Peter W. Rodino Federal Office Building at 940 Broad Street in Newark, New Jersey. Credit: Jim.henderson via Wikimedia Commons
A lawyer's positive COVID-19 test result, after appearing with his client in a video hearing, shows that technology alone is not enough to ensure the safety of attorneys in court, plaintiffs argue in a suit claiming insufficient health precautions at Newark's immigration court.
The case raises the question of how far court administrators must go to protect the safety of lawyers and litigants.
The Department of Justice says in court papers that the case is moot now that it has installed a Cisco Webex videoconference system. But immigration lawyers say the lack of clear policies and rules concerning use of the new technology dictate that the suit should not be dismissed.
Plaintiffs link the botched rollout of the Webex videoconferencing system to the positive COVID-19 test results received by Newark attorney John J. Perez on Oct. 4. Perez's positive test follows the June death from COVID-19 of another attorney practicing in the Newark immigration court, Raymond D'Uva, which the plaintiffs attribute to unsafe working conditions at the Newark court.
In addition, a staff member in the court's Immigration and Customs Enforcement Office of Chief Counsel at the Newark office died in April after contracting COVID-19, and a government attorney and a court interpreter working in the Newark immigration court have suffered serious illnesses due to COVID, the plaintiffs claim in court papers.
U.S. District Judge John Michael Vazquez. Courtesy photo
The deaths of D'Uva and the unnamed staff member and the illnesses of the government attorney and interpreter were cited in a complaint filed by the American Immigration Lawyers Association in July, claiming the management of the Newark immigration court failed to alter its procedures to protect the public from the pandemic. The case is before U.S. District Judge John Michael Vazquez of the District of New Jersey.
Perez, a named plaintiff in the suit, said he was scheduled to appear before Judge Tamar Wilson on Sept. 29. The court provides lawyers a website link by email that allows them to appear remotely. But the court does not allow lawyers to share the link with their client, so that the client must go to the lawyer's office for the court appearance.
On the hearing date, the client and his wife showed up at Perez's office in Newark—the first time since he reopened in June that he met with a client in his office, Perez said in court papers. The client and his wife both wore masks and had their temperature checked.
During the hearing, Perez and his client could not see the judge, the government's attorney or an interpreter on the screen. When he mentioned that to the judge, she said, "That's OK."
During the hearing, Perez gathered with the client and his wife in a 10-by-10 office with limited ventilation, attempting to stay six feet away from the clients and behind a plexiglass barrier. But he was unable to do so at times during the two-hour hearing because the judge kept saying she could not hear him, his client or the client's wife, Perez said in court papers.
On Oct. 1, Perez decided to get tested for COVID-19 and on Oct. 4 his result came back positive. Perez said that throughout the pandemic, he did not attend any large gatherings or go to restaurants, even for outdoor dining.
A failure of the management at the Newark immigration court to establish comprehensive rules, policies and procedures governing video hearings has resulted in hearings that are unsafe and ineffective, the plaintiffs said in court papers, citing Perez's experience.
"This episode is revealing: It demonstrates that in the absence of a policy permitting immigration court respondents to appear remotely, these hearings create the risk of an infection of an attorney by their client, or vice versa, and thus do not address the concerns raised in plaintiffs' complaint," the plaintiffs said in court papers.
Lawrence S. Lustberg of Gibbons. Courtesy photo
"Although the exact source of Mr. Perez's infection is unknown, nonetheless this incident makes clear that unless [the Executive Office for Immigration Review] has a firm policy of permitting both immigration attorneys and their clients to appear remotely, from separate locations, then even these videoconference hearings do not sufficiently guard against the risk of spreading a COVID-19 infection, not only between attorney and client, but also subsequently to their families and communities," the AILA lawyers said in court papers.
The case is not moot because the government has not demonstrated that it will not halt remote video proceedings and resumed compelled in-person hearings before risks to the health of those attending Newark immigration court from COVID-19 have subsided, the plaintiffs said in court papers.
Lawrence Lustberg of Gibbons in Newark, representing the plaintiffs, did not respond to a call about the case.
Matthew Reilly, a spokesman for the U.S. Attorney's Office, which represents the immigration court administration, declined to comment on the case.
Charles Toutant
Charles Toutant is a litigation writer for the New Jersey Law Journal.