Full text
COVID-19
Improvements
Needed in Guidance
and Stakeholder
Engagement for
Immigration Courts
Report to Congressional Addressees
August 2021
GAO-21-104404
United States Government Accountability Office
United States Government Accountability Office
Highlights of GAO-21-104404, a report to
congressional addressees
August 2021
COVID-19
Improvements Needed in Guidance and Stakeholder
Engagement for Immigration Courts
What GAO Found
The Department of Justice’s (DOJ) Executive Office for Immigration Review
(EOIR) took steps to modify immigration court operations and guidance to
respond to COVID-19. For instance, EOIR implemented health and safety
measures at immigration courts, such as requiring social distancing. From mid-
March 2020 until mid-June 2020, EOIR also temporarily suspended hearings for
individuals not in immigration detention. Immigration courts took other steps to
reduce the number of people physically present in EOIR space, such as rotating
immigration judges’ and staffs’ schedules. EOIR data indicate its courts delayed
nearly 600,000 hearings from March through October 2020 due to court closures.
Senior EOIR officials told GAO that EOIR expected all those present in a
courtroom to wear masks for the duration of a hearing. However, EOIR did not
issue mask-wearing guidance tailored to courtrooms—nontraditional office
settings, according to DOJ—that articulated this expectation because officials
said that DOJ’s existing guidance applies to all EOIR space. GAO identified
several instances in which judges did not always require or wear masks in their
courtrooms. Issuing tailored guidance could help EOIR better ensure that court
staff and visitors understand expectations during hearings, particularly as public
health guidance evolves.
Executive Office for Immigration Review (EOIR) and Department of Justice COVID-19 Actions
EOIR did not regularly engage with stakeholders during the COVID-19 pandemic.
Stakeholders told GAO that the pandemic highlighted long-standing limitations in
EOIR’s stakeholder engagement. For example, from fall of 2017 through April
2021, EOIR generally ceased holding regular stakeholder meetings.
Stakeholders said these meetings historically provided opportunities for two-way
communication with EOIR, which was increasingly important during the
pandemic. Stakeholders noted challenges engaging with EOIR on their concerns
regarding modifications to court hearing schedules and health and safety
matters, such as EOIR’s process to respond to COVID-19 exposures. Taking
steps to regularly engage with court stakeholders could help EOIR address their
concerns about its response to the pandemic and maintain positive relationships
in the future.
View GAO-21-104404. For more information,
contact Rebecca Gambler at (202) 512-8777
or gamblerr@gao.gov.
Why GAO Did This Study
Each year, EOIR issues decisions for
hundreds of thousands of cases of
foreign nationals charged as
removable under U.S. immigration law.
Approximately 500 immigration judges
at 66 immigration courts nationwide
determine whether these individuals
are removable from the U.S. and, if so,
whether they are eligible for any
requested relief from removal. During
the COVID-19 pandemic, EOIR faced
unprecedented challenges adapting its
operations to continue its mission.
GAO was asked to review EOIR’s
management of court operations
during the COVID-19 pandemic. This
report examines, among other things,
(1) EOIR’s modifications to court
operations and related guidance and
(2) EOIR’s engagement with court
stakeholders.
GAO reviewed EOIR’s policies and
guidance during the pandemic; and
interviewed EOIR headquarters
officials and staff at six immigration
courts selected to include different
dockets and caseloads, among other
factors. GAO interviewed stakeholders,
such as private bar attorneys
representing foreign nationals and
attorneys representing the
government, proximate to these six
courts. GAO also analyzed EOIR
caseload data to determine any
changes during the pandemic.
What GAO Recommends
GAO is making four recommendations,
including that EOIR issue guidance on
mask-wearing requirements tailored to
the courtroom setting, and regularly
engage with court stakeholders. EOIR
concurred with the recommendations.
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GAO-21-104404 Immigration Courts
Letter
1
Background
8
EOIR Modified Operations to Address Health and Safety Needs
but Lacks Certain Guidance for Staff
12
EOIR Did Not Regularly Engage with Stakeholders during the
COVID-19 Pandemic
29
EOIR’s Caseload Changed in Several Ways during the COVID-19
Pandemic
38
Conclusions
52
Recommendations for Executive Action
52
Agency Comments
53
Appendix I
Respondents’ Access to Legal Counsel and Resources during the
Coronavirus Disease 2019
57
Appendix II
GAO Contact and Staff Acknowledgments
70
Tables
Table 1: Roles for Selected Executive Office for Immigration
Review (EOIR) Immigration Court Staff
9
Table 2: Core Legal Orientation Services Provided through the
Executive Office for Immigration Review (EOIR)
59
Figures
Figure 1: Steps in Immigration Court Removal Proceedings
Process
11
Figure 2: Time Line of Selected Executive Office for Immigration
Review (EOIR) Actions to Respond to COVID-19
13
Figure 3: Executive Office for Immigration Review’s (EOIR)
Process for Responding to COVID-19 Exposures at
Immigration Courts
19
Figure 4: Example of an Executive Office for Immigration Review
(EOIR) Immigration Court Floorplan
23
Figure 5: Changes in the Executive Office for Immigration
Review’s (EOIR) Court Closure Announcements on
Twitter during the COVID-19 Pandemic
31
Contents
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GAO-21-104404 Immigration Courts
Figure 6: Executive Office for Immigration Review’s (EOIR)
Pending Caseload, by Court Type, from March 2019
through October 2020
40
Figure 7: Executive Office for Immigration Review’s (EOIR)
Immigration Judge Decisions, by Court Type, from March
2019 through October 2020
42
Figure 8: Executive Office for Immigration Review’s (EOIR) In
Absentia Immigration Court Decisions, by Court Type,
from March 2019 through October 2020
44
Figure 9: Executive Office for Immigration Review’s (EOIR) Case
Receipts, by Court Type, from March 2019 through
October 2020
46
Figure 10: Executive Office for Immigration Review’s (EOIR)
Adjournments, by Court Type, from March 2019 through
October 2020
48
Figure 11: Executive Office for Immigration Review’s (EOIR)
Continuances Indicating Court Closures, by Court Type,
from March 2019 through October 2020
51
Figure 12: Total Core Services Provided by the Executive Office
for Immigration Review’s (EOIR) Legal Orientation
Program, October 2018 through December 2020
64
Figure 13: Custodians Participating in Core Services Provided by
the Executive Office for Immigration Review’s (EOIR)
Legal Orientation Program for Custodians of
Unaccompanied Alien Children, October 2019 through
December 2020
65
Figure 14: Orientations and Follow-Up Sessions Provided to
Individuals by the Executive Office for Immigration
Review’s (EOIR) Legal Orientation Program for
Custodians of Unaccompanied Alien Children, October
2018 through December 2020
66
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GAO-21-104404 Immigration Courts
Abbreviations
ACIJ
Assistant Chief Immigration Judge
CDC
Centers for Disease Control and Prevention
COVID-19
Coronavirus Disease 2019
DHS
Department of Homeland Security
DOJ
Department of Justice
EOIR
Executive Office for Immigration Review
ICE
U.S. Immigration and Customs Enforcement
LOP
Legal Orientation Program
LOPC
Legal Orientation Program for Custodians of
Unaccompanied Alien Children
OPLA
Office of the Principal Legal Advisor
PPE
personal protective equipment
Vera
Vera Institute of Justice
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GAO-21-104404 Immigration Courts
441 G St. N.W.
Washington, DC 20548
August 31, 2021
Congressional Addressees
Each year, the Department of Homeland Security (DHS) initiates
hundreds of thousands of removal cases with the U.S. immigration court
system.1 The Department of Justice’s (DOJ) Executive Office for
Immigration Review (EOIR) is responsible for conducting immigration
proceedings to fairly, expeditiously, and uniformly administer and interpret
U.S. immigration laws and regulations. EOIR’s approximately 500
immigration judges are located in 66 immigration courts across the
country. Immigration judges preside over hearings to decide whether
respondents—foreign nationals charged as removable due to violation of
federal immigration law—should be deemed removable as charged and, if
so, granted any requested relief or protection from removal permitting
them to lawfully remain in the country.2 EOIR’s workforce, which totaled
approximately 2,000 full time employees as of fiscal year 2020, also
includes staff at headquarters and immigration courts (e.g., court
administrators). Various other stakeholders are active within the
immigration courts in addition to EOIR’s workforce. These stakeholders
include respondents and their attorneys; attorneys from DHS’s Office of
1DHS is responsible for identifying, detaining, initiating removal proceedings and litigating
administrative immigration charges against, and executing removal orders for individuals
who are suspected and determined to be in the U.S. in violation of U.S. immigration laws.
The term “administrative immigration charges” refers to factual and legal allegations
related to removability, associated statutory provisions, and supporting information,
included in a Notice to Appear in immigration court, which is the charging document for
removal proceedings and which is served on the individual and filed in immigration court.
Such charges are based on alleged civil violations of U.S. immigration law, which, if
proven, render a charged individual of non-U.S. nationality statutorily inadmissible or
deportable and therefore subject to removal from the country unless they obtain relief or
protection from removal. See 8 U.S.C. §§ 1182, 1227, 1229, 1229a.
2Throughout this report, we generally use the term “relief” in reference to any form of relief
or protection from removal provided for under U.S. immigration law. A foreign national in
the U.S. may be removable on statutory grounds of inadmissibility, Immigration and
Nationality Act § 212(a), 8 U.S.C. § 1182(a), if they have no prior lawful admission; or
deportability, INA § 237, 8 U.S.C. § 1227, if they were previously lawfully admitted. See 8
U.S.C. § 1229a(e)(2). The lawfulness of a prior admission may be at issue in removal
proceedings. See 8 U.S.C. §§ 1182(a)(6)(C)(i) (inadmissibility for having fraudulently
obtained admission into the U.S.), 1227(a)(1)(A) (deportability for having been
inadmissible at the time of entry).
Letter
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GAO-21-104404 Immigration Courts
the Principal Legal Advisor (OPLA); and witnesses and family members
who may appear or be present during hearings.3
On March 13, 2020, the President declared the Coronavirus Disease
2019 (COVID-19) pandemic an emergency for all states, tribes, territories,
and the District of Columbia.4 The pandemic has resulted in catastrophic
loss of life and generated unprecedented challenges for federal agencies
tasked with addressing the pandemic’s effects while continuing to carry
out their missions. According to data from the Centers for Disease Control
and Prevention (CDC), the U.S. had approximately 33 million reported
cases and more than 592,000 reported deaths due to COVID-19 as of
June 19, 2021.5
On March 18, 2020, the same day the President’s COVID-19 emergency
declaration was published in the Federal Register, EOIR suspended
hearings for non-detained individuals (i.e., those individuals who are not
detained as they await resolution of their immigration court proceedings).
A small number of staff in these courts continued to work in person. EOIR
generally did not postpone hearings for detained individuals, which have
3OPLA provides specialized legal advice to the Director of the U.S. Immigration and
Customs Enforcement (ICE) and represents ICE in all removal proceedings before EOIR.
6 U.S.C. § 252(c).
4Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19)
Outbreak, Pres. Proc. No. 9994, 85 Fed. Reg. 15,337 (Mar. 18, 2020) (issued Mar. 13).
5Data on COVID-19 cases in the U.S. are based on aggregate case reporting to CDC and
include probable and confirmed cases as reported by states and jurisdictions. CDC’s
COVID-19 counts are subject to change due to delays or updates in reported data from
states and territories. According to CDC, the actual number of COVID-19 cases is
unknown for a variety of reasons, including that people who have been infected may not
have been tested or sought medical care. CDC’s National Center for Health Statistics’
COVID-19 death counts in the U.S. are based on provisional counts from death certificate
data, which do not distinguish between laboratory-confirmed and probable COVID-19
deaths. Provisional counts are incomplete due to an average delay of 2 weeks (a range of
1–8 weeks or longer) for death certificate processing. The data were accessed on June
23, 2021. Data include deaths occurring from January 2020 through the week ending on
June 19, 2021.
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historically been deemed an EOIR priority.6 In late June 2020, EOIR
resumed limited numbers of hearings for non-detained individuals at
selected courts across the country, raising questions from Congress and
immigration court stakeholders about the health and safety measures in
place across these locations during the pandemic.7 According to EOIR,
32 of 50 immigration courts with cases for non-detained respondents
have resumed hearings, as of April 2021, though at a reduced capacity.
The measures EOIR implemented across immigration courts in response
to COVID-19, including the initial suspension of non-detained hearings
and other modifications to minimize face-to-face interactions, have
affected EOIR’s case backlog—that is, the number of cases pending from
previous years that remain open. We previously reported that EOIR has
faced a significant case backlog.8 As of April 2021, EOIR has a backlog of
approximately 1.3 million pending cases, according to EOIR data.
You asked us to review EOIR’s management of court operations during
the COVID-19 pandemic and the effect of its response to health and
6While removal proceedings are pending, respondents may be detained in ICE custody or,
released on bond, conditional parole, terms of supervision, or other alternatives to
detention. The Immigration and Nationality Act, as amended, provides DHS with broad
discretion (subject to certain legal standards) to detain, or conditionally release
respondents depending on the circumstances and statutory basis for detention. The law
requires DHS to detain particular categories of individuals, such as those deemed
inadmissible for certain criminal convictions or terrorist activity. See 8 U.S.C. §§ 1225,
1226, 1226a, 1231. EOIR did postpone hearings for detained individuals on a case-by-
case basis, such as if the respondent was under quarantine, according to EOIR officials.
7In addition, in April 2021, the DOJ Office of the Inspector General issued a report
describing the results of a limited scope review of EOIR’s handling of operations during
the COVID-19 pandemic. The Inspector General’s office received a series of complaints
beginning in March 2020 from a variety of stakeholders—parties associated with
respondents, prosecutors, and EOIR court staff—relating to EOIR’s operational decisions
during the COVID-19 pandemic, potential exposures to COVID-19 while in EOIR space,
and communication from EOIR regarding COVID-19. The Inspector General made nine
recommendations to improve EOIR’s response to the pandemic such as developing
methods to ensure that immigration courts and EOIR offices are following social
distancing guidelines and clearly communicating with staff regarding COVID-19. See DOJ
Office of the Inspector General, Pandemic Response Report: Limited-Scope Review of the
Executive Office for Immigration Review’s Response to the Coronavirus Disease 2019
Pandemic, 21-063 (Washington, D.C.: Apr. 22, 2021).
8GAO, Immigration Courts: Actions Needed to Reduce Case Backlog and Address Long-
Standing Management and Operational Challenges, GAO-17-438 (Washington, D.C.:
June 1, 2017).
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safety challenges on EOIR staff, stakeholders, and caseload.9 This report
discusses (1) the extent to which EOIR modified operations and guidance
for immigration courts in response to the COVID-19 pandemic; (2) the
extent to which EOIR communicated and engaged with court
stakeholders during the COVID-19 pandemic; and, (3) what EOIR data
indicate about immigration courts’ caseloads during the pandemic.
This report also provides information on foreign nationals’ access to legal
services and resources during the pandemic (see app. I).
To address all three objectives, we interviewed court staff and
stakeholders at a nongeneralizable sample of six immigration courts in
Massachusetts, Maryland, Georgia, Texas, Arizona, and Washington.10
We selected these immigration courts based on a variety of factors,
including court type (whether the court has primarily detained
respondents, non-detained respondents, or a mixture); geographic
dispersion; and to encompass a range of case backlog sizes.11
Specifically, at each court, we interviewed the Assistant Chief Immigration
Judge (ACIJ), court administrator, and two immigration judges. We
interviewed two immigration judges to obtain differing perspectives on
each judge’s experiences during the pandemic and the individual judge’s
modifications to court protocols in response to COVID-19. At each court
location, we used semistructured interview questions to obtain
perspectives on (1) each court’s modifications to court operations in
response to COVID-19, (2) communications and engagement between
EOIR headquarters and court staff, and (3) the effects of COVID-19 on
the court’s caseload.
At each court location, we also interviewed court stakeholders to obtain
their perspectives on the health and safety measures EOIR put in place in
9We are conducting this work based on your request, as well as oversight authority
provided to GAO in section 19010 of the CARES Act, Pub. L. No. 116-136, div. B, title IX,
§ 19010, 134 Stat. 281, 579-81 (Mar. 27, 2020). We regularly issue government-wide
reports on the federal response to COVID-19. For the latest report, see GAO, COVID-19:
Continued Attention Needed to Enhance Federal Preparedness, Response, Service
Delivery, and Program Integrity, GAO-21-551 (Washington, D.C.: July 19, 2021). Our next
government-wide report will be issued in October 2021 and will be available on GAO’s
website at https://www.gao.gov/coronavirus.
10Due to COVID-19, we conducted these meetings by teleconference.
11For the purposes of this report, the case backlog is the number of pending cases by
fiscal year.
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response to COVID-19 and EOIR’s communications and engagement
during the COVID-19 pandemic. Specifically, we interviewed two to four
attorneys representing the government and two to four private bar
attorneys representing respondents at the court at each location. We
selected private bar attorneys by first consulting with EOIR’s published list
of private bar organizations that provide attorneys to represent
respondents at different immigration courts. When we could not reach
respondents’ representatives through EOIR’s published list, we consulted
with the American Immigration Lawyers Association to connect us with
private bar attorneys in a specific court location.12 While the information
we obtained from these interviews with court stakeholders at selected
immigration courts cannot be generalized to all immigration courts, it
provides valuable perspective into EOIR’s response to COVID-19 and the
modifications to immigration court operations in those locations.
To address our first objective, we reviewed EOIR’s guidance and policies
for COVID-19 health and safety requirements. We interviewed officials
responsible for developing and managing EOIR’s response to the
pandemic, including members of the EOIR COVID-19 Response
Committee and other senior EOIR officials. These officials represented
various EOIR headquarters offices, to include the Office of Policy, the
Office of the Director, Office of the General Counsel, the Office of the
Chief Immigration Judge, and the Office of Information Technology.
During these interviews, we discussed actions that EOIR took to respond
to COVID-19, health and safety requirements for the immigration courts,
and guidance that EOIR developed and disseminated to immigration
courts. We also spoke with ACIJs, court administrators, and immigration
judges to determine the actions they took at selected immigration courts
to modify operations during the COVID-19 pandemic, including any
actions to address the health and safety of those present at these
immigration courts. In addition, we interviewed private bar attorneys and
OPLA attorneys at these locations to determine how external
stakeholders adapted to modified operations at these immigration
courts.13 We compared this information against Standards for Internal
12The American Immigration Lawyers Association is a national association of more than
15,000 attorneys and law professors who practice and teach immigration law. Member
attorneys represent respondents at immigration courts nationwide.
13OPLA is to provide specialized legal advice to the Director of ICE, and represent ICE in
all removal proceedings before EOIR. 6 U.S.C. § 252(c). OPLA is within DHS’s Office of
the General Counsel and is funded under ICE’s Operations and Support account.
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Control in the Federal Government.14 Specifically, we determined that
documentation requirements of internal control standards were significant
to this objective and assessed EOIR’s documentation on its operations
and guidance in response to the pandemic, particularly related to mask-
wearing in courtrooms and guidance on how to respond to COVID-19
exposures. We also compared this information against mask-wearing
guidance described in DOJ’s February 2021 COVID-19 Workforce Safety
Plan.15
To address our second objective, we reviewed EOIR documentation on
its communication policies with court staff and stakeholders, including
position descriptions for EOIR staff that focus on external
communications with court stakeholders and the public. We analyzed
documentation of internal EOIR communications (e.g., emails and
newsletters) and external communications (e.g., EOIR’s and courts’
websites and social media posts). From these documents, we identified
the information that EOIR provided to internal staff and external
stakeholders on pandemic-related events, such as closing courts and
postponing hearings, and its policies and guidance to immigration court
staff and stakeholders on health and safety measures for COVID-19 and
modifications to court operations.
In addition, we interviewed EOIR headquarters officials responsible for
overseeing EOIR’s internal and external communications and stakeholder
engagement. We also spoke with representatives from private bar
organizations, as well as the national immigration judge union, to obtain
their perspective on EOIR’s communication and engagement prior to and
during the COVID-19 pandemic.16 We compared EOIR’s policies and
procedures for communicating and engaging with stakeholders to federal
internal control standards related to management of communications with
external parties.17 We also compared EOIR’s practices to engage with
14GAO, Standards for Internal Control in the Federal Government, GAO-14-704G
(Washington, D.C.: September 2014).
15Department of Justice, 2021 Department of Justice COVID-19 Workforce Safety Plan
(Washington, D.C.: Feb. 16, 2021).
16Subsequent to our meeting with the immigration judges union, the Federal Labor
Relations Authority issued a decision on November 2, 2020 that immigration judges are to
be considered management officials and, therefore, excluded from participating in any
bargaining units.
17GAO-14-704G.
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stakeholders to guidance on key considerations for making reentry
decisions when returning federal employees to workplaces during
pandemics.18 We also referred to our prior work on collaboration.19
To address our third objective, we obtained and analyzed monthly data
on EOIR’s caseload from October 2018 through October 2020. This time
frame represents the most recent two fiscal years of data maintained by
EOIR’s data system at the time of our review, with one additional month
of data on the caseload during the pandemic.20 Specifically, we analyzed
the following data: pending cases; immigration judge decisions, including
in absentia decisions; hearing adjournments, including for continuances
due to court closures, completions at or prior to the hearing, or other
reasons; and case receipts.21 We analyzed these data nationwide by
court type—detained, non-detained, and hybrid. EOIR provided data to us
in the unit of “base cities,” or cities where immigration courts are located
or nearby. We followed EOIR’s categorization of court types by base
18GAO, Federal Workforce: Key Considerations for Agencies Returning Employees to
Workplaces During Pandemics, GAO-20-650T (Washington, D.C.: June 25, 2020).
19GAO, Managing for Results: Key Considerations for Implementing Interagency
Collaborative Mechanisms, GAO-12-1022 (Washington, D.C.: Sept. 26, 2012).
20We requested and received data in two sets to help ensure that EOIR had sufficient time
to enter and update data as needed: fiscal year 2018 through July 2020, which we
received in October 2020, and January 2020 through October 2020, which we received in
January 2021.
21Pending cases are open cases without resolutions; immigration judge decisions are
instances in which an immigration judge rules on the outcome of a case; immigration
judge decisions in absentia are instances in which a respondent does not appear for a
scheduled court hearing and the immigration judge rules on the outcome of a case;
hearing adjournments are entered on a number of bases, including continuances under
various circumstances, case completions at or prior to hearing, and instances in which the
date of a hearing was entered incorrectly and could not be rectified, among other reasons;
a continuance is a temporary adjournment or postponement of a case until a later date, for
good cause, see 8 C.F.R. §§ 1003.29 (Continuances), 1240.6 (Postponement and
adjournment of hearing); continuances due to court closures are the resetting of hearings
from one date to another due to court closures. According to EOIR officials, the majority of
continuances due to court closures from March 2020 through October 2020 are
attributable to COVID-19. Case receipts are new cases submitted to immigration courts.
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cities where immigration courts are located.22 To assess the reliability of
EOIR’s caseload data, we reviewed related documentation—including
EOIR’s data system manual and guidance for specific codes—and
conducted testing for obvious data errors. We also interviewed officials
knowledgeable about how EOIR staff entered and maintained the
caseload data. We determined the data were sufficiently reliable for the
purposes of describing EOIR’s caseload during from October 2018
through October 2020.
We conducted this performance audit from June 2020 to August 2021 in
accordance with generally accepted government auditing standards.
These standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
EOIR has 66 immigration courts nationwide.23 Immigration courts may be
co-located with a detention facility or a correctional facility, or located
within federal buildings managed by the General Services
Administration—the federal agency responsible for managing federal
property, or a privately owned building. The Office of the Chief
Immigration Judge, located in EOIR headquarters, oversees the
immigration courts nationwide, articulates operating policies and
procedures, and establishes priorities applicable to the immigration
courts. This office—with approximately 500 immigration judges—is
headed by a Chief Immigration Judge. One Principal Deputy Chief
Immigration Judge and two Regional Deputy Chief Immigration Judges
22A base city categorized as detained is comprised of at least 95 percent of cases
completed in the last year in which respondents were detained. A base city categorized as
non-detained is comprised of at least 95 percent of cases completed in the last year in
which respondents were not detained. A base city that did not meet either of these criteria
is a hybrid base city, which has a combination of both detained and non-detained
respondents. For the purposes of this report, we refer to these locations as immigration
courts.
23In addition, EOIR has a centralized Board of Immigration Appeals at its headquarters,
which primarily decides upon appeals of immigration judge decisions submitted by
respondents or DHS. EOIR also has three immigration adjudication centers—in Virginia
and Texas—where immigration judges preside over hearings via videoconferencing for
respondents located in other locations across the country.
Background
Immigration Court System
Roles and Structure
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GAO-21-104404 Immigration Courts
assist the Chief Immigration Judge, as well as 39 ACIJ positions located
across the courts. See table 1 for a description of roles for selected EOIR
immigration court staff.
Table 1: Roles for Selected Executive Office for Immigration Review (EOIR) Immigration Court Staff
Role
Position description
Assistant Chief Immigration
Judge (ACIJ)
Principal liaisons between the Office of the Chief Immigration Judge at EOIR headquarters and the
immigration courts nationwide, with supervisory authority over immigration judges, court
administrators, and judicial law clerks. An ACIJ is generally located in proximity to the court(s) under
their supervision, and one ACIJ may supervise immigration judges across multiple courts and
states.
Immigration judge
Responsible for exercising their independent judgment and discretion in determining whether
respondents are removable and eligible for any requested (discretionary or mandatory) relief or
protection from removal.
Court Administrator
Manages daily court operations, as well as the court’s administrative staff, which includes clerical
and technical staff, staff interpreters, and legal assistants.
Interpreter
The U.S. government provides interpreters for respondents and witnesses whose command of the
English language is inadequate to fully understand and participate in removal proceedings.
Immigration courts use staff interpreters employed by the immigration court, contract interpreters,
and telephonic interpretation services.
Legal staff
Each immigration judge is supported by several legal staff, including attorney-advisors and judicial
law clerks, whose responsibilities include research and other legal support.
Source: GAO summary of EOIR information. | GAO-21-104404
EOIR classifies its immigration courts into one of three categories—
detained, non-detained, or hybrid. A detained court is one where cases
with detained respondents comprise at least 95 percent of cases
completed in the last year. A non-detained court is one where cases with
non-detained respondents comprise at least 95 percent of cases
completed in the last year.24 EOIR classifies any court that does not meet
the thresholds for either the detained or non-detained court as a hybrid
court. Hybrid courts generally have a combination of cases with both
24EOIR may also consider a court to be non-detained if less than 95 percent of initial case
completions in the last year have a custody status of detained, and more than 90 percent
of detained cases are in the Institutional Hearing Program. The Institutional Hearing
Program is coordinated between EOIR and DOJ’s Bureau of Prisons in partnership with
ICE. As part of the program, ICE identifies federal inmates who may be removable from
the U.S. and initiates their removal proceedings before an immigration judge. Bringing
immigration judges to these inmates for a determination of their removability allows their
immigration case to be resolved prior to their release from federal prison.
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detained and non-detained respondents. As of June 2021, EOIR had 38
hybrid courts, 20 detained courts, and 10 non-detained courts.25
DHS commences formal removal proceedings for an individual by filing a
Notice to Appear—the charging document—in immigration court and
serving it to the respondent. In the document, DHS provides written notice
of the administrative immigration charges against the allegedly removable
respondent and other related information. The Notice to Appear orders
the respondent to appear before an immigration judge to respond to listed
removal charges. In addition to the specific charges, the notice is to
include the nature of the proceedings against the individual, the acts or
conduct alleged to be in violation of law, that the individual may be
represented by counsel, and the date and time of the first hearing of the
removal proceedings, among other items.26
Immigration court staff then schedule the master calendar hearing and
assign the case to a judge’s docket.27 During the initial master calendar
hearing, the immigration judge provides information to respondents of
their rights in removal proceedings and an opportunity for the respondent
to admit or deny the charge(s). OPLA attorneys represent the U.S.
government by providing civil litigation services to ICE in removal
proceedings before EOIR. Respondents may choose to retain legal
counsel (e.g., a private bar attorney) to represent them during immigration
proceedings at no expense to the government.28 Respondents may also
choose to represent themselves without legal counsel.
At the master calendar hearing, issues of removability are generally
resolved by the respondent conceding removability or the immigration
judge otherwise determining that the respondent is removable. The
respondent may then identify the form(s) of relief or protection from
removal they will be seeking. The immigration judge schedules a merits
hearing where removability remains unresolved or a removable
respondent applies for relief. During a merits hearing, the immigration
25EOIR also had three immigration adjudication centers.
268 U.S.C. § 1229(a)(1).
27The Notice to Appear may not contain the date, time, and location of the initial master
calendar hearing, and the court will mail a notice of hearing with this information at a later
date.
288 U.S.C. § 1362.
Overview of the
Immigration Court Process
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GAO-21-104404 Immigration Courts
judge may hear arguments as to removability, if still at issue, and any
claims for, and OPLA opposition to, relief or protection from removal.
Immigration judges also may hear testimony and review documentary
evidence from the respondent and any other witnesses. The judge must
then consider whether the respondent satisfies the applicable eligibility
criteria for any requested relief. The judge may ultimately grant such relief
or issue an order of removal without any associated relief, among other
outcomes. An immigration judge may issue in absentia orders of removal
for respondents who fail to attend a scheduled hearing.29 Figure 1
describes the general process for removal proceedings in immigration
courts.
Figure 1: Steps in Immigration Court Removal Proceedings Process
Note: In this figure, a “Removal order” is not entered in conjunction with any relief or protection from
removal; and “Relief or protection from removal” refers to any form of relief which permits the
respondent to lawfully remain in the U.S. “Other” outcomes include administrative closures,
termination or dismissal of proceedings, and withdrawal of application for admission.
298 U.S.C. § 1229a(b)(5)(A).
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EOIR took several steps in response to the pandemic to adapt its
operations and help address court stakeholders’ health and safety needs.
This includes initially suspending the non-detained docket and instructing
courts to take measures to social distance and procure personal
protective equipment such as masks. See figure 2 for a time line of
actions EOIR took in response to COVID-19 from March 2020 to early
2021.
EOIR Modified
Operations to
Address Health and
Safety Needs but
Lacks Certain
Guidance for Staff
EOIR Modified Operations
during the COVID-19
Pandemic to Help Ensure
the Health and Safety of
Court Staff and Visitors
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Figure 2: Time Line of Selected Executive Office for Immigration Review (EOIR) Actions to Respond to COVID-19
aDeclaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak,
Pres. Proc. No. 9994, 85 Fed. Reg. 15,337 (Mar. 18, 2020) (issued March 13).
bEOIR Office of the Director, Policy Memorandum 20-10, Immigration Court Practices During the
Declared National Emergency Concerning the COVID-19 Outbreak (Falls Church, VA: Mar. 18,
2020).
cEOIR Office of the Director, Policy Memorandum 20-13, EOIR Practices Related to the COVID-19
Outbreak (Falls Church, VA: June 11, 2020).
dAs of the date of publication, immigration courts were still reopening in phases.
From March to late May 2020, prior to issuing its own comprehensive
health and safety guidance for immigration courts, EOIR headquarters
officials told us that they met weekly with ACIJs to develop procedures to
operate safely. Additionally, EOIR instructed detained courts to check
CDC guidance on COVID-19 and modify operations consistent with that
EOIR Initially Instructed
Detained Courts to Follow
CDC Guidance from March
through May 2020
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guidance as it evolved.30 EOIR headquarters officials told us that from
March to late May 2020, guidance was evolving as more information
became known about COVID-19 and how it is primarily transmitted, which
made developing guidance for all immigration courts difficult. For
example, the CDC recommended mask-wearing in early April 2020,
reversing prior guidance to the public.
ACIJs, immigration judges, and court administrators at three detained
courts co-located with ICE detention facilities told us they took measures
early in the pandemic, with support from EOIR headquarters, to help
ensure the health and safety of EOIR court staff, court stakeholders, and
any visitors based on each court’s individual circumstances and
resources. These measures included social distancing, procuring
personal protective equipment (PPE), developing enhanced sanitization
practices, offering different types of leave, and modifying the courts’
document filing practices.
•
Social distancing. ACIJs and court administrators we spoke with at
the three detained courts included in our analysis told us they
implemented social distancing methods.31 For example, at one
detained court, immigration judges moved to other nearby non-
detained courts that were closed at the time and presided over
hearings via video teleconference from those courts. In those cases,
respondents participated via video teleconference from the
courtrooms in the detained court co-located with their detention
facility. Further, officials we interviewed at the three detained courts
told us that immigration judges eventually allowed telephonic
appearances for proceedings so that private bar attorneys and OPLA
attorneys could appear virtually. Courts and judges at these detained
courts instituted telephonic appearances on differing dates. For
example, the first immigration court allowed telephonic appearances
for attorneys beginning on March 20, 2020; the second allowed
telephonic appearances for attorneys beginning on March 24, 2020;
30As of April 2020, CDC guidance recommended mask-wearing, social distancing, hand
washing, cleaning and disinfecting frequently touched surfaces, restricted visitor access,
and extended telework.
31We interviewed court staff and stakeholders at a nongeneralizable sample of six
immigration courts in Massachusetts, Maryland, Georgia, Texas, Arizona, and
Washington. Three of these courts were detained courts; the remaining three were hybrid
courts.
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GAO-21-104404 Immigration Courts
and the third allowed telephonic appearances for attorneys beginning
on April 24, 2020.32
•
PPE. According to EOIR headquarters officials and court staff we
interviewed, procuring PPE in the spring of 2020 was challenging
because the U.S. faced national shortages for items such as hand
sanitizer and face masks. EOIR staff with whom we spoke at the three
detained courts provided examples of how they procured their own
sanitizer or made their own cloth masks. For instance, in one location,
the ACIJ told us that an immigration court staff member made cloth
face masks for everyone at the court. EOIR staff we spoke to across
the six immigration courts included in our analysis told us that the
courts procured their own hand sanitizer for staff, when available.
•
Sanitizing. EOIR headquarters officials stated that they do not expect
or require immigration court staff to engage in any cleaning or
sanitization of immigration court space. They noted that, if additional
cleaning is needed, EOIR headquarters would coordinate with
immigration court building management to assign professional
cleaners. In our interviews with court staff, they discussed additional
sanitization measures they took, particularly early in the pandemic.
For example, court administrators at two detained courts told us they
established procedures in their respective immigration courts to
sanitize EOIR space. For example, according to the two court
administrators, one arranged for the cleaning staff at the co-located
ICE detention facility to sanitize EOIR’s courtrooms between hearings.
The other court administrator told us that immigration court staff
elected to develop a daily schedule where they sanitized high-touch
surfaces, such as doorknobs.
•
Leave options. EOIR headquarters offered administrative leave for
staff who lost childcare, and offered weather and safety leave for staff
with underlying health conditions that increased their risk of serious
32At the third court, individual immigration judges had varying procedures and allowances
for telephonic appearances for attorneys until April 24, 2020, when the court issued
guidelines for telephonic appearances to cover all proceedings. Immigration courts and
judges issued standing orders to establish and communicate modifications to individual
judge practices, or local court operating procedures due to COVID-19 to stakeholders,
respondents, and the public. OPLA headquarters officials told us that at some courts,
immigration judges never allowed telephonic appearances during the COVID-19
pandemic. In those instances, OPLA attorneys had to appear in court in person.
Consistent with DOJ regulations prior to and during the pandemic, attorneys can submit
individual motions to appear telephonically, which immigration judges could grant or deny,
depending on the relevant facts, and exercising their independent judgement and
discretion. 8 U.S.C. § 1229a (Removal proceedings); 8 C.F.R. §§ 1003.0 (Executive Office
for Immigration Review), .10 (Immigration judges), .17 (Appearances), .25 (Form of the
proceeding), .40 (Local operating procedures).
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GAO-21-104404 Immigration Courts
illness with COVID-19. Staff can use weather and safety leave if a
condition prevents them from safely traveling to or performing work at
an approved location. EOIR began to offer weather and safety leave
to all staff in March 2020, according to officials. One immigration
judge with an underlying health condition who took public
transportation to work took weather and safety leave until he received
an official laptop that enabled him to telework, according to the judge.
•
Telework. Immigration judges and other court staff had the option at
times to telework during the pandemic, depending upon factors such
as access to official laptops and electronic files or the need to process
hard copy case files in person. EOIR officials said that immigration
judges typically ruled on motions and conducted other administrative
work when teleworking. According to EOIR headquarters officials,
immigration judges generally cannot conduct hearings while
teleworking since the digital audio recording technology that EOIR
uses during hearings is not available for telework.33 Some court staff,
such as legal assistants, could conduct regular duties during
telework—such as research, legal analysis, and preparing legal
documents—according to court officials. One court administrator
noted that the court’s clerical staff had limited telework opportunities
due to the need to process a large number of hard copy case files in
person.
•
Case filing options. Court administrators we spoke with at the three
detained courts told us they modified processes for stakeholders (e.g.,
private bar or OPLA attorneys) to reduce physical interactions when
filing hard copy documents with the immigration court. For example, in
one detained court location, the court administrator told us that court
staff picked up hard copy filings in the court’s parking lot so that
attorneys would not have to enter the ICE detention facility with which
the immigration court was co-located. EOIR staff at the three detained
courts we spoke with told us their courts had options for filing
documents electronically for a limited time. OPLA or private bar
attorneys at the six immigration court locations included in our
analysis —including non-detained courts—told us they had options for
electronic filing. Private bar or OPLA attorneys from five locations with
email filings said that they took advantage of the option to file
documents electronically. The sixth location conducted filings through
and relied on the EOIR Courts and Appeals System, EOIR’s
33EOIR officials told us that immigration courts may use WebEx to enable immigration
judges to conduct hearings while teleworking.
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GAO-21-104404 Immigration Courts
electronic filing system.34 EOIR continued to deploy this system to
additional immigration courts during the pandemic.35
In addition to the modifications that individual courts implemented early in
the pandemic, EOIR formally established a COVID-19 response
committee in April 2020, comprised of senior EOIR headquarters
officials.36 EOIR officials told us that they started meeting weekly in early
March 2020 to respond to COVID-19, but formally established the
committee in April 2020. This committee is to oversee EOIR’s response to
the pandemic, including evaluating external guidance from sources such
as the CDC and DOJ and applying that external guidance to EOIR
operations, as appropriate. In addition, the committee is to maintain
information on immigration courts’ operational status. Members of the
COVID-19 response committee at EOIR headquarters also make
decisions regarding how to respond to any such exposures in the courts.
According to EOIR documentation and officials, when an ACIJ learns that
an individual in EOIR space in an immigration court is symptomatic of or
positive with COVID-19, the ACIJ is to work with members of the COVID-
19 response committee to respond.37 First, the ACIJ is to send an incident
report form to the committee containing information on whether the
individual received a positive COVID-19 test, which symptoms the
34EOIR placed certain limits on email filings, such as page limits, that often presented
other challenges, according to private bar and OPLA attorneys. EOIR headquarters
deactivates these email filing inboxes 60 days after immigration courts resume non-
detained hearings by federal judicial district, according to EOIR policy. For example, if a
hybrid court resumes non-detained hearings, EOIR headquarters may deactivate email
filing 60 days after the resumption of non-detained hearings for all immigration courts in
that same judicial district.
35As of March 2020, 14 immigration courts had deployed the EOIR Courts and Appeals
System; as of March 2021, 47 immigration courts had deployed it. However, noncitizens
cannot be served through the system, and OPLA attorneys continue to employ paper
filings in some instances, according to OPLA.
36These officials include the Acting Deputy Director for EOIR and representatives from the
Office of Policy, the Office of the Director, Office of the General Counsel, the Office of
Administration, the Office of the Chief Immigration Judge, and the Office of Information
Technology.
37For the purposes of this report, EOIR space refers to several areas, including staff
offices, conference rooms, a lobby, filing window, elevator lobbies, judges’ chambers, and
courtrooms. EOIR space is typically located within a federal building managed by the
General Services Administration, privately owned building, or within ICE detention
facilities.
EOIR Headquarters
Established a COVID-19
Response Committee in April
2020
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GAO-21-104404 Immigration Courts
individual exhibited, where the individual traveled within EOIR space, and
whether the ACIJ has identified any close contacts.38
Then, the COVID-19 response committee decides whether to close and
clean the immigration court, or take any other necessary actions. EOIR
headquarters officials told us they coordinate with the General Services
Administration to arrange deep-cleanings for immigration courts located
within federal buildings. For those immigration courts that are co-located
with ICE detention facilities, EOIR headquarters officials told us they
coordinate with the facility’s management should EOIR need to arrange
deep-cleanings of its space within the facility, or take other actions.39
Based on the information that ACIJs provide, the committee also decides
whether any EOIR court staff or contractors should quarantine following a
COVID-19 exposure. If the committee decides that a deep-cleaning is
necessary, then the court can resume operations after the cleaning is
completed. Lastly, the ACIJ is responsible for notifying any known close
contacts and asking them to undertake a quarantine period or to obtain a
test for COVID-19, consistent with the committee’s decision regarding the
specific exposure. See figure 3 for more information on EOIR’s process
for responding to COVID-19 exposures at immigration courts.
38As of October 2020, EOIR defines close contact as anybody who was within 6 feet of the
individual in question for a total of 15minutes over a 24-hour period.
39EOIR’s deep-cleanings are consistent with CDC’s guidelines for cleaning and
disinfecting, according to EOIR officials.
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Figure 3: Executive Office for Immigration Review’s (EOIR) Process for Responding to COVID-19 Exposures at Immigration
Courts
In April 2020, EOIR began developing reopening plans for all immigration
courts, according to EOIR headquarters officials, and distributed the final
plans to all detained and non-detained immigration courts in late May
2020. The reopening plans include guidance to all immigration courts on
processes for deep-cleaning, social distancing, procuring PPE,
teleworking, and media and public access. The plans also include court-
specific instructions such as floorplans and maximum capacities for
courtrooms. One ACIJ from a hybrid court stated these plans provided
helpful information that guided the court’s preparations and procedures
when the court resumed non-detained hearings on a limited basis. In
addition to these plans, EOIR headquarters sent signage to immigration
courts to post throughout EOIR space, which reiterated social distancing
and mask-wearing requirements. Officials from the six immigration courts
included in our analysis told us that the immigration courts posted the
signage and blocked off seating in courtrooms to comply with social
distancing floorplans provided in the reopening plans.
EOIR Distributed Reopening
Plans in May 2020 and Began
Reopening Non-Detained
Courts with Modified
Operations in June 2020
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GAO-21-104404 Immigration Courts
EOIR began resuming some non-detained hearings on June 15, 2020,
based on DOJ’s phased reopening process. Through this process,
according to DOJ documentation, the department’s Justice Management
Division is to work with the Executive Office for U.S. Attorneys and
regional U.S. Attorney’s Offices to determine when specific judicial
districts are to enter new phases of reopening. DOJ’s Justice
Management Division is to notify EOIR when an immigration court can
enter a new phase of reopening, based on the division’s coordination with
the Executive Office for U.S. Attorneys and the respective U.S. attorneys
across the country, according to EOIR officials. DOJ uses this process as
of June 2021, according to officials. According to EOIR headquarters
officials, after receiving word from DOJ, EOIR headquarters typically
gives immigration courts about 2 weeks of preparation time before
entering a new phase of reopening.40 According to EOIR headquarters
officials, in the first phase of reopening, non-detained courts resumed a
limited number of merits hearings. In the second phase of reopening,
officials stated that some non-detained courts resumed a limited number
of master calendar hearings in addition to merits hearings.
Detained, hybrid, and non-detained immigration courts made several
other modifications throughout 2020 to reduce the number of people
physically present in EOIR space, and to facilitate social distancing. As
recommended in the reopening plans, the six immigration courts included
in our analysis modified schedules for immigration judges and other court
staff to reduce the number of people physically present in EOIR space,
according to officials at those courts. Examples of modified schedules
include rotating groups of immigration judges and staff into the court on a
biweekly basis, or reducing judge schedules to 3 days in court each
week. As previously mentioned, officials at all six of the immigration
courts told us their judges allowed telephonic appearances for attorneys.
The methods through which attorneys could participate in telephonic
appearances varied by judge. According to private bar attorneys in one
location, one immigration judge requested that attorneys send their phone
numbers before hearings for the immigration judge to call. Another judge
preferred to use a teleconference line. However, according to private bar
40According to an April 2020 DOJ memorandum, the Justice Management Division uses
data from several sources to monitor regions throughout the U.S., which enables the
division to identify those regions approaching gating thresholds for different phases of
reopening. When the division identifies that a region is approaching the gating threshold
for a new phase of reopening, officials provide data for that region to the local U.S.
Attorney. That office then decides whether to enter a new phase of reopening. If the U.S.
Attorney decides to enter a new phase of reopening, it is to convey that decision to the
Justice Management Division, which is to convey that decision to EOIR headquarters.
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GAO-21-104404 Immigration Courts
attorneys, OPLA attorneys, and immigration judges we interviewed,
respondents continued to appear in person for their hearings in some
courts during COVID-19 once they reopened.
Since March 2020, DOJ and EOIR have distributed various guidance
documents and reminders to immigration court staff regarding COVID-19
protocols that included health and safety requirements, such as the
expectation of mask-wearing while in EOIR space. However, none of the
guidance documents distributed to immigration courts that we reviewed
include health and safety instructions tailored to the immigration
courtroom setting. In particular, in December 2020 and May 2021, EOIR
headquarters officials told us that EOIR expects all individuals present in
a courtroom to wear masks for the duration of the proceedings and that
EOIR headquarters sent out various reminders to immigration courts
reiterating this expectation throughout the pandemic.41 However, our
analysis of EOIR’s guidance documents indicates that they do not
specifically direct EOIR court staff and court visitors to wear masks in
courtrooms for the duration of hearings, though EOIR headquarters
officials’ stated in May 2021 that this is the agency’s continued
expectation.
In May 2020, and later in February 2021, DOJ issued department-wide
memoranda regarding COVID-19, in which DOJ categorized courtrooms
as a nontraditional office setting where staff should follow guidance
tailored to the relevant locations and circumstances. EOIR space at
immigration courts comprises several areas, including staff offices,
conference rooms, a waiting room, reception area, elevator lobbies,
breakrooms, and courtrooms (see fig. 4). Immigration courtrooms are not
typical office settings and can present unique circumstances for
addressing the health and safety needs of EOIR staff and court visitors.
For example, although individuals present in EOIR courtrooms might be
able to maintain 6 or more feet of social distance, immigration court
hearings may last for several hours in closed rooms. According to private
bar attorneys we interviewed, some immigration courtrooms—particularly
those in detained courts—can be small spaces where parties cannot
maintain 6 feet of social distance. According to CDC guidance, multiple
factors influence COVID-19 exposure risk, to include the duration of
41EOIR officials told us that the one exception to masks is for interpreters who can wear
face shields in courtrooms.
EOIR Developed
Guidance on Health and
Safety Measures, but
Mask-Wearing Guidance
Is Not Tailored to the
Courtroom Setting
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exposure and environmental factors such as how well ventilated a space
is.42
42CDC, Deciding to Go Out (Oct. 28, 2020), https://www.cdc.gov/coronavirus/2019-
ncov/daily-life-coping/deciding-to-go-out.html. CDC, Appendix A: Close Contact (Mar. 11,
2021),
https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/appe
ndix.html#contact. The CDC states that COVID-19 viral particles spread between people
more readily indoors than outdoors. Indoors, the concentration of viral particles is often
higher than outdoors. When indoors, ventilation mitigation strategies can help reduce viral
particle concentration. Ventilation improvements can reduce the spread of COVID-19.
CDC, Ventilation in Buildings (Washington, D.C.: Mar. 23, 2021).
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Figure 4: Example of an Executive Office for Immigration Review (EOIR) Immigration Court Floorplan
Regarding mask-wearing expectations, in particular, EOIR distributed
several guidance documents to immigration courts since March 2020 that
included instructions on mask-wearing. EOIR officials told us that they
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GAO-21-104404 Immigration Courts
regularly sent reminders to immigration courts with health and safety
instructions, including that all staff and visitors should wear masks in
courtrooms with the exception of translators who may wear face shields
instead. However, some of the guidance documents and reminders we
reviewed that EOIR sent to immigration courts included caveats for mask-
wearing in EOIR space and were not tailored to the courtroom setting. For
example:
•
In April 2020, DOJ issued a department-wide memorandum
instructing all staff to wear masks to the extent practicable, but this
guidance was not tailored to courtroom settings. This memorandum
states that individuals may remove masks if they can maintain 6 feet
of distance. Further, the DOJ memorandum notes that these
instructions are primarily pertinent to office-like settings, and that the
guidance therein should not supersede DOJ component-specific
guidance, including any guidance for courts.
•
In June 2020, EOIR issued a policy memorandum instructing visitors
to EOIR space to wear masks, social distance, and comply with other
health and safety measures. EOIR headquarters officials said that this
memorandum made clear that everyone present in the courtroom
must wear masks for the duration of a hearing. However, the
memorandum did not include instructions that were tailored to the
courtroom setting, and the memorandum was specifically targeted to
visitors and not EOIR staff.43
•
In several communications to EOIR staff from the summer of 2020
through the winter of 2020, the EOIR Director instructed immigration
court staff to wear masks in EOIR space unless they could stay 6 feet
apart, in which case staff could remove their masks. These
communications were inconsistent with EOIR headquarters officials’
stated expectation that all individuals present in a courtroom must
wear masks for the duration of hearings, and further did not tailor
mask-wearing guidance to the courtroom setting.
•
When reopening non-detained courts, EOIR has published notices on
these courts’ websites stating that visitors and EOIR staff should wear
masks throughout EOIR space, including in courtrooms. However,
these notices only applied to non-detained courts that have resumed
hearings and are not published on detained courts’ websites as of
April 2021.
43EOIR Office of the Director, Policy Memorandum 20-13, EOIR Practices Related to the
COVID-19 Outbreak (Falls Church, VA: June 11, 2020).
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Eight out of 12 immigration judges with whom we spoke said they
understood that everyone present in a courtroom, including judges, must
wear masks in courtrooms. Three immigration judges said that they have
used methods to enforce mask-wearing in their courtrooms, specifically.
For example, according to the three judges, one made an attorney leave
the courtroom to retrieve a mask before proceeding with a hearing,
another corrects visitors who wear masks improperly, and a third judge
relies on building security to ensure that all individuals in the courtroom
wear masks.
However, based on our interviews with EOIR staff and court stakeholders
we identified three locations where some courtroom practices were not
fully consistent with EOIR headquarters officials’ expectation for mask-
wearing in courtrooms. For instance, private bar attorneys in one non-
detained court location said that an immigration judge asked court visitors
to remove their masks during in-person hearings on a regular basis to
better hear their words. In a detained court location, one immigration
judge allowed a visitor in the courtroom to remove a mask during a
hearing for health reasons, although the judge was uncertain whether the
visitor should have been allowed to remove the mask, according to the
judge. EOIR headquarters told us that in the event that an individual has
to remove a mask during a hearing, that individual should leave the
courtroom and take a break from the hearing before returning to the
courtroom wearing a mask. In another non-detained court location, an
immigration judge told us that another judge at the court did not always
wear a mask during hearings even if there were other people in the
courtroom. In response, the ACIJ at that court instructed and routinely
reminded court staff and immigration judges to wear masks in hearings.
In February 2021, the Assistant Attorney General for Administration
issued a DOJ-wide memorandum establishing detailed mask guidance,
stating that masks may only be removed when alone in an office with a
closed door, or when eating or drinking and maintaining at least 8-10 feet
of distance from others.44 Further, social distancing is not a substitute for
mask-wearing, according to the memorandum. The memorandum also
directs DOJ components with nontraditional facilities, such as courts, to
direct their workforce to follow component-specific guidance appropriately
tailored to their locations and circumstances. EOIR officials said that
EOIR space encompasses courtroom settings, and that the same
44Department of Justice, 2021 Department of Justice COVID-19 Workforce Safety Plan
(Washington, D.C.: Feb. 16, 2021).
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GAO-21-104404 Immigration Courts
guidance should apply to all EOIR space to avoid confusion. However,
the courtroom setting is unique—stakeholders, respondents, and
immigration court staff may be present in the courtroom setting for
extended durations of time—and the same guidance that applies to
individual offices, breakrooms, or other areas of EOIR space may not be
tailored to the specific circumstances of the courtroom setting. Following
its release, EOIR officials distributed the DOJ memorandum to all EOIR
staff at immigration courts. However, EOIR has not developed guidance
tailored to the immigration courtroom setting as of May 2021.45
In June 2020, we reported that providing clear, consistent communication
in the midst of a national emergency—among all levels of government—is
key.46 Further, federal internal control standards state that management
should effectively document internal control activities to establish and
communicate the who, what, when, where, and why of internal control
execution to personnel responsible for internal controls.47 These
standards also state that management documents in policies for each unit
its responsibility for an operational process’s objectives, related risks, and
control activity design, implementation, and operating effectiveness.
Management communicates to personnel the policies and procedures so
that personnel can implement the control activities for their assigned
responsibilities. The unique circumstances of immigration courtroom
settings increase the need for EOIR to develop tailored guidance, in
accordance with DOJ’s February 2021 memorandum and EOIR
headquarters officials’ mask-wearing expectations.48 By issuing guidance
on mask-wearing that is tailored to the immigration courtroom, EOIR can
better ensure that immigration court staff and visitors clearly understand
mask-wearing requirements, particularly as public health guidance
evolves, and possibly lower the risk of individuals transmitting COVID-19
while in immigration court hearings.
45In May 2021, the Office of Management and Budget notified federal agencies that fully
vaccinated individuals no longer need to wear masks in federal space. However, this
guidance did not include any details on nontraditional offices spaces, such as courtrooms.
46GAO, COVID-19: Opportunities to Improve Federal Response and Recovery Efforts,
GAO-20-625 (Washington, D.C.: June 25, 2020).
47GAO-14-704G.
48In technical comments on a draft of this report, in August 2021, EOIR officials told us
that they distributed additional mask-wearing guidance in May and July 2021; however,
EOIR did not provide documentation of this guidance. We will continue to follow up with
EOIR to determine the extent to which these actions fully address our recommendation
that EOIR develop mask-wearing guidance that is tailored to the immigration courtroom.
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GAO-21-104404 Immigration Courts
Early in the pandemic, EOIR developed internal guidance on its
processes for responding to COVID-19 exposures at immigration courts;
however, the guidance is out of date as of February 2021. In April 2020,
EOIR headquarters developed a document outlining the process EOIR
headquarters officials are to follow, and the criteria officials are to use, to
make decisions about whether and how to respond to reported COVID-19
exposures in immigration courts. This includes decisions on when to
close and deep-clean a court, when staff should be told to quarantine,
and when previously sick staff can return to the office.
However, the April 2020 document uses an outdated definition of a close
contact for criteria as of May 2021 and does not reflect several updates to
EOIR’s close contact definition throughout the pandemic. In particular, the
April 2020 guidance’s criteria for a close contact was a person within 6
feet of a person who tested positive for COVID-19 for 10 minutes or
longer, or in which a person was exposed to any bodily fluid from a
person who tested positive. EOIR reflected several changes in its criteria
for a close contact in different iterations of the incident report form—the
form court staff use to report possible COVID-19 exposures to the
COVID-19 response committee, as previously discussed. EOIR did not
carry over those changes to the EOIR headquarters guidance for
responding to COVID-19 exposures at immigration courts.49 In July 2020,
the incident report form referred to close contacts as any individuals
within 6 feet of an infected or symptomatic individual. In October 2020,
the incident report form referred to close contacts as any individuals
within 6 feet of an infected or symptomatic individual for fifteen minutes or
more. In November 2020, the incident report form referred to close
contacts as any individuals within 6 feet of an infected or symptomatic
individual for fifteen minutes or more over a 24-hour period.
EOIR officials said that EOIR stopped relying on its April 2020 document
to guide its processes for responding to reports of COVID-19 exposures
in immigration court because it contained outdated information, but EOIR
has not taken steps to update it. Further, officials said that until December
2020, one senior official at EOIR headquarters managed the process for
responding to COVID-19 exposures at immigration courts. When that
official left EOIR, other EOIR headquarters officials stated they had to
49When the COVID-19 response committee receives the incident report form from an
immigration court, the committee determines what actions to take in response to the
possible COVID-19 exposure (see fig. 4 for an explanation of how EOIR responds to
COVID-19 exposures at immigration courts).
EOIR’s Internal Guidance
on Processes for
Responding to COVID-19
Exposures in Immigration
Courts Is Out of Date
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GAO-21-104404 Immigration Courts
review the previous official’s notes to find documentation of prior court-
reported exposures and actions taken in response.
Additionally, three of the 12 immigration judges we spoke with told us that
they did not know the process that EOIR headquarters officials use to
determine how to respond to COVID-19 exposures at the immigration
courts. All three of those immigration judges stated that they would like
to better understand this process to feel more assured of their safety at
work. Officials at EOIR headquarters said that they did not share the April
2020 document outlining how to respond to COVID-19 exposures, or any
other information on how EOIR headquarters responds to COVID-19
exposures, with immigration judges. Instead, these officials told us that
immigration judges can review the incident report form to understand
EOIR headquarters’ processes and decision-making. However, the
incident report form collects detailed information about possible COVID-
19 exposures from immigration courts; the form does not include any
information on how the COVID-19 response committee uses that
information to decide how to respond to COVID-19 exposures (e.g.,
closing and cleaning the court, telling individuals to quarantine, etc.).
As previously noted, federal internal control standards state that
management should effectively document its internal controls.50 These
standards also note that documentation is a necessary part of an effective
internal control system, which provides a means to retain organizational
knowledge and mitigate the risk of having such knowledge limited to a
few personnel, as well as a means to communicate that knowledge, as
needed, to external parties. Further, management should communicate to
personnel the policies and procedures so that personnel can implement
the control activities for their assigned responsibilities. We have also
reported that it is important for the federal government to disseminate
clear, updated information when responding to changing circumstances
during a pandemic.51
Updating its internal guidance would help EOIR ensure that the agency
has documented processes for responding to COVID-19 exposures in
immigration courts that are current and reflect the evolving circumstances
of the pandemic. In addition, documenting up-to-date processes would
ensure that they are available in the event of staff turnover. Further,
50GAO-14-704G.
51GAO, Influenza Pandemic: Sustaining Focus on the Nation’s Planning and Pandemic
Efforts, GAO-09-334 (Washington, D.C.: Feb. 26, 2009).
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distributing the updated internal guidance to all EOIR staff at immigration
courts—including ACIJs, immigration judges, court administrators, and
other court staff and contractors—would help EOIR ensure that its staff
understand the agency’s processes for responding to COVID-19
exposures and feel more assured of their own health and safety.
EOIR headquarters has used several centralized communication
mechanisms to provide some information to the public and court
stakeholders (e.g., respondents, private bar attorneys, private bar
associations, and OPLA attorneys) on immigration court operations
during the pandemic. According to EOIR officials, EOIR also used these
same communication mechanisms to communicate with stakeholders and
the public prior to the pandemic.52
Specifically, EOIR has used its social media accounts, email, and its
public website, among other mechanisms, to communicate with
stakeholders and the public.
•
Social media. EOIR has used its Twitter feed and Facebook page to
provide general announcements about court closures and updates on
immigration court operations nationwide, such as when a non-
detained court will reopen. According to EOIR officials, headquarters
staff would work past regular business hours to post court closure
announcements in as timely a manner as possible for stakeholders.53
The information EOIR provided in its court closure announcements
evolved over the course of the pandemic (see fig. 5). Specifically, in
March and early April 2020, EOIR attributed several court closures to
COVID-19. Then, from late April through October 2020, EOIR did not
52According to a September 2019 DOJ policy memo, all EOIR communications with
external stakeholders and the public must be approved by DOJ’s Public Affairs Office prior
to being released.
53EOIR officials also noted that some social media posts require DOJ approval before
posting.
EOIR Did Not
Regularly Engage
with Stakeholders
during the COVID-19
Pandemic
EOIR Used Existing
Communication
Mechanisms to Share
Some Information with
Stakeholders during the
Pandemic
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GAO-21-104404 Immigration Courts
publicly announce that it closed a court due to a known or potential
COVID-19 exposure. EOIR’s closure announcements on Twitter, for
example, stated that EOIR closed a court but did not provide any
reason for the closure. According to EOIR officials, in November
2020, EOIR modified court closure announcements to include COVID-
19 as the reason for court closures. At times, EOIR provided
additional information in its social media posts, such as whether EOIR
was cleaning the court and had already notified any close contacts.
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Figure 5: Changes in the Executive Office for Immigration Review’s (EOIR) Court Closure Announcements on Twitter during
the COVID-19 Pandemic
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GAO-21-104404 Immigration Courts
•
Listserv emails. According to EOIR headquarters officials, EOIR
uses a GovDelivery listserv to provide similar announcements, as
seen on social media, to approximately 28,000 subscribers.54 Listserv
subscribers can include private bar attorneys, OPLA attorneys,
representative organizations such as the American Immigration
Lawyers Association, and members of the public.
•
EOIR’s operational status webpage and court webpages. EOIR
maintains a central webpage, created during the pandemic, that
provides the agency’s operational status, including links to other
information, like the agency’s public health notices and Twitter posts.
Each immigration court also has a webpage that provides information
such as a court’s contact information and operational status. During
the pandemic, EOIR has included additional information on the courts’
webpages, such as modifications to individual courts’ operations and
health and safety protocols (e.g., wearing face masks and social
distancing).
•
Public Information Officer. Public Information Officers are regional
communications staff who serve as a liaison between EOIR
headquarters, court stakeholders, and the public. According to EOIR
headquarters officials, these officers serve in six regions in the U.S.
and are responsible for providing information from EOIR headquarters
to the public regarding policy changes nationwide and local
immigration court operations, and to assist EOIR headquarters in
responding to stakeholder comments and requests.
•
Standing orders. Immigration courts and judges issued standing
orders to establish and communicate modifications to individual judge
practices, or local court operating procedures due to COVID-19, to
stakeholders, respondents, and the public.55 EOIR publishes standing
orders on its webpage. COVID-19-related modifications to court
operations, as described earlier, addressed by these standing orders
include procedures for attorneys to appear for hearings, both master
and merit hearings, over the phone or through a video call using
WebEx. Additionally, standing orders addressed procedures for email
filing and limitations to these filings, such as filing time frames and
54GovDelivery is a web-based email subscription service system that allows members of
the public to receive news and information on selected topics available on federal
agencies’ websites.
55Standing orders are court documents available to the public that outline individual judge
courtroom practices, or local rules and operating procedures for an immigration court.
Standing orders for an entire court may not be inconsistent with 8 C.F.R. ch. V, and must
have majority written concurrence among immigration judges within the court, and written
approval of the Chief Immigration Judge. 8 C.F.R. § 1003.40.
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GAO-21-104404 Immigration Courts
page limits. Lastly, standing orders addressed health and safety
requirements for visitors such as restricting individuals experiencing
COVID-19 symptoms from entering the immigration court space (filing
window, lobby, and courtroom).
Stakeholders we spoke to, such as private bar and OPLA attorneys, said
that they had limited opportunities to engage with EOIR during the
pandemic. Additionally, stakeholders stated that these same limitations
existed prior to the pandemic; however, COVID-19 heightened
stakeholders’ concerns over these limitations. In particular, during the
pandemic, these private bar and OPLA attorneys told us that they
encountered challenges navigating changes to EOIR’s court operations
and obtaining information from EOIR to help address their operational
and health and safety concerns.
We have previously reported on the importance of positive working
relations between participants from different entities when responding to
an emergency.56 In addition, we have reported that as agencies consider
local conditions during the COVID-19 pandemic, they should share
information and cooperate with other agencies, or stakeholders, located
in the same area.57 In the past, EOIR held regular stakeholder meetings.
However, EOIR officials said that EOIR decided not to hold these
stakeholder meetings beginning in the fall of 2017 through April 2021.
According to EOIR’s webpage listing information on public events, all
of EOIR’s meetings with stakeholders during that time were sporadic.
Further, the meetings focused on informing stakeholders about EOIR’s
plans to implement new technology (specifically, EOIR’s electronic case
filing system and WebEx technology to conduct virtual hearings), or new
56GAO-12-1022.
57GAO, Federal Workforce: Key Considerations for Agencies Returning Employees to
Workplaces during Pandemics, GAO-20-650T (Washington, D.C.: June 25, 2020).
COVID-19 Pandemic
Highlighted Long-Standing
Limitations in EOIR’s
Engagement with
Stakeholders
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processes such as a case flow processing model and the accreditation of
organizations and recognition of non-attorney representatives.58
Private bar association representatives and private bar attorneys we
spoke with stated that historically, prior to 2017, stakeholders could pose
questions to EOIR senior management during those regular stakeholder
meetings and engage in a collaborative dialogue to help address
challenges that attorneys and courts were facing. Association
representatives also stated that they had been able to resolve challenges
through these meetings and thought they were helpful as information-
sharing forums. However, during the pandemic, these stakeholders said
they were unable to raise concerns or questions with EOIR about matters
such as immigration court policy or court operations, and have those
concerns or questions addressed in a satisfactory manner through two-
way communication.
For example, during the COVID-19 pandemic, stakeholders we spoke
with noted that they experienced challenges navigating the modifications
to court operations that EOIR implemented at some courts. Specifically,
stakeholders experienced challenges with EOIR’s process to notify the
public and stakeholders about COVID-19 exposures in the courts and
rescheduled hearings, and they lacked two-way communications to
engage with EOIR to help address their concerns.
COVID-19 exposure notifications. While they may receive EOIR’s
announcements about court closures via social media or listserv emails,
all private bar attorneys and OPLA attorneys at four of the six locations
we spoke with said that EOIR had not shared sufficient information about
58In April 2021, EOIR established a revised case flow processing model to increase docket
efficiency and reduce the number of in-person hearings for dealing with preliminary and
routine matters. This case flow processing model applies to non-detained cases in which a
representative, as defined in 8 C.F.R. 1001.1(j) and 1292.1, files a Form EOIR-28 at least
15 days before a master calendar hearing. For such cases, the court will vacate the
master calendar hearing, and an immigration judge may decide the issue of removability
based on written pleadings and filed evidence. The judge may also request additional
evidence and briefings or schedule a hearing on removability. Executive Office for
Immigration Review, Revised Case Flow Processing Before the Immigration Courts, OCIJ
PM 21-18 (Washington, D.C.: Apr. 2, 2021).
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COVID-19 exposures and related court closures.59 Private bar attorneys
said this was a vital concern for them because they could not determine if
they had been exposed to COVID-19 while in EOIR space based solely
on the information EOIR provided through its social media and listserv
emails. Even after EOIR began announcing more consistently in
November 2020 that COVID-19 was the reason for court closures, two
private bar attorneys stated that they still did not have sufficient,
actionable information, such as the time and location of the exposure, to
determine if they had been exposed to COVID-19 while in EOIR space.
Court staff, per EOIR’s external communications policy, are to redirect
any stakeholder inquiries to EOIR headquarters officials or EOIR’s public
information officers.60 ACIJs and court administrators we interviewed
across three locations told us they were frustrated because EOIR did not
permit them to respond to stakeholders’ questions about COVID-19
exposures or contact tracing processes.
Private bar attorneys in four locations noted that the public information
officers did not provide any additional, actionable information that would
allow them to determine whether it was necessary to quarantine or be
tested for COVID-19. Because of this concern, some stakeholders’
course of action was to engage with EOIR through formal requests for
information or through civil complaints during the COVID-19 pandemic.
For example, in August 2020, a coalition of three immigration law and
attorney organizations filed a Freedom of Information Act request to
obtain detailed information on EOIR’s policies and procedures to respond
to COVID-19, including health and safety measures and criteria to open
or close courts, and COVID-19 exposures at immigration courts, among
other things.61 Additionally, in July 2020, the New Jersey Chapter of a
59OPLA attorneys at the other two locations that we spoke with said they received informal
notifications from the ACIJ or court administrator about COVID-19 exposures. However,
OPLA attorneys from one location said they do not receive formal communications from
EOIR headquarters regarding COVID-19 exposures, and attorneys from the other location
said that formal communications from EOIR do not always include the reason, such as
COVID-19 exposures, for court closures.
60On September 24, 2019, DOJ’s Deputy Attorney General released memorandums
indicating that all external communications, such as stakeholder communication, from
EOIR must be approved in advance by the Director of the Office of Public Affairs.
However, this directive is not applicable to EOIR internal communications.
61Freedom of Information Act Request from Am. Immigration Lawyers Ass’n, Nat’l
Immigration Project & Am. Immigration Council to EOIR for COVID-19-related Records,
AILA Doc. No. 20080338 (Aug. 4, 2020), available at
https://www.aila.org/infonet/foia-request-seeks-information-on-immigration.
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GAO-21-104404 Immigration Courts
national immigration attorney group filed a civil complaint against EOIR
alleging that EOIR compelled attorneys to appear in person for non-
detained hearings despite their health and safety concerns during the
pandemic.62
Rescheduling hearings. Court officials across the six immigration courts
included in our analysis said they had to reschedule hearings during the
pandemic due to reasons such as illnesses, quarantines related to
possible COVID-19 exposures, and alternating or rotating immigration
judge schedules. Court stakeholders raised concerns to us about
challenges with preparing for and participating in hearings because of
immigration judges’ sometimes unpredictable schedules during the
pandemic. Private bar attorneys from four courts in our sample and OPLA
attorneys from four courts, respectively, told us that EOIR, at times, did
not explain or provide sufficient advance notice of these schedule
adjustments.
Further, EOIR did not provide judges’ rotation schedule to stakeholders
through the first 9 months of the pandemic. According to EOIR staff,
hearings for judges out on rotation, for example, were typically cancelled
and rescheduled to a later date. One ACIJ acknowledged that the court
did not always successfully notify attorneys and respondents of
rescheduled hearings, and at times, respondents and attorneys appeared
for a hearing that was canceled and rescheduled. Private bar attorneys
from two courts we spoke with said respondents and attorneys wasted
time and resources preparing for hearings that were rescheduled
62Am. Immigration Lawyers Ass’n, N.J. Chap. v. EOIR, No. 20-9748, Doc. 1, Complaint for
Injunctive and Declaratory Relief (D. N.J. Jul. 31, 2020). EOIR, at that time, provided
attorneys the option to appear in person for hearings via video teleconference with
respondents at a separate courtroom while the court staff and judge were physically
located in an adjacent courtroom. The U.S. District Court denied plaintiffs’ emergency
motion for a preliminary injunction to stop EOR compelling in-person appearances at
Newark Immigration Court and to require the Newark court to provide attorneys with the
option to appear remotely via video due to the COVID-19 pandemic. Am. Immigration
Lawyers Ass’n, N.J. Chap. v. EOIR, No. 20-9748, Doc. 39, Opinion Denying Plaintiffs’
Emergency Motion for a Preliminary Injunction (D. N.J. Oct. 16, 2020). In the
accompanying order, the court also denied the defendants’ request to dismiss the case as
moot. Am. Immigration Lawyers Ass’n, N.J. Chap. v. EOIR, No. 20-9748, Doc. 40, Order
Denying Plaintiffs’ Motion for Preliminary Injunction (without prejudice) and Denying
Defendants’ Request to Dismiss Matter as Moot (D. N.J. Oct. 16, 2020). On February 16,
2021, this case was terminated, and all of plaintiffs’ claims were dismissed, without
prejudice, following promulgation of Policy Memorandum 21-03, containing several
provisions related to the use of WebEx for hearings in the immigration courts, and
subsequent discussions between the parties regarding a stipulation of dismissal of the
case. See Am. Immigration Lawyers Ass’n, N.J. Chap. v. EOIR, No. 20-9748, Doc. 45,
Stipulation of Dismissal without Prejudice (D. N.J. Feb. 16, 2021).
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GAO-21-104404 Immigration Courts
unexpectedly and that unnecessary trips to the immigration court posed
potential health risks to attorneys, respondents, and witnesses who may
inadvertently expose themselves to COVID-19.
Due to these concerns, one private bar association’s course of action was
to file a Freedom of Information Act request in September 2020 with
EOIR to release immigration judge schedules so that private bar
attorneys could anticipate when hearings would not go forward. According
to attorneys who submitted the information request, their previous
repeated attempts to obtain the judges’ schedule from the immigration
court staff and the public information officer failed, including three letters
from two U.S. senators to EOIR on their behalf.
EOIR officials identified factors that affected how they engaged with
stakeholders during the pandemic. One factor was the centralization of
communication within headquarters. According to EOIR officials, EOIR
headquarters is responsible for providing information on COVID-19
exposures, contact tracing, and other related policies to the public to
maintain consistency and prevent the release of protected or false
information. EOIR officials said that this practice is consistent with EOIR’s
general communication practices, in place prior to the pandemic, whereby
court staff are to redirect all external inquiries to the public information
officers or EOIR’s Communications and Legislative Affairs Division for a
response. Court administrators and ACIJs at all six locations confirmed to
us that EOIR does not permit them to respond directly to COVID-19-
related questions from stakeholders or the public. Another factor EOIR
headquarters officials identified was balancing information sharing with
individual privacy considerations. EOIR officials told us that they believed
they could not share more specific information with stakeholders and the
public about COVID-19 exposures at immigration courts without
potentially violating individuals’ medical privacy. Further, EOIR officials
told us that providing information to the public on judges’ rotation
schedules could pose security risks to the judges.
While these factors are important to ensuring consistent and accurate
messaging and protecting privacy, EOIR could take additional steps to
strengthen its engagement with stakeholders. Federal internal control
standards call for agencies to communicate with and obtain quality
information from external parties, such as stakeholders. Open, two-way
external reporting lines allow for this communication.63 Engagement with
63GAO-14-704G.
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GAO-21-104404 Immigration Courts
external parties—particularly during an emergency such as a pandemic—
can help an agency achieve its objectives and address related risks. In
May 2021, EOIR held its first stakeholder meeting in nearly 4 years, and
EOIR officials stated they have plans to hold future meetings. However,
as of May 2021, EOIR has not provided us with documentation to verify
any such plans, and it is too soon to tell how EOIR will implement them
moving forward. Taking steps to regularly engage with immigration court
stakeholders in two-way communications would help not only address
stakeholders’ concerns during the COVID-19 pandemic, such as
immigration court operations and stakeholders’ health and safety
concerns, but also promote positive, long-term relationships beyond the
pandemic.
EOIR’s data indicate that its caseload changed in several ways from
March through October 2020. Overall, pending cases continued to
increase during this time period consistent with a historical increase in
pending cases prior to the pandemic. In addition, the total number of
immigration judge decisions decreased, after increasing from January
2019 to February 2020, and decisions specifically issued in absentia also
decreased.64 Case receipts continued to decrease after March 2020,
following a decrease that started in August 2019. EOIR data also indicate
an increase in the number of cases that were adjourned and continued to
a later date, as a result of immigration court closures. Multiple factors can
affect the number of pending cases, continuances, immigration judge
decisions, and case receipts, including DHS’s immigration enforcement
priorities during the pandemic.
Pending caseload steadily increased. EOIR data indicate that total
pending cases increased from March through October 2020, following
several months of EOIR’s caseload remaining somewhat constant (see
fig. 6).65 The number of pending cases at both non-detained and hybrid
courts increased, while pending cases at detained courts decreased.
Though the overall number of pending cases increased during the
pandemic, pending cases had been increasing prior to March 2020. For
example, in 2017, we reported that EOIR’s open cases grew by 44
64Immigration judges make removal decisions in absentia when a respondent does not
show up to a scheduled hearing.
65Pending cases by month indicate the number of open cases at the end of the month. For
instance, the number of pending cases in September is the number of open cases on
September 30.
EOIR’s Caseload
Changed in Several
Ways during the
COVID-19 Pandemic
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GAO-21-104404 Immigration Courts
percent from fiscal year 2006 through fiscal year 2015.66 Additionally,
EOIR reported that the number of pending cases grew by 84 percent from
fiscal year 2014 through 2018.67
66GAO-17-438. In 2017, we made 11 recommendations to improve EOIR’s workforce
planning, hiring, and analysis of continuance data. As of February 2021, EOIR has taken
actions to address most of our recommendations, such as establishing and monitoring
comprehensive case completion goals. EOIR has plans to address another
recommendation by developing a strategic workforce plan.
67Executive Office for Immigration Review, FY2018 Statistics Yearbook (Falls Church, VA:
August 2019).
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Figure 6: Executive Office for Immigration Review’s (EOIR) Pending Caseload, by Court Type, from March 2019 through
October 2020
Notes: A detained court is a court where detained respondents comprised at least 95 percent of
cases completed in the last year. Similarly, a non-detained court is a court where non-detained
respondents comprised at least 95 percent of cases completed in the last year. Any court that does
not meet the thresholds for either the detained or non-detained court is a hybrid court, which has a
combination of both detained and non-detained respondents. Pending cases are the number of open
cases at the end of each month. We requested data in two parts to help ensure up-to-date data. Data
from October 2017 through December 2019 are as of October 2020. Data from January 2020 through
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GAO-21-104404 Immigration Courts
October 2020 are as of January 2021. The President declared COVID-19 a national emergency on
March 13, 2020.
The decline in pending cases at detained courts could be attributable to
multiple factors. For instance, ICE’s population of detained individuals
decreased during this time period due to changes in immigration
enforcement operations and priorities during the pandemic, according to
EOIR. Additionally, OPLA officials told us that their office engaged with
EOIR and ICE Enforcement and Removal Operations—the ICE division
that oversees and manages detention—to identify and utilize video
teleconference units in detention centers and assign non-detained
immigration judges to preside over cases virtually. Respondents attended
their court hearings in these video teleconference units, and the assigned
immigration judges presided over these cases virtually. This process
allowed EOIR to hold more detained hearings, according to officials. This
also ultimately helped to reduce the detained population during the
pandemic.
Immigration judge decisions and decisions made in absentia
decreased. EOIR data indicate that total immigration judge decisions
sharply decreased in the spring of 2020 and began to increase again in
the summer of 2020 (see fig. 7).68 Immigration decisions at non-detained
and hybrid immigration courts followed a similar trend as total immigration
judge decisions. That is, EOIR data indicate sharp decreases in decisions
at the beginning of the pandemic and slight increases during and after the
summer of 2020 as EOIR began to reopen these courts. Immigration
judge decisions at detained courts steadily decreased during this time.
Although detained courts remained open during this time period, EOIR
modified operations at these courts for health and safety reasons, and
ICE had fewer respondents in detention due to various factors, including
immigration enforcement priorities during this time period, as previously
discussed.
68An immigration judge decision indicates an immigration judge’s decision on the outcome
of a case. For instance, an immigration judge can decide that a case should end with an
order of removal, grant of asylum (or other relief) to an applicant, or another decision.
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Figure 7: Executive Office for Immigration Review’s (EOIR) Immigration Judge Decisions, by Court Type, from March 2019
through October 2020
Notes: A detained court is a court where detained respondents comprised at least 95 percent of
cases completed in the last year. Similarly, a non-detained court is a court where non-detained
respondents comprised at least 95 percent of cases completed in the last year. Any court that does
not meet the thresholds for either the detained or non-detained court is a hybrid court, which has a
combination of both detained and non-detained respondents. Immigration judge decisions occur
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GAO-21-104404 Immigration Courts
when an immigration judge rules on the outcome of a case. We requested data in two parts to ensure
up-to-date data. Data from October 2017 through December 2019 are as of October 2020. Data from
January 2020 through October 2020 are as of January 2021. The President declared COVID-19 a
national emergency on March 13, 2020.
More specifically, EOIR data indicate that immigration judge decisions
issued in absentia decreased sharply in the spring of 2020 and increased
slightly in the fall of 2020 (see fig. 8). Total immigration judge decisions
made in absentia for non-detained and hybrid courts decreased sharply at
the beginning of the pandemic, and immigration judge decisions made in
absentia for detained courts remained low throughout the time period
from March 2019 through October 2020.
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GAO-21-104404 Immigration Courts
Figure 8: Executive Office for Immigration Review’s (EOIR) In Absentia Immigration Court Decisions, by Court Type, from
March 2019 through October 2020
Notes: A detained court is a court where detained respondents comprised at least 95 percent of
cases completed in the last year. Similarly, a non-detained court is a court where non-detained
respondents comprised at least 95 percent of cases completed in the last year. Any court that does
not meet the thresholds for either the detained or non-detained court is a hybrid court, which has a
combination of both detained and non-detained respondents. In absentia immigration judge decisions
occur when a respondent does not appear for a scheduled court hearing and the immigration judge
rules on the outcome of a case. We requested data in two parts to ensure up to date data. Data from
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GAO-21-104404 Immigration Courts
October 2017 through December 2019 are as of October 2020. Data from January 2020 through
October 2020 are as of January 2021. The President declared COVID-19 a national emergency on
March 13, 2020.
Cases at detained courts typically do not have in absentia removal
orders, according to EOIR officials. The detention facility staff generally
ensures that respondents appear for their scheduled hearings. EOIR
officials we spoke with from courts with non-detained dockets said that,
based on their observations, the proportion of in absentia removal orders
during the pandemic is about the same as prior to the pandemic.
However, EOIR officials from two courts said that it is rare for judges to
issue in absentia removal orders during or subsequent to an individual
merit hearing, and judges issue most in absentia removal orders during
the master calendar hearing.69 At the time of our work, only one court in
our sample had resumed a limited number of non-detained master
calendar hearings.
Case receipts decreased. EOIR data indicate that total case receipts
continued to decrease during the COVID-19 pandemic, following a sharp
decrease in case receipts prior to COVID-19 (see fig. 9).70 Total receipts
increased from July to September 2020 and then began to decrease
again. Case receipts at hybrid courts followed a similar trend during this
time period, decreasing early in the pandemic, increasing from July to
September, and decreasing again though October 2020. Case receipts at
non-detained courts decreased early in the pandemic and then fluctuated
around 4,000 new case receipts per month. Case receipts at detained
courts decreased early in the pandemic and then remained low.
69We spoke with officials from three courts with non-detained dockets as part of our audit
work. One of those three courts had resumed a limited number of master calendar
hearings at the time when we spoke with officials at that court. The other two courts had
not resumed master calendar hearings yet, only individual merit hearings.
70Case receipts include initial case receipts, or new case receipts that DHS referred to
EOIR, and other case receipts. Other case receipts can include any receipts that are not
new, such as cases remanded to immigration courts by the Board of Immigration Appeals.
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Figure 9: Executive Office for Immigration Review’s (EOIR) Case Receipts, by Court Type, from March 2019 through October
2020
Notes: A detained court is a court where detained respondents comprised at least 95 percent of
cases completed in the last year. Similarly, a non-detained court is a court where non-detained
respondents comprised at least 95 percent of cases completed in the last year. Any court that does
not meet the thresholds for either the detained or non-detained court is a hybrid court, which has a
combination of both detained and non-detained respondents. Case receipts include initial case
receipts, or new case receipts that the Department of Homeland Security referred to EOIR, and other
case receipts. Other case receipts can include any receipts that are not new, such as cases
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remanded to immigration courts by the Board of Immigration Appeals. We requested data in two parts
to ensure up-to-date data. Data from October 2017 through December 2019 are as of October 2020.
Data from January 2020 through October 2020 are as of January 2021. The President declared
COVID-19 a national emergency on March 13, 2020.
There were fewer referrals to the immigration courts during the pandemic.
In particular, ICE’s average daily population of detained individuals
decreased during the pandemic, from about 45,000 detainees in January
2020 to nearly 21,000 detainees in October 2020, according to ICE data.
As a result, EOIR’s detained cases simultaneously decreased. ICE
attributed this decrease in average daily population to a simultaneous
decrease in immigration enforcement and new detainees in detention
facilities. ICE also reduced the capacity of detention facilities to allow for
social distancing. EOIR transferred any respondents whom ICE released
from detention to the non-detained docket, according to officials.
Total hearing adjournments, including continuances, decreased, but
those related to court closures increased. EOIR data indicate that total
hearing adjournments, to include continuances, decreased from March to
August 2020 and then began to slightly increase from August through
October 2020 (see fig. 10).71 Adjournments at hybrid and non-detained
courts followed a similar trend, decreasing from March to August 2020,
and then increasing through October 2020. Adjournments at detained
courts decreased from March to August 2020 and then increased slightly
from August through October 2020.
71EOIR assigns an adjournment code for actions taken on a particular hearing, to include
a continuance, a completion at or prior to the hearing, or a reset, among other actions. A
continuance is a temporary adjournment or postponement of a case until a later date, for
good cause. See 8 C.F.R. §§ 1003.29 (Continuances), 1240.6 (Postponement and
adjournment of hearing). Continuances occur over the normal course of a case but also
occur when an event delays the final decision of a case.
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Figure 10: Executive Office for Immigration Review’s (EOIR) Adjournments, by Court Type, from March 2019 through October
2020
Notes: A detained court is a court where detained respondents comprised at least 95 percent of
cases completed in the last year. Similarly, a non-detained court is a court where non-detained
respondents comprised at least 95 percent of cases completed in the last year. Any court that does
not meet the thresholds for either the detained or non-detained court is a hybrid court, which has a
combination of both detained and non-detained respondents. Hearing adjournments are entered on a
number of bases, including continuances under various circumstances, case completions at or prior
to hearing, and instances in which the date of a hearing was entered incorrectly and could not be
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rectified, among other reasons. A continuance occurs when an immigration judge temporarily
adjourns or postpones the case until a later date, for good cause. See 8 C.F.R. §§ 1003.29
(Continuances), 1240.6 (Postponement and adjournment of hearing). Continuances occur over the
normal course of a case but also occur when an event delays the final decision of a case. We
requested data in two parts to ensure up-to-date data. Data from October 2017 through December
2019 are as of October 2020. Data from January 2020 through October 2020 are as of January 2021.
The President declared COVID-19 a national emergency on March 13, 2020.
Specifically regarding continuances, immigration judges adjourn cases
and grant continuances for a variety of reasons anytime the case is
unresolved at one hearing and the immigration court has to schedule a
future hearing. For instance, an immigration judge issues a continuance
when a master calendar hearing progresses to a merits hearing.
Continuances can affect respondents differently, depending on where
respondents are in their immigration proceedings. ACIJs in three
locations told us that cases that EOIR continued during the COVID-19
pandemic typically go to the end of the queue, and rescheduling those
cases depends on the size of the immigration court’s backlog. Based on
the courts included in our analysis, a case could be rescheduled from 1 to
nearly 4 years in the future.72 For example, respondents whose initial
hearings EOIR continued during the pandemic may not begin immigration
proceedings for several years. Similarly, respondents who have had an
initial hearing and may require further proceedings, or are awaiting a final
decision from an immigration judge, may not have their cases completed
for several years if they were continued by EOIR during the COVID-19
pandemic prior to a final hearing or issuance of the final decision.
EOIR specifically tracks continuances resulting from various
circumstances, including those due to court closures. Continuances
resulting from court closures can also include reasons other than COVID-
19, including civil unrest, building maintenance issues, and disruptive
weather. EOIR data indicate that continuances specifically due to court
closures increased sharply at the beginning of the pandemic, from close
to 550 in February 2020 to about 110,000 in April 2020. From March
72Immigration courts might schedule certain categories of cases earlier, according to
officials. For instance, immigration judges that preside over hearings with juvenile
respondents said that they have to review cases and ensure that they will hear those
cases before the juvenile ages out of juvenile status at age 18.
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through October 2020, EOIR continued close to 600,000 hearings due to
court closures (see fig. 11).73
73EOIR officials said that a large increase in continuances due to court closures is
attributable to COVID-19 in the spring of 2020, although they said that some court
closures in summer of 2020 are also attributable to protests in certain cities across the
country.
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Figure 11: Executive Office for Immigration Review’s (EOIR) Continuances Indicating Court Closures, by Court Type, from
March 2019 through October 2020
Notes: A detained court is a court where detained respondents comprised at least 95 percent of
cases completed in the last year. Similarly, a non-detained court is a court where non-detained
respondents comprised at least 95 percent of cases completed in the last year. Any court that does
not meet the thresholds for either the detained or non-detained court is a hybrid court, which has a
combination of both detained and non-detained respondents. Hearing adjournments are entered on a
number of bases, including continuances indicating court closures (or other circumstances), case
completions at or prior to hearing, and instances in which the date of a hearing was entered
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incorrectly and could not be rectified, among other reasons. A continuance occurs when an
immigration judge temporarily adjourns or postpones the case until a later date, for good cause. See
8 C.F.R. §§ 1003.29 (Continuances), 1240.6 (Postponement and adjournment of hearing).
Continuances occur over the normal course of a case but also occur when an event delays the final
decision of a case. We requested data in two parts to ensure up-to-date data. Data from October
2017 through December 2019 are as of October 2020. Data from January 2020 through October
2020 are as of January 2021. The President declared COVID-19 a national emergency on March 13,
2020.
The COVID-19 pandemic poses a particular challenge to federal
agencies, such as EOIR, that have continued certain operations during
the pandemic. To carry out its essential mission of adjudicating
immigration cases, EOIR established health and safety measures at the
courts such as social distancing measures. However, EOIR lacks
documented mask-wearing guidance specifically tailored to the courtroom
setting. Issuing guidance on mask-wearing tailored to the immigration
courtroom would help ensure that court staff and visitors clearly
understand mask-wearing requirements, particularly as public health
guidance evolves and, as a result, possibly lower the risk of COVID-19
transmission in immigration court hearings. In addition, EOIR developed
processes to respond to COVID-19 exposures in immigration courts.
However, EOIR did not maintain updated guidance that reflected current
processes and criteria used when responding to COVID-19 exposures.
By updating its guidance, EOIR can better preserve the institutional
knowledge of the agency’s processes, for example, when senior staff
leave the agency. Further, disseminating this guidance to all court staff
could help ensure that staff are aware of the processes for responding to
COVID-19 exposures and feel more assured of their own health and
safety. Additionally, EOIR ceased holding regular meetings with
stakeholders in 2017, and during the pandemic, stakeholders told us they
lacked avenues to engage with EOIR on key matters that affected their
health and safety. EOIR held its first stakeholder meeting in May 2021
after a gap of about 4 years. However, it is too soon to determine EOIR’s
plans for future stakeholder engagement, Taking additional steps to
regularly engage with court stakeholders would help EOIR maintain
positive relationships and help address stakeholders’ court operations
and health and safety concerns.
We are making the following four recommendations to the Executive
Office for Immigration Review:
The EOIR Director should issue guidance for EOIR staff and visitors
on mask-wearing requirements that is tailored to immigration
courtrooms. (Recommendation 1)
Conclusions
Recommendations for
Executive Action
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The EOIR Director should update EOIR’s internal guidance for
responding to COVID-19 exposures in immigration courts to reflect
current processes and criteria used in decision-making.
(Recommendation 2)
The EOIR Director should distribute the updated internal guidance on
responding to COVID-19 exposures in immigration courts to all staff at
EOIR headquarters and immigration courts. (Recommendation 3)
The EOIR Director should take additional steps to ensure that the
agency regularly engages with court stakeholders about matters
affecting court operations and their health and safety.
(Recommendation 4)
We provided a draft of this report to DOJ and DHS for review and
comment. In an email, an Associate General Counsel at EOIR stated that
the agency concurred with the recommendations. EOIR provided
technical comments, which we incorporated as appropriate. DHS also
provided technical comments, which we incorporated as appropriate.
We are sending copies of this report to the appropriate congressional
committees, the Attorney General, and the Secretary of Homeland
Security. In addition, the report is available at no charge on the GAO
website at https://www.gao.gov.
If you or your staff have any questions about this report, please contact
Rebecca Gambler at (202) 512-8777 or gamblerr@gao.gov. Contact
points for our Offices of Congressional Relations and Public Affairs may
be found on the last page of this report. GAO staff who made major
contributions to this report are listed in appendix II.
Rebecca Gambler
Director, Homeland Security and Justice
Agency Comments
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List of Addressees
The Honorable Patrick Leahy
Chairman
The Honorable Richard Shelby
Vice Chairman
Committee on Appropriations
United States Senate
The Honorable Ron Wyden
Chairman
The Honorable Mike Crapo
Ranking Member
Committee on Finance
United States Senate
The Honorable Patty Murray
Chair
The Honorable Richard Burr
Ranking Member
Committee on Health, Education, Labor, and Pensions
United States Senate
The Honorable Gary C. Peters
Chairman
The Honorable Rob Portman
Ranking Member
Committee on Homeland Security and Governmental Affairs
United States Senate
The Honorable Richard J. Durbin
Chair
Committee on the Judiciary
United States Senate
The Honorable Rosa L. DeLauro
Chairwoman
The Honorable Kay Granger
Ranking Member
Committee on Appropriations
House of Representatives
GAO-21-104404 Immigration Courts
List of Addressees Continued
The Honorable Frank Pallone, Jr.
Chairman
The Honorable Cathy McMorris Rodgers
Republican Leader
Committee on Energy and Commerce
House of Representatives
The Honorable Bennie G. Thompson
Chairman
The Honorable John Katko
Ranking Member
Committee on Homeland Security
House of Representatives
The Honorable Carolyn B. Maloney
Chairwoman
The Honorable James Comer
Ranking Member
Committee on Oversight and Reform
House of Representatives
The Honorable Richard E. Neal
Chairman
The Honorable Kevin Brady
Republican Leader
Committee on Ways and Means
House of Representatives
The Honorable Richard Blumenthal
United States Senate
The Honorable Cory A. Booker
United States Senate
The Honorable Christopher A. Coons
United States Senate
The Honorable Dianne Feinstein
United States Senate
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List of Addressees Continued
The Honorable Mazie K. Hirono
United States Senate
The Honorable Amy Klobuchar
United States Senate
The Honorable Sheldon Whitehouse
United States Senate
Appendix I: Respondents’ Access to Legal
Counsel and Resources during the
Coronavirus Disease 2019
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This appendix provides additional information on aspects of
respondents’—foreign nationals charged as removable and placed in
immigration court proceedings due to alleged violation of U.S. immigration
laws—access to legal counsel and other legal resources during the
Coronavirus Disease 2019 (COVID-19) pandemic. We obtained
information through interviews with headquarters officials from the
Executive Office for Immigration Review (EOIR), and from five
organizations that subcontract with the Vera Institute of Justice (Vera),
which administers EOIR’s Legal Orientation Program (LOP) and LOP for
Custodians of Unaccompanied Alien Children (LOPC).1 We also analyzed
documentation from EOIR on the LOP and LOPC, including summary
reports from Vera and its subcontractors containing data on the number
of program participants and legal access services provided. We assessed
the reliability of this data by reviewing related documentation on the LOP
and LOPC program, interviewing knowledgeable officials, and testing the
data for obvious errors. We determined the data were sufficiently reliable
for the purposes of describing the LOP services provided and the LOPC
participants and services provided during the COVID-19 pandemic. We
also met with detention facility operators from six detention facilities and
officials from the Department of Homeland Security’s (DHS) U.S.
Immigration and Customs Enforcement (ICE) field offices responsible for
overseeing these facilities.2 Lastly, we interviewed private bar attorneys
from three organizations who represent detainees in some of the
immigration court proceedings included in our analysis of objectives one
through three, as described earlier in the body of the report.
1We selected three LOP and two LOPC subcontractors to represent diverse geographic
locations, co-located in the same city as the immigration courts included in our analysis,
and, for LOP providers, ensure there is at least a moderate detainee population in the
facilities served by the provider, indicated by an average daily population of detainees that
is at least 20 percent of the facility’s capacity.
2We leveraged audit work included in another GAO report, GAO, Immigration Detention:
ICE Efforts to Address COVID-19 in Detention Facilities, GAO-21-414 (Washington, D.C.:
June 30, 2021), to help us collect information from detention facility operators and ICE
officials overseeing these facilities. We selected these six detention facilities to represent
variation among several factors, including geographic location, facility type, average
detainee populations, and the number of COVID-19 cases identified at the facility. See
GAO-21-414 for additional information on the criteria used to select these detention
facilities. ICE is responsible for providing safe, secure, and humane confinement for
detained foreign nationals while they wait for resolution of their immigration cases or
removal from the U.S. ICE owns and operates some of its detention facilities. Others are
owned and operated by private companies through contracts with ICE, or owned by state
or local governments or private entities and operated under agreements with ICE.
Appendix I: Respondents’ Access to Legal
Counsel and Resources during the
Coronavirus Disease 2019
Appendix I: Respondents’ Access to Legal
Counsel and Resources during the
Coronavirus Disease 2019
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EOIR established the LOP and the LOPC to provide legal information to
targeted populations regarding immigration court processes and possible
forms of relief from removal.3 LOP, which EOIR established in 2003,
provides legal information to individuals in detention who are awaiting
their removal proceedings regarding their rights and the immigration
process to assist them in making informed decisions earlier in immigration
court proceedings. LOPC, which EOIR established in 2010, provides legal
orientation presentations to custodians of unaccompanied children
released from custody from the Office of Refugee Resettlement, to help
ensure the child’s appearance at all immigration court hearings.4
Since 2005, EOIR has contracted with Vera to administer LOP and
LOPC. Vera subcontracts with nonprofit legal service organizations
(providers) across the country to provide LOP and LOPC services, such
as group and individual legal orientations, self-help workshops, and pro
bono legal referrals. As of April 2021, providers offered LOP services at
43 detention facilities across the U.S. and LOPC services in 15 cities.
LOPC also operates a national call center that provides orientations for
custodians regardless of the respondent’s location. A LOP subcontractor
also operates the LOP Information Line which provides limited-scope
services via telephone to individuals in immigration detention facilities
across the U.S. and serves to supplement in-person LOP services.5
3EOIR oversees other programs aimed at increasing respondents’ access to information
and raising the level of representation, such as the Recognition and Accreditation
Program, which aims to increase the availability of competent immigration legal
representation for low-income and indigent persons. For the purposes of this report, we
focused on EOIR’s LOP and LOPC.
4ICE must transfer unaccompanied children—minors under 18 years of age who lack
lawful immigration status and do not have a parent or legal guardian present or available
in the U.S. to provide care and physical custody—to the Department of Health and Human
Services’ Office of Refugee Resettlement’s custody within 72 hours of determining that
they are unaccompanied children. See 8 U.S.C. § 1232(b)(3); 6 U.S.C. § 279(g).The
Office of Refugee Resettlement is also responsible for identifying qualified sponsors in the
U.S. who will take custody of the children once they leave Office of Refugee Resettlement
shelters and are awaiting immigration proceedings.
5Individuals may access the LOP Information Line through DHS’s pro bono phone
platform in all ICE adult detention facilities. Detained individuals can make free calls to the
information line at a maximum length of 15-minutes per call. The LOP Information Line
began taking calls in September 2019. ICE notified all field offices of the availability of the
information line and asked that detention facilities post a flyer (in English and translated
into Spanish) informing detainees of the information line in May 2020 and again in May
2021 (translated into nine languages).
EOIR’s Legal Orientation
Programs during the
COVID-19 Pandemic
Appendix I: Respondents’ Access to Legal
Counsel and Resources during the
Coronavirus Disease 2019
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See table 2 for a summary of the core services typically provided through
the LOP and LOPC.
Table 2: Core Legal Orientation Services Provided through the Executive Office for Immigration Review (EOIR)
Legal Orientation Program core
services
Description
Group or individual orientations
Provide an overview of immigration removal proceedings, the range of rights available to
detained individuals, and forms of relief from removal that may or may not be available to
them.
Self-help workshops
Assist small groups of individuals in understanding the procedures to be followed in pursuing
potential forms of relief, voluntarily departing the country, or providing guidance on other
topics, such as how to prepare for a bond hearing.
Pro bono referrals
Refer detained individuals to pro bono legal services, where available.
Legal Orientation Program for
Custodians of Unaccompanied
Alien Children core services
Description
Group or individual orientations
Provide an overview of the immigration court removal process to custodians of
unaccompanied children, responsibilities of custodians in the immigration adjudication
process, including ensuring that children appear for immigration hearings, and what forms of
relief may be available to them.
Follow-up sessions
Provide information to a custodian of an unaccompanied child following an initial orientation.
Self-help workshops
Inform and assist small groups of custodians and unaccompanied children in understanding
the relevant laws and procedures to be followed on a topic of interest, such as pursing
particular forms of relief.
Pro bono Referrals
Refer custodians of unaccompanied children to pro bono legal services, where available.
Source: EOIR documents. | GAO-21-104404
EOIR officials said that near the beginning of the pandemic,
approximately March 2020, most LOP and LOPC providers decided to
switch from in-person services to offering virtual and remote services,
with a few exceptions where providers offered ad hoc, in-person services.
EOIR ratified an agreement with Vera on March 30, 2020, that set forth
the conditions for Vera and the providers to perform the LOP and LOPC
services at an alternate work site on a regular basis (i.e., telework) during
the COVID-19 pandemic.6 Additionally, under this telework agreement,
EOIR increased the frequency that providers are to report data on
services to Vera from monthly reports, prior to the pandemic, to weekly
reports, according to EOIR officials and providers we interviewed.
6The 2017 blank purchase agreement between EOIR and Vera specifies that on-site
presenters should provide LOP and LOPC services; however, subcontractors may
telework during a pandemic influenza or other national emergency. According to EOIR,
DOJ extended the blanket purchase agreement with Vera by 3 months on May 27, 2021.
Appendix I: Respondents’ Access to Legal
Counsel and Resources during the
Coronavirus Disease 2019
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Providers developed their own remote services plan under the telework
agreement for COVID-19, with some assistance from Vera. According to
some LOP and LOPC providers we spoke with, Vera discussed options
for virtual or remote services with the providers and gave examples of
work models that could be implemented. Staff from another provider said
they developed their remote service model themselves, with minimal
guidance from Vera or EOIR, and Vera reviewed and approved the
model. The following are examples of virtual or remote services LOP and
LOPC providers offered during the pandemic.
•
Examples of LOP services during the pandemic. The three LOP
providers we spoke with noted various steps they took to transition to
virtual or remote LOP services during the pandemic. For example,
regarding group orientations, one provider recorded a video, in both
English and Spanish, of a group orientation that the detention facility
operator is to play once per week for the detainees. Two other
providers that also prerecorded videos for group orientations said that
the detention facility operators show the video to detainees as part of
the intake process. In addition, LOP providers told us how they
established different mechanisms to meet with detainees on an
individual basis. Two providers we spoke with established a process
with the detention facility whereby facility staff schedule phone or
video call appointments for the detainee to call the provider. Another
provider established a hotline that detainees could call for individual
orientations and follow-up questions 5 days a week. Detainees can
call the hotline using DHS’s pro bono platform that provides free
phone access for detainees to call entities that provide services such
as legal support, including LOP providers.7 LOP providers stated they
may also mail hard-copy documents to detainees, such as legal
materials, or materials that provide the same information typically
addressed in a group orientation. One provider said that, if needed,
detention facility staff, such as the law librarian, may scan in and
share detainees’ documents and forms to the provider to review.
•
Examples of LOPC services during the pandemic. The two LOPC
providers we contacted described several steps they took during the
pandemic to continue certain LOPC services. For example, one
provider we spoke with switched to provide the majority of services
over telephone or video phone call at the beginning of the pandemic,
7In April 2020, DHS provided approximately 520 free phone minutes to approximately half
of the detainees at ICE detention facilities to mitigate the effect of ICE’s restriction against
family and friend in-person visitation during the pandemic. ICE officials told us in May
2021 that ICE continues to offer additional telephone minutes to these detainees.
Appendix I: Respondents’ Access to Legal
Counsel and Resources during the
Coronavirus Disease 2019
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including group and individual orientations and workshops on applying
for asylum and other workshops for unrepresented respondents. To
encourage greater participation, the provider offers these sessions
more frequently, as well as contacting custodians directly to
encourage participation. The provider also mails legal forms and other
paperwork to the custodians with instructions to return forms by mail
rather than in person. The provider said that it plans to resume in-
person orientations at one site starting in April 2021, based on the
request of the LOPC participants.
EOIR officials said that the LOP and LOPC providers faced some
technological challenges in providing virtual or remote services during the
COVID-19 pandemic. As described above, most providers decided to
provide virtual services during the pandemic, and the provider depends
upon the technology infrastructure at each detention facility to provide
such services. This infrastructure includes private telephone lines,
computers or kiosks, or tablets. While some detention facilities have
technology for detainees to contact providers and receive virtual services
during the COVID-19 pandemic, some facilities faced challenges,
according to EOIR officials. For example, one provider stated that the
detention facility could not always provide private phone lines for the
detainees to call the provider for LOP services, and other detainees may
have been able to overhear those phone conversations.
Providers also noted that they experienced logistical challenges to
providing virtual or remote services. For example, one provider described
a situation where, unlike the provider’s other two sites, the provider was
unable to set up scheduled appointment times for detainees at two
facilities to contact the provider’s staff. Further, the detainees experienced
challenges calling the provider’s hotline through the pro bono platform to
place a free call, such as navigating the directions to place the free call.
Instead, the detainees used their own personal phone accounts to call the
provider, or detainees called the provider on a collect call. To reach
specific detainees, the provider must leave a message for a detainee.
Prior to about March 2021, the provider stated that the detention facility
staff may not have been relaying to the detainee when they should return
the provider’s call, though the provider noted that the facility staff have
since started providing the information. According to the provider, during
the pandemic prior to April 2021, the number of detainees receiving LOP
Appendix I: Respondents’ Access to Legal
Counsel and Resources during the
Coronavirus Disease 2019
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services at these two facilities dropped sharply because of these
challenges.8
The same LOP provider also described concerns about reaching
detainees who do not speak either Spanish or English, and said that the
number of individuals participating in a LOP service who do not speak
either Spanish or English has dropped sharply during the pandemic. Staff
from the provider also stated being unable to reach these individuals
through written materials because the materials are only translated into
Spanish and English.9 However, ICE officials noted that, working with
EOIR, the agency obtained LOP materials in over 30 languages to help
provide remote LOP services, including audio files in indigenous
languages from Central America. In June 2020, ICE informed field offices
that these LOP materials were available on an ICE intranet and could be
uploaded to law library computers in ICE detention facilities, where
operationally feasible, for detainees to access. Further, detainees may
request a referral to a LOP provider through ICE’s toll-free phone line, the
Detention Reporting and Information Line. The phone line is available to
detainees on the facility’s pro bono platform, and operators have access
to interpreters and can provide services in languages other than Spanish
and English, according to ICE.
Although providers noted these technology and logistical challenges, two
LOP providers described successes stemming from their switch to virtual
or remote services during the COVID-19 pandemic. One provider plans to
continue offering the hotline after COVID-19 because it provides another
avenue for detainees to receive assistance and services from the
provider. Another provider said that the detention facility staff in charge of
attorney visits has been responsive to the provider, and there has been a
clear line of communication throughout the pandemic. Further, the
provider and the staff have worked together to successfully troubleshoot
challenges providing virtual services during the pandemic, according to
the provider.
8According to ICE, there was also an overall decrease in the number of noncitizens
housed in detention facilities across the nation in fiscal year 2020 through the third quarter
of fiscal year 2021 due to the pandemic.
9According to ICE, during the pandemic, about 80 percent of the detained population in
fiscal year 2020 through the second quarter of fiscal year 2021 was from predominantly
Spanish-speaking countries.
Appendix I: Respondents’ Access to Legal
Counsel and Resources during the
Coronavirus Disease 2019
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GAO-21-104404 Immigration Courts
According to data Vera reported to EOIR, the number of core LOP
services—group orientations, individual orientations, workshops, and pro
bono referrals—providers offered to detainees decreased during the
pandemic. The number of detainees receiving these services
(participants) similarly decreased. Vera, in an August 2020 report to EOIR
on LOP, and one LOP provider we spoke with attributed the decrease in
both number of services provided and participants to several factors
stemming from the pandemic. For example, the average daily population
of detainees in ICE detention facilities generally decreased during the
pandemic. In some detention facilities, ICE transferred or released
detainees due to COVID-19 related concerns, and in others, the number
of new individuals arriving at the detention facility decreased, as we
discussed earlier in this report. In addition, according to ICE’s website,
ICE adjusted its enforcement priorities as of March 2020 to focus
enforcement on public safety risks and individuals subject to mandatory
detention based on criminal grounds. For all others, ICE’s policy indicated
that it would exercise discretion to delay immigration enforcement actions
until after the crisis or use alternatives to detention, as appropriate.
In April 2020, EOIR asked Vera and providers to track and provide data
on additional services they offered as a result of the switch to virtual
services during the pandemic, such as the number of written material
packets mailed to detainees and general communication interactions with
detainees. See figure 12 for the number of core LOP services provided to
detainees for fiscal year 2019 through the first quarter of fiscal year 2021.
EOIR Data on LOP Services
Appendix I: Respondents’ Access to Legal
Counsel and Resources during the
Coronavirus Disease 2019
Page 64
GAO-21-104404 Immigration Courts
Figure 12: Total Core Services Provided by the Executive Office for Immigration
Review’s (EOIR) Legal Orientation Program, October 2018 through December 2020
Note: Core services include group orientations, individual orientations, workshops for unrepresented
respondents, and pro bono placements and referrals, and orientations provided by the LOP
information line.
For the LOPC program, the number of custodians participating in core
program services—group orientations, individual orientations, workshops,
follow-ups, legal screenings, pro bono referrals, and call center
orientations—decreased during the pandemic, according to data Vera
reported to EOIR. Consistent with the LOP, EOIR asked Vera and LOPC
providers to track and provide data on additional services that providers
offered as a result of the switch to virtual services during the COVID-19
pandemic. This includes the number of prepared informational packets
mailed to custodians and general communications, including inquiries
about services. See figure 13 for total custodians participating in EOIR
LOPC core services, according to data Vera reported to EOIR.
EOIR Data on LOPC Services
and Participants
Appendix I: Respondents’ Access to Legal
Counsel and Resources during the
Coronavirus Disease 2019
Page 65
GAO-21-104404 Immigration Courts
Figure 13: Custodians Participating in Core Services Provided by the Executive
Office for Immigration Review’s (EOIR) Legal Orientation Program for Custodians of
Unaccompanied Alien Children, October 2019 through December 2020
Note: These are custodians of unaccompanied children under 18 years old with no lawful immigration
status and no parent or legal guardian present or available in the U.S. to provide care and physical
custody. 6 U.S.C. § 279(g)(2). Core services include group orientations, individual orientations,
follow-up sessions, workshops for unrepresented respondents, legal screenings, pro bono referrals,
and orientations provided by the LOPC call center. Vera revised the format and data reported in its
quarterly reports to EOIR for the third quarter of fiscal year 2020, including the method used to count
the number of custodians receiving LOPC services.
Further, individual orientations reflected a larger proportion of the total
services provided during the pandemic relative to other services. For
example, staff from one LOPC provider said that due to COVID-19, they
provided more individual orientations and that each group orientation,
generally, has fewer custodians attending. Additionally, during the
pandemic, the LOPC provider reached out to custodians directly more
frequently than prior to the pandemic to encourage attendance at an
orientation session. See figure 14 for the count of group, individual
orientations, and follow-up services, according to data Vera reported to
EOIR.
Appendix I: Respondents’ Access to Legal
Counsel and Resources during the
Coronavirus Disease 2019
Page 66
GAO-21-104404 Immigration Courts
Figure 14: Orientations and Follow-Up Sessions Provided to Individuals by the
Executive Office for Immigration Review’s (EOIR) Legal Orientation Program for
Custodians of Unaccompanied Alien Children, October 2018 through December
2020
Note: Unaccompanied children are under 18 years old with no lawful immigration status and no
parent or legal guardian present or available in the U.S. to provide care and physical custody. 6
U.S.C. § 279(g)(2). At group and individual orientations, custodians receive a general overview of the
immigration court removal proceedings and forms of relief from removal. Follow-up services include
additional orientations and self-help workshops.
Appendix I: Respondents’ Access to Legal
Counsel and Resources during the
Coronavirus Disease 2019
Page 67
GAO-21-104404 Immigration Courts
ICE officials, detention facility operators, and private bar attorneys offered
additional perspectives on detainee access to legal counsel and other
resources during the pandemic. ICE officials and detention facility
operators noted adjustments made to the process detainees used to
access legal counsel and other legal resources during the COVID-19
pandemic. In March 2020, ICE temporarily suspended social visitation
(i.e., visits other than those with attorneys) to all ICE-dedicated detention
facilities and, as of May 2021, still suspended social visitations. Beginning
in April 2020, ICE provided detainees with 520 free minutes for domestic
and international phone calls to over half of the detainee population,
according to ICE officials, to help mitigate the impact of curtailing
personal visits on detainees. As of May 2021, ICE still offered the
additional 520 free minutes for telephone calls.10 Additionally, as was the
case prior to the pandemic, all ICE detainees are able to make free calls
to legal service providers on EOIR’s list of pro bono legal service
providers, consular officials, and other government agencies and non-
governmental organizations, including the LOP Information Line,
described earlier in this appendix.11 ICE also began a Virtual Attorney
Visitation program, which provides videoconference options and private
booths for detainees to meet with legal representatives. According to ICE
officials, ICE plans to implement the Virtual Attorney Visitation program at
14 detention facilities by the end of fiscal year 2021.12
ICE officials and detention facility operators we spoke with at five
detention facilities said that detainees have been able to contact their
10According to ICE’s website guidance on COVID-19, ICE provided an additional 520
minutes of free domestic or international phone calls per month to detainees at all ICE
detention facilities served by Talton Communications (serving approximately 57 percent of
the ICE population) starting on April 22, 2020. As of May 2021, ICE officials stated that
ICE continues to provide the additional 520 free minutes per month. Other detention
facilities, not served by Talton Communications, have provided varying amounts of free
minutes to detainees.
11EOIR maintains a list of pro bono legal service providers to inform individuals in
proceedings before immigration courts of available pro bono legal services. The list
contains information on nonprofit organizations and attorneys who have committed to
providing at least 50 hours per year of pro bono legal services before the immigration
court location where they appear on the list. The list also contains information on pro bono
referral services that refer individuals in immigration court proceedings to pro bono
counsel.
12In 2021, we reported that ICE had contracts or agreements in place with approximately
148 over-72-hour detention facilities in the U.S., as of the end of fiscal year 2019. GAO,
immigration Detention: Actions Needed to Improve Planning, Documentation, and
Oversight of Detention Facility Contracts, GAO-21-149 (Washington, D.C.: Jan. 13, 2021).
Additional Perspectives on
ICE Detainee Access to
Legal Counsel and Other
Resources during the
COVID-19 Pandemic
Appendix I: Respondents’ Access to Legal
Counsel and Resources during the
Coronavirus Disease 2019
Page 68
GAO-21-104404 Immigration Courts
legal representatives throughout the pandemic, either by phone call,
video call, or for in-person visitations.13 For example, two facility operators
said that they never suspended legal visitations and attorneys have been
able to meet in person with their clients throughout the pandemic. Three
facility operators said that they did not allow any visitors to the detention
centers, including legal representatives, for several months due to a
COVID-19 outbreak in each of the detention facilities. During that time,
detainees could speak with their attorneys by phone or video call,
according to the facility operators with whom we spoke.
Private bar attorneys we spoke with said they experienced challenges
contacting their clients who were in ICE detention during the pandemic.
As described earlier, detainees are generally unable to receive incoming
calls, and private bar attorneys leave messages for the detainee to call
them back. During the pandemic, this became more of a challenge,
according to attorneys, because they were uncertain when the detainee
would call them back and feared potentially missing the phone call.
Lastly, some attorneys decided to provide virtual and remote services
during the pandemic and chose not to visit detained clients in person.
Phone calls are, they said, the primary way to communicate with their
clients. Thus, missing a phone call from a client could mean that the
attorney and the respondent may not feel prepared for an upcoming
hearing.
ICE officials or facility operators from five detention facilities said that
detainees have been able to access the legal resources, such as the
facility’s law library or legal information databases (e.g., LexisNexis),
during the pandemic.14 According to ICE’s detention standards, detention
facilities are to provide detainees with access to comprehensive legal
materials, including access to a law library and legal reference
materials.15
Due to COVID-19, some detention facility staff we spoke with adjusted
aspects of how detainees accessed the law library. For example, ICE
13ICE officials from the sixth facility did not discuss detainees’ access to in-person legal
representatives during the COVID-19 pandemic.
14The sixth facility operator did not discuss access to legal resources and the facility’s law
library.
15Department of Homeland Security, U.S. Immigration and Customs Enforcement,
Performance-Based National Detention Standards 2011, PBNDS 2011 (Washington, D.C.:
revised December 2016).
Appendix I: Respondents’ Access to Legal
Counsel and Resources during the
Coronavirus Disease 2019
Page 69
GAO-21-104404 Immigration Courts
officials and the facility operator at one facility said that to promote social
distancing in the law library, they established a maximum occupancy limit
and time limits when using the library. ICE officials from another facility
said that the facility closed the law library during the pandemic because
the library is small, and it was impossible for detainees to socially
distance while in the library. Detainees, however, could still access a legal
information database from computers in their dormitory. Two facility
operators said that detainees quarantining due to COVID-19 could not
access the facility’s law library. According to ICE, the facility operator
provides a limited number of tablets or mobile technology units that
detainees quarantining together need to share among themselves to
access online legal resources.
Appendix II: GAO Contact and Staff
Acknowledgments
Page 70
GAO-21-104404 Immigration Courts
Rebecca Gambler at (202) 512-8777 or gamblerr@gao.gov
In addition to the contact named above, Kathryn Bernet (Assistant
Director), Winchee Lin (Analyst-in-Charge), Isabel Band, Alejandro Oliva,
Benjamin Crossley, Michele Fejfar, Grant Mallie, Jan Montgomery, Sasan
J. “Jon” Najmi, Kevin Reeves, and Paras Sharma made key contributions
to this report.
Appendix II: GAO Contact and Staff
Acknowledgments
GAO Contact
Staff
Acknowledgments
(104404)
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