Carl Nichols testifies before the Senate Judiciary Committee during his confirmation hearing to be U.S. district judge for the District of Columbia on Aug. 22, 2018. Credit: Diego M. Radzinschi /NLJ

A federal judge in Washington, D.C., ruled Tuesday that he did not have the authority to order immigration courts to temporarily shut down during the COVID-19 pandemic.

U.S. District Judge Carl Nichols, confirmed to the federal bench last year, found he did not have jurisdiction to rule on that matter, and the immigration lawyers and detained immigrants seeking a temporary restraining order against the Justice Department, which oversees the immigration courts, are unlikely to succeed on the merits of their case.

He pointed to the Immigration and Nationality Act, which states legal challenges tied to removal proceedings conducted in immigration courts can only be brought to courts of appeals.

Nichols wrote that "the increased risk of contracting COVID-19 constitutes a cognizable injury sufficient to satisfy Article III, and also that the risk of contracting COVID-19 will increase as a result of being forced to attend in-person hearings." But he found the detained immigrants named in the suit do not have "an imminent in-person hearing," and therefore lack standing.

"More generally, there is no evidence in the record that any of the individual plaintiffs has been forced to appear, or will be forced to appear, at an in-person hearing over his or her request for either a continuance or some way of attending remotely, such as by VTC or teleconference. In fact, the evidence is to the contrary. The individual plaintiffs have thus failed to establish that they are likely to suffer an imminent injury to their health that is traceable to EOIR's failure to take different action," Nichols wrote.

The judge also took issue with immigration lawyer groups who alleged that detained immigrants are being deprived of counsel due to policies implemented during the pandemic.

Nichols said the lawyers "fail to explain" how the policies have caused the immigrants "to be unable to retain an attorney—especially considering that they had been unable to find counsel even before the pandemic and considering that they were able to retain counsel for this suit."

He further said the immigration lawyers have failed to show that "immigration judges are regularly refusing to deny requests for continuances or requests for telephonic or VTC hearings."

"In fact, although plaintiffs have submitted a number of declarations from immigration lawyers (some of whom are members of one or more of the Organizational Plaintiffs), no declarant has described a situation in which an immigration judge held an in-person hearing over a detainee's request for a continuance or for the hearing to be conducted remotely, such as by teleconference or VTC," Nichols wrote.

Nichols also sided with the Justice Department's arguments that current policies on immigration court protocols during the pandemic are not final agency action, as court facilities are making individual decisions and policies, and therefore can't be challenged under the Administrative Procedure Act.

"Where, as here, the government has taken steps to craft policies to address the public health issues associated with COVID-19 while continuing to enforce the immigration laws, and where the court is certainly not well positioned to second-guess those health and safety determinations, the public interest does not point in favor of granting injunctive relief," Nichols wrote.

The order stemmed from a lawsuit filed by immigration lawyer groups and detained immigrants with in-person hearings scheduled in the coming weeks. Some of those hearings have been delayed to later dates.

Lawyers, joined by a team from Cleary Gottlieb Steen & Hamilton, filed a motion for a temporary restraining order last week, asking Nichols to halt all in-person proceedings at immigration courts while they determine new protocols on how to safely hold hearings during the pandemic.

However, Justice Department lawyers argued the matter was out of Nichols' jurisdiction as removal proceedings for immigrants typically don't go to federal court until the administrative options are played out.

Nichols, during arguments, was concerned about what options detained immigrants have if an immigration judge, which are Article I judges under the control of the Department of Justice, refused to delay an in-person hearing or hold it remotely.

Read the opinion:

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