U.S. Department of Justice building in Washington, D.C. Photo: Diego M. Radzinschi /ALM

Public defenders representing detained immigrants due for appearances at the U.S. Department of Justice's Varick Street immigration court in Lower Manhattan say dozens of cases were unilaterally moved up on the hearing calendar without providing attorneys with notice or the chance to respond.

According to the New York Immigrant Family Unity Project, which is made up of a trio of city public defender offices, at least 25 cases scheduled for later this year, some as far away as the summer, were discovered to have been been rescheduled for as early as next week. The providers claim no one from the DOJ or the court reached out to inform attorneys of these changes.

“The Executive Office for Immigration Review's unilateral decision to advance our detained clients' trial dates—without any prior notice or warning—is illegal, unacceptable, and a thinly veiled attempt to avoid true representation of immigrants in the court,” the group said in a statement. “Re-calendaring cases so they are heard well before the scheduled trial date, with no notice or explanation, guarantees that attorneys will not be able to fully prepare and, in many situations, will not be able to obtain needed documentation for the trial.”

A spokesman for the DOJ's Executive Office for Immigration Review, Jonathan Martin, said in an email that, “EOIR prioritizes all detained cases.” He then pointed to a January 2018 memo from EOIR Director James McHenry III that instructed immigration court judges and staff to prioritize the cases of “individuals in detention or custody, regardless of the custodian” for completion.

“The designation of a category of cases as priority is an indication of an expectation that such cases should be completed expeditiously and without undue delay consistent with due process,” McHenry goes on to state in the memo.

According to immigration attorneys, the DOJ's decision to unilaterally move up hearing dates fits a pattern and practice by federal authorities set on undermining legal representation for immigrants. They point to a similar set of decisions to implement video conferencing for detainees during hearings last year, which is now the subject of a federal lawsuit.

Attorneys claim federal officials have retreated from a previous stance where dialogue was not only possible but a relative norm. Now, they say, DOJ officials have gone completely silent when attorneys attempt to communicate about an issue.

“No matter how many times we reach out to them, it's like talking to a brick wall,” said one immigration attorney granted anonymity to speak candidly about the situation with DOJ.

Attorneys in the immigration organization are now in the process of filing motions in each individual case, asking for the dates to be reset. Depending on the results of these requests, the group is reviewing its options ahead of possible court action.

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