NOI 48: Coronavirus (COVID-19) and U.S. Immigration

In today's episode we review the response to COVID-19 in U.S. Immigration Courts and among immigration enforcement in the U.S.

Jacob Tingen: Welcome back Nation of Immigrants. It has been a while. Today we’re going to jump in and talk about COVID 19, the coronavirus pandemic and its impact on US immigration, our immigration court system and immigration enforcement. So let’s get started.

Announcer: You’re listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Announcer: A podcast about US immigration law with your host Jacob Tingen.

Jacob Tingen: All right, so like I said, we would be talking coronavirus and first of all, I mean, what’s going on is part of what has prompted my delay in broadcasting lately. You see where a lot of industries and areas of the country are being shut down. A lot of courts are closing, those kinds of things, to prevent the spread of coronavirus. We’ve seen a lot of resistance from that in our immigration court system and so that has kind of slowed my ability to get to doing this. You’ll see that I’m actually broadcasting from home. This isn’t my normal backdrop. This is a bookshelf here in my house and it took me a little bit to get set up with my camera and mic here in my home office and I’m lucky to have one. I know that. But also, even though that’s the case, I’m still going into work about once a week.

Jacob Tingen: We’re on a rotation with my partners now at the office just to stay open for the coronavirus for kind of necessary reasons. Here in Virginia, the governor, Governor Northam has issued an order, a stay at home order encouraging people to telework as possible. Law offices are considered essential to the point that they can stay open. And so we are staying open on a limited basis. So we’re closed two days out of the week. We’re open three days out of the week. And fortunately we’ve been able to hold on to all of our staff and keep them on and keep them employed. And we’re working with our clients and hope to be able to continue to operate.

Jacob Tingen: But what’s interesting is, and again, I’m going to be talking about this today, is why we’re still busy, even though things have slowed down. And one of those things is, is that the courts have not just said, “Hey, we’re closed.” And although lately they are, I think, kind of giving in, I guess to the idea that the courts are going to have to be closed for certain reasons. Even today though, immigration courts, they’re still open for detained hearings, which is good, right? We don’t want people to stay detained. But at the same time, there’s a lot of concern about whether or not we should take measures to release a lot of currently detained immigrants. Remember that immigration jails are civil jails and they’re being held for civil violations. So a lot of the immigrants that are in these immigration jails aren’t there necessarily because they committed a crime, although some are, right?

Jacob Tingen: They first encountered our criminal justice system and then got into immigration detention. But some of them are just there for immigration violations. And so the idea is should they be in these close quarters situations where they might contract a virus where they can’t escape, where they can’t social distance for civil violations? And so that’s a moral quandary that people need to look at and think about. I’m in favor of releasing, generally releasing people who are only being held due to civil violations. So we’ll see how that plays out in immigration detention here in the next couple of months as we see how everybody reacts to this pandemic. But what’s interesting is that as I’ve had some individual hearings, I’ve had three that are scheduled between April and May. And so it was a bit of an open question as to whether I would need to represent these people at these hearings or not or if these hearings would be canceled.

Jacob Tingen: And so additionally, for a lot of these people, filings are due 15 days prior to the hearing or for some of the newer judges a month before the individual hearing. And so even though everything around me was closing around, I had to juggle this court schedule and figure out what I needed to file and what I didn’t. And it created a bit of a headache for me. And I’m sure many other practitioners who didn’t receive clear instruction from the courts as to whether or not they’d be open. The initial reaction from the immigration courts is fascinating and kind of, I’m going to use the word sad. I mean just sad. So there is an Immigration Judges Union and the union encouraged judges to set up, well to put up signs from the CDC warning people about social distancing and coughing and those kinds of things.

Jacob Tingen: And ask them, “Hey, why don’t you go ahead and put these signs up in your courtroom?” The initial response from the Trump administration and from the Chief EOIR Judge, the EOIR is the Executive Office for Immigration Review. So for the chief judge for the immigration courts was to send out, I don’t know if it was an email or some kind of official communication where he said, “Hey, you don’t have authority to put up these signs.” And then the response from the community was all like, “Are you kidding me? We’re in the midst of a global pandemic and you don’t want me to put up signs informing people to protect themselves and to protect me. I can’t take these proactive steps to make my courtroom safer.” So, that’s mind blowing. Why would we have a problem with that? And then, the Immigration Judges Union, [inaudible 00:00:05:33], which typically represents the private bar and a lot of these things.

Jacob Tingen: And then DHS attorneys came together and said, “Hey, we don’t like what’s happening. Please clarify the court’s position in terms of its COVID 19 response.” And eventually a policy memorandum was issued. And what’s really just something I struggle with right now is this policy memorandum, it just came off in a totally condescending manner where it said that practitioners and judges are well aware of the tools available to them. And it mentioned all of these flexible things that judges could do to manage their docket and that they could do in conjunction with attorneys.

Jacob Tingen: But the problem is, is over the past couple of years, due to the Trump administration’s push to be hard line on immigration is a lot of these flexible things were removed or judges or practitioners either got the message or were explicitly told, “Hey, these are no longer options. These flexible options just aren’t really options.” And so then for them to come out with a policy memorandum and say, “Oh, these are your options,” seems a little bit disingenuous and I didn’t care for the tone of the memorandum. But I’m definitely grateful that it was issued and grateful that it gave specific instruction.

Jacob Tingen: So, I get that government agencies are balancing a lot of concerns right now and I understand that. Yeah. So take that however you want it. So the immigration courts are still in a bit of flux and limbo. They’re still doing detained hearings. And I think there is some flexibility in terms of letting attorneys attend via teleconference. But it’s just not clear to me if that’s the case for all hearings or some hearings or what flexibility measures will be allowed and which ones won’t. So we’re just going to have to see. But again, that’s kind of contributed to my delay in posting some of these videos. Other things that I’ve been reading about the coronavirus response from the government, at least in the area of immigration, some are kind of funny, some are a little more heartening and some are really sad, like the immigration court asking judges to take down signs in their courtroom.

Jacob Tingen: Not cool. Right. So let’s talk about some of these. So one of the things that I thought was a little more heartening is that ICE publicly said, “Hey look, we’re not going to push enforcement for non-criminal immigrants.” And so they’re only going to be enforcing, doing immigration enforcement against people who they truly believe to be dangerous to the community. People with criminal records or who they believe have committed crimes and those kinds of things. Which begs the question, why have you been doing immigration enforcement against people that you don’t think have crimes? That was the idea when Trump became president and the administration started enforcing its policy priorities was that everyone’s a priority and every immigrant is a criminal immigrant. So for them to come out and admit not all immigrants are criminal immigrants, it’s just kind of like what? So now you’re admitting that some people are indeed a lower priority than others.

Jacob Tingen: I mean, I think all of us would agree with that. But for you to fail to admit that for three years and then a pandemic comes along and you’re like, “Oh, you know what? We are going to do it the smart way,” just makes me say, “Why not do it the smart way from the very beginning?” So it’s true that the Obama administration did focus on criminal immigrants, immigrants with criminal histories. Right? And so for the Trump administration to do that now, I mean that’s good news for a lot of immigrants who don’t have criminal histories. They can go about their lives and should be a lot more calm and chill about what they do and how they interact, especially in these pandemic times. They don’t need to worry about going to the hospital or being in public.

Jacob Tingen: And that is the sound of working at home as my children bang on the door to the office. So we’ll see what happens. Maybe we’ll have a guest appearance today. We’ll see. But another interesting aspect that seems almost pro-immigration right now that’s happening is the business sector is telling president Trump and the Trump administration, “Hey, we need to prop up the economy any which way we can.” So even though unemployment numbers are skyrocketing, our recent news report today I read indicated that Trump is pushing to open the doors of our immigration policies to allow more immigrants to come in and take these jobs to man essential food supply jobs. That again, even though we’ve got soaring unemployment and, in theory, there are lots of Americans that need jobs. I mean, well not just in theory, in reality there are many Americans that need jobs. For a three month break, it’s just not realistic that people are going to go work in farms for three months and then go back to their regular jobs.

Jacob Tingen: So it’s interesting to see the Trump administration now take this proactive step to fill in these gaps that might appear in our food supply system and to do so with immigrants. And then also seeing the same action in terms of getting doctors and medical care professionals into the country and getting their visa applications processed so that they can help us deal with the pandemic. And so it just kind of makes you wonder, this was always a good idea. We don’t need to fill gaps in our food supply system just when there’s a pandemic. We always need to do that. We don’t need doctors just when there’s a pandemic, we always need doctors. So again, it’s kind of this admission on the part of the administration that immigration is good for us.

Jacob Tingen: Now you’re not going to see President Trump walk up to a camera and say we need immigrants. But that is what the current actions of the administration is saying. And so I just think it’s crazy that now we’re saying we absolutely need immigrants and we’re not going to focus on deporting any immigrants who don’t have criminal histories. These are two things that I would think most Americans would agree with and it takes a pandemic to implement it. And then again, once this pandemic stuff is over, and I hope it comes very quickly, I hope that the administration doesn’t revert to its prior practices. But I have a feeling that it will. Ideally, we’d be grateful for the help that immigrants gave us to get through this particular crisis that would be the hope.

Jacob Tingen: So I just want to talk, touch base on one more issue, which is what’s happening at the border. And so, one of the reports that we’re getting is that people who now approach the border and who cross unlawfully or not at a port of entry are immediately being turned around including children, minor children. And so we’ve talked a little bit about the TVPRA in the past and we’ve talked about the floor settlement agreement and treatment of minor children immigrants as they come into our country. And there are laws that protect them and prevent their immediate deportation. But unfortunately it looks like under CDC guidance and under the guise of CDC guidance, the immigration officials at the border are rapidly deporting minor children who have come fleeing violence. And I’ve read several reports about these children who’ve come across and sometimes even family units who’ve come across and are being immediately deported due to guidance from the CDC.

Jacob Tingen: At least that’s what they’re claiming. But you can see where the administration is enforcing harsh tactics where it can. So, that’s pretty much the wrap on coronavirus. There’s a lot to say about how coronavirus and immigration have played back and forth. I wanted to touch base on those things and how the immigration courts are running, on the Trump administration’s response in terms of getting immigrants here to fill up these necessary positions in our healthcare system, in our food supply system. And then also just kind of touch base on the fact that just because some things are getting better and not all of them are, there’s still a fight to be fought and on the issue of immigration. So again, if you know an immigrant, you can’t hug them right now, but keep your social distance, but give them not even a pat on the back, but applause online or a thumbs up or whatever you can do to help them know that we’re okay to have them in our country.

Jacob Tingen: And if that’s not your feeling, I invite you to listen to this podcast, watch these videos, and learn more about the issues that immigrants face and we’ll be out with more information here in the future. If you’d like to support the podcast, please don’t hesitate to follow at through our social media profiles for me personally and for the firm. And then also there’s a link on my website to donate to support the podcast. We’re taking the funds that are donated, putting them into a nonprofit, and then those funds will be used to help fund immigrant’s legal bills. So that’s kind of what we’re doing there. I hope you appreciated the show today and know that we will be back. Now that I’m set up here in my home office and have things running, we’ll be back talking more about coronavirus, talking more about its impact on our nation’s immigration system. And that today is a wrap for Nation of Immigrants. Thank you for listening. Have a great day. And stay inside or go outside but keep your distance. All right, bye.

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President Obama: America is a nation of immigrants.

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