsky.
“Very few clients have access to scanners or printers at home and if I have to go into a detention center, I am required to provide my own face masks and protective gear,” she said.
“The intake clerk at the Cleveland court was recently laid off due to the crisis, which means no one is handling filings and paperwork,” she said. “This will make for an even bigger mess once the crisis is over.”
Sethna said he too is having problems preparing clients for hearings.
“I am choosing not to go into the detention centers for my own safety,” he said. “I am communicating by phone with my client, but there is an issue because the calls are normally monitored and recorded.
“When I reach my client, I make it clear that this call is protected by attorney-client privilege and I tell whoever is on the other end to hang up and stop recording,” said Sethna. “However, there is no way for me to know for sure if the person on the other end heeds the warning.”
In cases where a hearing is rescheduled, Sethna said he is often notified at the last minute.
“This means that I will have to go through the process of preparing the case and prepping my client all over and if I had any witnesses scheduled, they too have to be rescheduled. In many cases, those witnesses have taken time off from work or arranged for childcare and they may also be traveling a long distance.
“For instance, I had one court send out a notice at 9 a.m. that they would not be open that same day,” he said.
“I recently wrote a letter to Attorney General William Barr and several other Trump Administration officials asking that they close the immigration courts completely until the crisis is over as opposed to making last-minute decisions to open and close courts.”
Simakovsky said the confusion created by the pandemic is causing clients to remain in detention for longer periods of time, putting them at a greater risk of contracting COVID-19.
“One of my clients in detention was supposed to marry his girlfriend so he could have relief from deportation, but the wedding was not allowed to happen,” she said. “Normally this is not a problem.
“The client will probably be deported and his girlfriend will have to go to Mexico to marry him,” said Simakovsky. “Given the situation with the virus spreading inside detention centers, I believe anyone who does not have a criminal record should be released.”
With so many non-detained hearings and citizenship interviews being postponed, Sethna is predicting a major backlog, which could take months to address.
“It is an unacceptable situation,” Sethna said. “The Trump administration has rolled back the Obama-era ‘prioritizing’ of removal cases and so now everything is treated with the same urgency.
“A mother with four U.S. citizen children and no criminal history is on the same deportation fast track as an individual who has overstayed his or her visa and has a criminal record,” he said.