In the letter, which was initiated by U.S. Representative Joe Neguse, they urge the heads of the Executive Office for Immigration Review and Immigration and Customs Enforcement to "immediately implement changes to the courtroom’s rules and practices to ensure that attorneys can provide effective counsel and respondents’ constitutional rights are preserved."
Explains Neguse: "We must ensure that neither safety nor due process is sacrificed, which is why we are requesting immediate actions from ICE and EOIR to remedy these circumstances and put in place common-sense measures to ensure the integrity of these court proceedings are not jeopardized. We believe these measures are essential to uphold due process."
Aside from a few days of closure, the Aurora Immigration Court, which handles the cases of those detained in the GEO Group-run facility there, has remained operational throughout the COVID-19 pandemic.
In fact, detained immigrant dockets have continued moving forward across much of the United States, despite objections from groups representing immigration attorneys, immigration judges and ICE prosecutors who want the courts temporarily closed not just for public health reasons, but to preserve due process.
"There are so many more hurdles that we have to jump over in order to try and provide legal assistance to our clients, but even when we're going above and beyond, there's just no way to offer them the same type of legal representation that they would receive if we were able to meet with them in person," says Laura Lunn, an attorney with the Rocky Mountain Immigrant Advocacy Network, which is calling for ICE detainees to be released and have their hearings added to the non-detained immigrant court docket.
In an attempt to limit in-person contact, immigration court hearings have been increasingly held by telephone in Aurora, "unavoidably affecting the due process rights of respondents," according to the letter, which also notes that a current court rule mandates that "any party appearing telephonically waives the right to object to admissibility of any document offered in Court on the sole basis that they are unable to examine the document." And given the current protocol at Aurora Immigration Court, it's impossible for an attorney to confidentially consult with a client.
The letter asks James McHenry, the director of the Executive Office for Immigration Review, which oversees all immigration-court hearings, to allow respondents to ask for a brief recess in order to privately consult with their attorneys over the phone. It also urges the office to require that documents presented in court for filing be emailed to lawyers in advance or during a recess, so that they can review them and offer objections.
Colorado's Democratic members of Congress want the Executive Office for Immigration Review to enact other policy alterations to ensure that a sick or emotionally distressed client doesn't go unnoticed simply because an attorney is calling in over the phone and can't see proceedings. And Neguse and his colleagues are urging the court to take various other steps to ensure the safety of detainees and everyone else entering the courtroom, including providing personal protective equipment to all attendees.
Finally, the letter implores Matthew Albence, the acting director of ICE, which contracts out the operations of the Aurora detention facility to GEO Group, to ensure that detainees have the ability to access phone calls on legal matters more frequently and privately.
The Executive Office for Immigration Review has not responded to a request for comment about the letter. ICE "responds to official correspondence through appropriate channels," says Alethea Smock, a local ICE spokesperson.
So far, two ICE employees and four GEO Group employees at the Aurora facility have tested positive for COVID-19. Despite a few COVID-19 scares that led to dozens of detainees being quarantined at various times during the pandemic, there have been no confirmed cases among the facility's detainees.
As of April 29, the detention facility housed 525 detainees, which is well below its maximum capacity of 1,532.
Immigration attorneys have filed petitions to get a handful of medically vulnerable detainees released from the Aurora detention facility. One of those petitions has resulted in a judge's order compelling a detainee's release, while the majority are still being adjudicated.
The full letter is available below.