On an ordinary day before the pandemic, more than 100 people would come to the US Immigration Court in Boston for preliminary hearings, cramming hallways and courtrooms as they waited, sometimes hours, for their cases to be called.
So attorney Rachel Self was nervous when her client was ordered to appear in court last month, a day after the court resumed “master calendar” hearings for the first time since March.
“It was a ghost town,” compared to before, “but it was still uncomfortable,” said Self, who wore a face shield over a mask to court and carried hand sanitizer.
There was no one checking temperatures of new arrivals or regulating how many people got on the elevators in the lobby at the John F. Kennedy Building, which houses the court, she said. Despite a posted warning that no more than 10 people were allowed in a courtroom at one time, there was no security at the door to enforce that rule as people wandered in and out. The judge was surrounded by plexiglass and everyone wore masks, but the courtroom was small.
“We were seated a foot from each other,” Self said. “The first thing I did after this hearing … I got a COVID test.”
The resumption of the sessions, which draw undocumented immigrants from across New England, came as COVID-19 infections surge to levels not seen in months. Many immigrants, who are contesting their removal proceedings, live in high-risk communities but may show up in court, even when they are sick, because they fear being deported, lawyers said.
Massachusetts Senators Edward J. Markey and Elizabeth Warren have urged federal immigration officials to take additional steps to protect people during the pandemic, citing “widespread confusion” about hearings at the Boston court.
“Our overall concern is for the health of all people in the court, including but not limited to the judges, clerks, attorneys, parties, and support staff,” they wrote last month in a letter to the director of the Justice Department’s Executive Office for Immigration Review, which manages the nation’s 69 immigration courts. “We understand that they are often required to work in crowded courtrooms that make safe distancing impossible, and are often called into court only to find that hearings have been canceled or postponed.”
They said it was the third time since March they have written to express concerns about the court’s operations, but they have yet to receive a response. A spokesman for the agency did not respond to a request for comment.
The senators also asked the court to clarify guidelines issued last month that allow attorneys to appear at preliminary hearings by telephone but fail to offer that option for their clients, including children.
Immigration lawyers said the guidelines are creating confusion because they are vague and not uniform. As a result, practices vary widely among judges, with some requiring immigrants to show up in court and at least one insisting they stay away and meet with their attorneys when they call in, the lawyers said.
Eliana Nader, chair of the New England chapter of the American Immigration Lawyers Association, said many attorneys are working from home because their offices are closed and some have underlying health conditions or live with someone who does, putting them at higher risk from coronavirus.
She said it’s unfair and potentially risky for the court to expect lawyers to bring clients to their homes or offices while they wait as long as several hours for their cases to be called.
“We want to be clear that our members will not be sharing their office space with clients if they do not feel they can safely do so, for the same reasons that court staff are understandably unwilling to share close quarters with respondents,” she wrote in a letter to the Office of Immigration Review and the Boston court’s chief judge last month.
Nader said it’s also unfair to clients if they are required to appear in person, while lawyers and prosecutors may call in.
She urged the court to issue a standing order allowing clients to appear by telephone, without being in the presence of their lawyers, or waive their presence at hearings. The clients face civil immigration violations and are in the preliminary stage of proceedings to determine whether they can remain in the country. If they fail to show up for a hearing, they face immediate deportation.
Alexandra Peredo Carroll, managing attorney at the Boston office of Kids in Need of Defense, which advocates for unaccompanied migrant and refugee children, said the organization won’t let children appear in court without their lawyers and is concerned that judges may require them to attend preliminary hearings. She said attorneys are instructed by the court to call in advance if they plan to appear at a hearing by telephone, but often can’t reach anyone.
“I do think that some judges are willing to be accommodating, but without clear direction from the court and the ability to call the court and make arrangements ahead of time, it makes it really challenging,” she said.
In Newark, N.J., the Immigration Court began offering videoconferencing after the state chapter of the American Immigration Lawyers Association filed a lawsuit in July in an attempt to block in-person hearings at the court. The coronavirus spread through the court before it closed in March and caused the deaths of an immigration attorney and a staffer at the immigration prosecutor’s office, according to the suit.
While many of the nation’s immigration courts closed during the pandemic, Boston’s court remained open. Initially, the court only held hearings for detained immigrants, but in June it resumed some in-person hearings for those not in custody. But until last month, it had suspended the master calendar hearings that draw much larger crowds.
Attorney Susan Church said the immigration court is in “chaos” and could easily resolve safety concerns by allowing immigrants to appear at hearings by telephone or video. State courts have been allowing those facing criminal charges to appear by telephone.
“This is not rocket science,” she said. “Why the immigration courts will not respond to a global pandemic to save the lives of lawyers and clients is absolutely beyond me.”
Ashley Tabaddor, president of the National Association of Immigration Judges, said the Office of Immigration Review has repeatedly denied judges’ requests to allow remote hearings during the pandemic and has refused to share data about the number of COVID-19 cases linked to the courts.
“There is no transparency, no accountability, ineffective communication, complete disregard for stakeholder involvement, and a lack of a collaborative response or efforts,” Tabaddor said. “The judges are really trying their best to navigate with what the agency is allowing.”
Shelley Murphy can be reached at shelley.murphy@globe.com. Follow her @shelleymurph.