Upheaval at Batavia Immigration Court over COVID-19 protocols reflects national call to close courts

Mar 26, 2020
Originally published on March 26, 2020 9:14 am


Siana McClean is an immigration attorney and the regional American Immigration Lawyers Association representative. She works with detainees at the Federal Detention Center in Batavia. Her drive to the court involves crossing the U.S. Canadian Border. 

But since March 16th, she hasn’t been making the trip. She's worried about the coronavirus. 

“There would be difficulty because of the restrictions at the border and of possibly having to be quarantined when I come back,” McClean says.

She says more than that, she was concerned about being in close spaces with others when officials are instructing people to social distance. 

So she made the decision not to go, which meant not attending a scheduled trial.

“Especially because one of my, one of my witnesses was going to be coming all the way from New York City. She's a 68 year old woman, who I thought would be put at risk by coming to court,” she says.

She filed a motion to adjourn, which was granted. But other attorneys have not had the same experience. 

Two days after McClean stopped showing up at court, which is at the immigration detention center, Robert Elardo with the Erie County Bar Association Volunteer Lawyers Project says his office filed a request for an adjournment for a case scheduled on March 23rd. 

"That request we found out over the weekend was denied and the reasoning in the decision was: 'So far, there’s no outbreak here,’” Elardo says. 

The decision was signed by Judge Susan Aikman the same day the request was filed.

Elardo says he was shocked. 

“There is a long waiting period up to 14 days,” he says. “People are infected before they sometimes show signs and sometimes people never show overt signs but they’re nonetheless carriers and contagious.” 

Request Denial Redacted by WXXI News on Scribd

COVID-19 is highly contagious and thought to spread most prominently by person-to-person contact. According to the Centers for Disease Control and Prevention, symptoms may appear within two to 14 days after exposure. 

Elardo, McClean, and other immigration attorneys say that measures by the court regarding the pandemic have potentially put people at risk of infections, and have raised concerns over due process. 

“The facility itself has put in its own restriction in terms of being able to have contact visits with your client,” McClean says. “And also requiring recently requiring that practitioners bring their own protective gear.”

Things like masks, and gloves. Elardo says they’ve been receiving conflicting information.

“We’re being told by public health officials and government officials that the surgical masks shouldn’t be used, you can’t even buy them, and if you have them you’re being asked to donate them to medical professionals because they need them,” Elardo says.

Elardo says while the courtroom has limited the number of people who may enter, it has only created a bottleneck.

“That just means that more people are in the small waiting room waiting to go into the courtroom and that creates a problem with social distancing,” he says.

On March 17th, The Volunteer Lawyers Project signed a joint letter with Prisoners’ Legal Services calling for the courts to adjourn hearings for four weeks over public health concerns of the coronavirus.

Then, last Friday, New York Attorney General Letitia James sent a letter to U.S. Attorney General William Barr and Immigration Judges, including Judge Philip Montante at Batavia, calling for measures to limit human contact. 

On March 24th, John Martin with the Executive Office for Immigration Review (EOIR), a federal agency that handles immigration legal cases, said in an email that all non-detained hearings are postponed through April 10th, and that some immigration courts are closed.

However, for those who are detained, court remains open. 

A recent standing order signed by Judge Montante and internal memos from EOIR obtained by WXXI News state that detainees do not need to be present for their hearings, and that telephonic appearances may be granted. However in-person hearings may still continue.

Across the country, the American Immigration Lawyers Association, National Association of Immigration Judges, and the American Federation of Government Employees Local 511, which represents Department of Homeland Security attorneys, are calling for courts to be closed

The World Health Organization declared COVID-19 a pandemic on March 11th.

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