Title Image Mitch Lensink
Written by Kevin Heffernan in coordination with ECBA Volunteer Lawyers Project

“A disaster waiting to happen.”

Working with our friends and partners at Volunteer Lawyers Project (VLP), and their partners at Prison Legal Services (PLS), we’d like to shed some light on what is happening at the Federal Detention Facility in Batavia. Attorneys, detainees and staff are being put at risk of spreading the COVID-19 virus due to the current requirements of attorneys and organization of court proceedings.

“This situation is a disaster waiting to happen,” says Gretchen Gonzalez, VLP’s Deputy Director. The fear is that with detainees being in such close contact with one another inside the facility, the constant arrival of new detainees and the attorneys who must intake them on site puts the entire facility’s population at risk for a rapid spread of the illness.

“The Detention Facility houses non-citizens while they await their deportation proceedings. We encounter people who have a criminal record, people who were detained after years of being undocumented in the country, and others who’ve overstayed their visas. The Facility also houses people who’ve presented themselves legally for asylum at the border, and later were transported here due to bed space” says an attorney from VLP.

The attorney was quick to point out that the Batavia facility usually goes out of its way to provide access to counsel to the detainees. None of VLP’s clients have had any out-of-the-ordinary complaints as it has been reported in other jurisdictions. All things considered, the Batavia facility is a good one compared to others with fair rulings. It’s the current court operations and rules in place for speaking with clients and representing them in person that VLP and PLS would like to see changed in order to protect the health and safety of their clients.

In a nut shell, they are not complying with any of the social distancing or capacity issues and making it even harder for attorneys, arriving with their own Lysol wipes every day, to represent their clients. The center, managed by Immigration and Customs Enforcement (ICE) and Department of Homeland Security (DHS), have neither closed down the court nor stopped taking people into the facility which means attorneys still must arrive to visit clients. In Batavia and elsewhere in the country, the continuous influx of new detainees, and therefore the attorneys needed to intake them to ensure their legal rights are being upheld, and the staff required to enter the facility daily are leading to a very dangerous situation for everyone involved.

If you also believe changes should be made to these procedures and rules before disaster strikes, please contact both of your state’s Senators.

New protocols are in place, but they do little to limit contact and prevent the spread of illness. Below, find observations from VLP’s attorneys on Wednesday March 18, 2020 on the situation inside the Batavia Immigration Court:

VLP ATTORNEY TEAM OBSERVATIONS

 

  • The Batavia Immigration Court proceeded as scheduled. There were 22 cases on today’s docket. All people who had a hearing today were detained at the Buffalo Federal Detention Facility (BFDF) except for one person who is detained at Chautauqua County Jail.
  • BFDF is only allowing their staff, DHS personnel, court personnel and attorneys into the facility. Personal visits have been cancelled for the time being. An attorney reported that when he arrived to the facility, the gate officer asked if he had anyone in the car with him. This attorney reports that he was told that witnesses would not be allowed into BFDF even if going to court.
  • DHS contacted a VLP attorney on Monday and asked for her position in waiving her client’s appearance at today’s hearing. This is the client who is detained in Chautauqua County Jail. DHS informed the attorney that if they transported her to BFDF for her hearing, the County Jail would not take her back. The attorney agreed with this provided DHS would not oppose a continuance for the submission of the client’s application because the attorney was planning on asking the client to sign it while she was at BFDF. The Judge reset her case completely.
  • At the beginning of her docket, the Judge indicated that someone had bleach-cleaned all the surfaces in the courtroom. Other than this the Court proceeded almost as usual. An attorney reports that no special precautions were taken today. Two attorneys reported that the only difference was that instead of calling all the respondents on the docket into the courtroom as is usual practice, the Judge only called up to six people at a time.
  • When respondents were called into the courtroom, they all had to wait for their cases to be called. They were in the same room as the Judge, her clerk, DHS, the correction officer and the defense attorneys.
  • One precaution was that the Judge was not scheduling cases for merits hearings. Instead, when a case was ready for trial, she was resetting them to “control dates” in mid-April.
  • An attorney reports that at the beginning of the docket, the Judge allowed the clients to sit a little farther apart from defense counsel. This did not last long. Towards the end, respondents were sitting in the chair next to defense counsel.
  • Our capacity to meet with clients has declined. Attorneys can only meet with clients in the “no contact” rooms at BFDF. These rooms have no telephone, so it is impossible to communicate with clients who do not speak Spanish or English. There is currently one room with access to a telephone. This is called the “partition room” and it is a “semi-contact” room wherein attorneys can also deliver documents to clients. Everyone who needs to call an interpreter or obtain a signature on a document uses this room. It is hard to estimate how many people have use this room each day.
  • Deadlines have remained unchanged. So far, we’re continuing to comply with deadlines but this is taking longer given that there’s only one room with semi-contact to our clients. We do have the option of requesting a continuance but it is unclear how soon will these be adjudicated.

 

  • Of particular concern was that while on the bench, an attorney reports that the Judge complained about another attorney from the private bar who did not appear in Court today. That attorney had previously filed a motion to appear telephonically and the Judge denied it. The Judge reset this case only to next Wednesday, March 25 and instructed her clerk to call the attorney and tell them that they had to personally appear in Court next Wednesday. It is unclear where this attorney would be traveling from to go to Court.

LETTER TO ASSISTANT CHIEF IMMIGRATION JUDGE AND DEPARTMENT OF HOMELAND SECURITY

VLP has shared with us the letter that they sent to Assistant Chief Immigration Judge Philip Montante Jr., Stephanie L. Kerr, Acting Court Administrator, Batavia, NY, and Department of Homeland Security, Office of Chief Counsel, Batavia, NY urging them to consider changes to the procedural rules that will protect clients immediately, and push work out passed the perceived height of the virus.

LETTER’s FIRST PAGE BELOW
FULL PDF HERE

LETTER’s FIRST PAGE BELOW
FULL PDF HERE

FULL LETTER TEXT BELOW:

March 17, 2020 

Assistant Chief Immigration Judge Philip J. Montante, Jr. Office of the Chief Immigration Judge Batavia Immigration Court 4250 Federal Drive, Room F108 Batavia, NY 14020 

Re: Urgent request for changes in the Batavia Immigration Court in response to the COVID-19 outbreak 

Dear Honorable Judge Philip J. Montante, Jr.: 

We write on behalf of Prisoners’ Legal Services of New York (“PLSNY”) and the ECBA Volunteer Lawyers Project (“VLP”) – who collectively provide free legal representation to all indigent non-citizens in the Batavia Immigration Court – to urge Your Honor to immediately implement the following changes at the Batavia Immigration Court in response to the COVID-19 outbreak.1 These changes are necessary to safeguard the health of our employees and clients, in addition to courtroom staff, opposing counsel, detention center personnel, and the surrounding Western New York community. The threat to human safety is not theoretical. It is real. A staff attorney from one of our programs has already been quarantined due to exposure to someone who tested positive for COVID-19. 

  1. Cancel all master calendar hearings for a four-week period, and allow bond and merits hearings to proceed only with attorney approval 

As Your Honor is no doubt aware, Governor Cuomo has enacted a regional shutdown of New York State which began at 8 p.m. yesterday,2 while President Trump issued guidelines yesterday afternoon advising against gatherings of more than 10 people.3 These drastic policies have been enacted to minimize human contact and thereby reduce the rapid spread of COVID- 19, in accordance with guidance from the Center for Disease Control (“CDC”) and with the emerging medical consensus that “social distancing” is required to prevent additional COVID-19 infection.4 As part of this state- and nation-wide strategy to minimize human contact, the New York State Unified Court System has issued new protocols under which all “non-essential functions” are suspended until further notice.5 The New York State policy cancels all new trials and provides that arraignments be conducted remotely by video or at places “designated as arraignment sites where persons believed to be at medical risk related to the coronavirus will appear remotely by video.”6 Federal courts in New York State have issued similar guidance, including the Western District of New York, which has effectively cancelled hearings for a period of 60 days.

We urge Your Honor to follow these prudent policies and cancel all master calendar hearings for a period of four weeks. As Your Honor is well aware, master calendar dockets in the Batavia Immigration Court are very busy and often result in a packed court waiting room filled with attorneys and family members. Promoting such large gatherings is dangerous and so the Batavia Immigration Court master calendar docket should be immediately discontinued. 

We recognize that our clients are detained, and that a full closure of the Batavia Immigration Court would result in the additional detention of our clients. As such, we recognize the continued need for merits and bond hearings in some instances, both of which may result in release from detention and the amelioration of health risks to detainees. But we respectfully request that the Court allow such hearings to proceed only with the approval of the attorneys involved. Such a policy is necessary to safeguard the health of PLSNY and VLP attorneys in light of the significant safety concerns involved with appearing in the courtroom in close proximity to other attorneys and courtroom personnel; visiting detained clients; and arranging for the transportation of out-of-town witnesses to Batavia to appear in court, all of which impose a grave risk to the safety of our staff. 

  1. In making the decision to set bond and/or release an individual on his or her own 

recognizance, consider the vulnerability of the person to COVID-19 

COVID-19 is a serious disease, ranging from no symptoms or mild ones for people at low risk, to respiratory failure and death in older patients and patients with chronic underlying conditions. “People in the high-risk category for COVID-19, i.e., the elderly or those with underlying disease, are likely to suffer serious illness and death. According to preliminary data from China, 20% of people in high risk categories who contract COVID-19 have died.”

In light of the heightened risk of illness or death for these vulnerable populations, we respectfully urge Your Honor to immediately institute a policy under which Immigration Judges conducting bond hearings must consider the age of a detainee, as well as his or her underlying medical conditions, in assessing whether the detainee should be released from detention on bond or on his or her recognizance. Such a policy would promote the safety of vulnerable detainees and would greatly help to minimize COVID-19-related deaths in immigration detention.

  1. Allow for the telephonic appearance of attorneys without motion 

If the Court does continue operation, we urge Your Honor to allow attorneys appearing in Batavia Immigration Court to appear by telephone to minimize unnecessary and potentially hazardous human interaction. To facilitate such a policy, we respectfully request that Your Honor temporarily suspend the Immigration Court Practice Manual’s requirement that motions be filed 15 days before a hearing, since such a requirement is wholly inappropriate in the rapidly changing COVID-19 situation. In addition, we urge Your Honor to provide a means (whether via email or phone) for attorneys to easily communicate with the Court to facilitate telephonic appearances. 

  1. Allow for continuances due to difficulties in client meetings 

In addition, if the Court does continue operation, it should allow for continuances based on the significant logistical difficulties currently involved with visiting detained clients in the Buffalo Federal Detention Facility (“BFDF”) as a result of the COVID-19 outbreak. 

On Friday, March 13, 2020, Jeffrey J. Searls, Assistant Officer in Charge of BFDF, informed PLSNY and VLP via email that in-person legal visitations at BFDF have been temporarily suspended, and that all visits must be conducted in the only “no contact” visit room available at BFDF.9 As Officer Searls noted in his email, “ICE recognizes the considerable impact of temporarily suspending personal visitation but has determined it necessary to temporarily suspend such visitation in order to maintain the safety and security of its detention facilities, its employees, and those detained in its custody.”10 Officer Searls also noted that ICE was exploring the possibility of video or telephone legal calls but that no such policy was currently implemented.11 

These policies, while commendable for the health and safety of detainees, will result in serious delays in client visitation, which will make it extremely difficult for PLSNY and VLP to adequately prepare for court hearings. We therefore urge Your Honor to issue guidance allowing for Immigration Judges to take these logistical issues into account in granting continuances. 

* * * 

1 We are writing with respect to the Batavia Immigration Court given our organizational presence in this Court, but our requests can and should be extended to the Buffalo Immigration Court for the reasons stated in this letter.
2 https://twitter.com/NYGovCuomo/status/1239558725528178689
3 https://www.politico.com/news/2020/03/16/trump-recommends-avoiding-gatherings-of-more- than-10-people-132323
4 https://www.cdc.gov/coronavirus/2019-ncov/downloads/community-mitigation-strategy.pdf
5 https://www.nycourts.gov/whatsnew/pdf/Updated-Protocol-AttachmentA3.pdf
6 Id.
7 https://www.nywd.uscourts.gov/sites/nywd/files/Court%20Operations%20Under%20COVID- 19_signed.pdf
8 Declaration of Dr. Robert Greifinger ¶ 5, Dawson v. Asher, No. 2:20-cv-409, Docket No. 4 (W.D. Wash. March 16, 2020).
9 Email from Jeffrey J. Searls, March 13, 2020.
10 Id.
11 Id. 

We thank Your Honor for your attention to this letter and to your efforts to preserve the health of persons appearing before and working in the Batavia Immigration Court during these difficult times. 

Very truly yours,

 

Karen L. Murtagh
Executive Director
Prisoners’ Legal Services of New York 

Robert M. Elardo
Executive Director/CEO
ECBA Volunteer Lawyers Project 

cc: Stephanie L. Kerr, Acting Court Administrator, Batavia, NY
cc: Department of Homeland Security, Office of Chief Counsel, Batavia, NY