Former Wilmer Hale partner Carl Nichols testifies at his confirmation hearing. Photo: Diego M. Radzinschi/ALM

Justice Department attorneys told a federal judge in Washington, D.C., on Wednesday that he lacks the authority to temporarily halt in-person court proceedings for detained immigrants during the COVID-19 pandemic.

Immigration lawyer groups, as well as five detained immigrants with upcoming hearings, filed a lawsuit earlier this month challenging in-person proceedings being held during the health crisis. Last week, with the assistance of attorneys at Cleary Gottlieb Steen & Hamilton, the plaintiffs filed a motion for a temporary restraining order seeking a short pause for the proceedings while the Justice Department's Executive Office for Immigration Review, which runs the courts, implements policies to safely protect participants in light of the pandemic.

U.S. District Judge Carl Nichols of the District of Columbia, who joined the federal bench last year, heard phone arguments on the motion Wednesday. He questioned attorneys from both sides about what kind of options detained immigrants have if an immigration judge denied a request to delay a hearing, a scenario referenced in declarations by immigration lawyers filed by the plaintiffs.

"If EOIR issued guidance to immigration judges directing them to never grant a request for continuance based on the coronavirus, is it your view that directive would be unreviewable because of the INA provisions, except in connection with the individual case" brought through the immigration court system, Nichols asked, referring to the Immigration and Nationality Law. The statute generally blocks immigrants from taking their cases to federal court until other options are exhausted.

DOJ attorney Brian Ward said that was the case, but also pointed to immigrants being allowed to eventually petition a court of appeals in their cases as meaning the federal statute "doesn't fully eliminate jurisdiction."

Matthew Slater, a partner with Cleary who argued for the motion Wednesday, rebutted the Justice Department's interpretation of the statute. He said in blocking judicial review tied to immigrant removal hearings, "Congress should not have believed to have adopted … a suicide pact or a death trap."

"I think we have to deal with the reality of what we have on the ground right now," Slater added.

Nichols also raised the prospect of what would happen if an immigration judge "acted inappropriately" in not granting requests to delay scheduled in-person hearings because of the virus. Ward replied there is no evidence presented in the case to suggest that is happening; Slater later said the plaintiffs had filed declarations from immigration attorneys indicating otherwise.

"If an immigration judge basically forces someone to show up to an in-person hearing, there is no way to remedy the risk the detained alien has been put through," Nichols said, in explaining why he was posing the hypothetical scenarios to counsel.

The Justice Department lawyers also argued it would be inappropriate for the court to issue an expansive order halting proceedings in the dozens of immigration courts across the U.S. Ward, joined by fellow DOJ attorney Alex Halaska, pointed to guidance issued by EOIR and ICE on conducting proceedings remotely when possible.

Ward further argued that, just as the federal judiciary has allowed individual courts and judges to make determinations on what kind of hearings should be held during the pandemic, immigration courts and judges should be given that same level of flexibility.

Slater said the plaintiffs were not asking Nichols to order the immigration courts to do anything. Rather, he said, they wanted Nichols to order DOJ officials who had authority over those courts to pause the proceedings while they came up with appropriate national guidance to ensure the health and safety of those who would typically attend the hearings, including immigration judges, attorneys and the detained immigrants.

Nichols did not rule on the temporary restraining order at the conclusion of Wednesday's arguments. He closed the hearing by saying he is "well aware of how serious the coronavirus is."

"Nothing I said today, none of the questions I asked should be read as inconsistent with the view that this is a very serious matter on which the federal government and the states have taken very serious actions," Nichols said. "The question is whether or to what extent this court should involve itself in the very specific issues involved here."