(Photo: Ryland West/ALM)

A New York City legal services group on Wednesday launched a 44-page lawsuit against U.S. Attorney General William Barr, arguing that a Justice Department immigration court branch is "recklessly endangering" the lives of immigrants and their lawyers by keeping courts open and "strict" case-filing deadlines in place during the COVID-19 outbreak.

While explaining why options for mailing in and emailing key paper-filings do not work for many immigrants and their counsel, Legal Services NYC argues that the city's federal immigration court system, which is overseen by DOJ's Executive Office of Immigration Review, or EOIR, "forces [New York City] litigants and their lawyers to leave their homes unnecessarily to go to a copy store and their offices, and to the post office or another delivery service and in doing so to fail to maintain appropriate social distancing."

"By allowing some of its [immigration] courts to remain open for filing and enforcing unreasonable deadlines, EOIR has ignored the declared emergency in New York and has violated the orders from the NY Governor and NYC Mayor to close down all non-essential business and strictly adhere to social distancing," the legal services group wrote in its federal complaint lodged in U.S. District Court for the Southern District of New York.

"Litigants are left to decide whether to risk their health and lives by filing documents according to the set filing deadlines in their cases, or risk that an Immigration Judge may not excuse their late filing and order them removed to their country of origin, where they may face possible death," said the group, which is representing as plaintiffs two low-income immigrants with major underlying health problems (one of them, says the group, may have already contracted COVID-19), an attorney with HIV/AIDS, and two nonprofit organizations that work with area immigrants.

An email to the Department of Justice seeking comment on the suit was not returned.

In its detailed lawsuit, Legal Services NYC sets out myriad complaints about how the Executive Office of Immigration Review has handled—or mishandled, it alleges—the running of New York City's three immigration courts, which are located close to one another in Manhattan.

The issues laid out in the federal complaint range from the court buildings mostly remaining open for filings even after the new coronavirus pandemic was declared—thereby standing in contrast  to "measures taken by other courts and New York State," says the legal services group—to allegedly erratic, confusing and sometimes "conflicting" announcements about those courts made mostly over social media, often at night and at odd times.

In addition, a central complaint is that EOIR allegedly has failed to "provide uniform mandates" nationwide, such as not mandating the closure of the immigration courts, not directing judges to waive all filing deadlines for nondetention cases, and not giving any "specific guidance" to the immigration courts "on how to proceed to protect the public" if there is confirmed COVID-19 infection of someone inside the courts.

The suit further points out that the New York Empire State Development has "issued guidance" on a COVID-19 executive order from Gov. Andrew Cuomo, which directs that "lawyers may continue to perform all work necessary for any service so long as it is performed remotely."

"Therefore, a litigant or legal representative who leaves home in New York to work on an Immigration Court case violates the New York Governor's orders," argues Legal Services NYC and that, in turn, it argues could lead an arrest, misdemeanor convictions and even imprisonment.

"EOIR has engaged in a pattern of behavior that shows no regard for the health concerns of litigants and the lawyers who appear in its Immigration Courts," according to the suit, which names as defendants Barr and the DOJ's EOIR director, James McHenry.

In a Legal Services NYC news release accompanying a copy of the complaint on Wednesday, Isabel Heine, a senior staff attorney in the group's immigration unit, said, "Multiple attorneys I know have contracted COVID-19 due to Immigration Court appearances. Meanwhile, our low-income clients, who are facing higher rates of death, homelessness, and food insecurity, are being forced to focus on their immigration cases during a global pandemic because of EOIR's refusal to postpone these filing deadlines. Enough is enough."

Regarding the long-allowed option of mailing in paper filings in immigration matters, the legal services group argues in the complaint that "the vast majority of litigants and lawyers who are working from home do not have the supplies they need to produce and mail documents to the courts."

"Therefore, they are compelled to leave their homes to purchase those supplies or to go to their offices, despite the lockdown," the group contends, adding that often they also are forced to go to "the post office or another delivery service and in doing so to fail to maintain appropriate social distancing."

On March 31, EOIR announced temporary email accounts for immigration courts and the accepting of email filings but, among other issues with that option, Legal Services NYC argues, is that "even those litigants who have access at home to a computer with current software, e-mail, and high-speed Internet, may have their filings rejected by EOIR," especially given its many detailed rules for the filings. In addition, the group states that "many pre-hearing filings are hundreds of pages and are not easily prepared in home offices that lack large-capacity scanners and printers."

The suit, which focuses on nondetained immigration cases that more easily can be delayed, brings five causes of action, including alleged violation of immigrants' Fifth Amendment substantive due process rights based on "state-created danger," violation of Fifth Amendment right to counsel and violations of the Administrative Procedure Act.

Among other relief, the complaint asks for "a preliminary and permanent injunction … prohibiting Defendants from enforcing filing deadlines or taking any adverse actions in non-detained New York City Immigration Court cases based on litigants' failure or inability to comply with such deadlines until 45 days after New York State and New York City lift all stay at home and social distance orders applicable to advocates and litigants."

The complaint also said that COVID-19 "has had a disparate impact on people with cases in Immigration Court, since they are often low-income and racial minorities," and that "many of the individual Plaintiffs and employees of the organizational Plaintiffs share these characteristics."