COVID-19: Improvements Needed in Guidance and Stakeholder Engagement for Immigration Courts

GAO-21-104404 Published: Aug 31, 2021. Publicly Released: Aug 31, 2021.
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Fast Facts

The Department of Justice's Executive Office for Immigration Review operates courts nationwide where about 500 judges hold hearings to decide if foreign nationals may be removed from the U.S.

During the pandemic, the office temporarily suspended hearings for those not in detention and reduced in-person contacts. It delayed about 600,000 hearings due to court closures (Mar.-Oct. 2020).

Hearing participants, such as private attorneys, told us it was hard at times to engage with the office and to have it address their hearing scheduling and safety concerns during the pandemic.

We recommended engaging regularly with court stakeholders, and more.

Department of Justice Immigration Judge Decisions, by Court Type, from March 2019 through October 2020

Line graph showing the number of DOJ Immigration Judge Decisions, 2019-2020

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Highlights

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

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.

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.

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Recommendations

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.

Recommendations for Executive Action

Agency Affected Recommendation Status
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)
Closed – Implemented
In August 2021, we reported that 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. Senior EOIR officials stated that EOIR expected all those present in a courtroom to wear masks for the duration of a hearing. However, we found that 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. As a result, we recommended that EOIR issue guidance for staff and visitors on mask-wearing requirements that is tailored to immigration courtrooms. In response, EOIR developed a "Frequently Asked Questions" document concerning health and safety requirements for staff and visitors to immigration courts, including guidance on mask-wearing requirements in courtrooms. The guidance is available on EOIR's public-facing website. EOIR first published the guidance in late October 2021, and updated it as of May 2022. EOIR officials stated they intend to publish further updates as new developments in the COVID-19 pandemic arise. Issuing tailored guidance should help EOIR better ensure that court staff and visitors understand expectations during hearings, particularly as public health guidance evolves.
Executive Office for Immigration Review 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)
Closed – Implemented
In August 2021, we reported that the Department of Justice's (DOJ) Executive Office for Immigration Review (EOIR) developed internal guidance on its processes for responding to COVID-19 exposures at immigration courts; however, we found that the guidance was out of date. In April 2020, EOIR headquarters developed a document outlining the process EOIR headquarters officials were to follow, and the criteria officials were to use, to make decisions about whether and how to respond to reported COVID-19 exposures in immigration courts. However, the guidance used an outdated definition of a close contact for criteria as of May 2021 and did not reflect several updates to EOIR's close contact definition throughout the pandemic. Further, we found 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 review the previous official's notes to find documentation of prior court-reported exposures and actions taken in response. As a result, we recommended that EOIR update internal guidance for responding to COVID-19 exposures in immigration courts to reflect current processes and criteria used in decision-making. In response, in October 2021, EOIR developed a "Frequently Asked Questions" document concerning health and safety requirements and court operations, including guidance on COVID-19 exposures, requirements for close contacts, and how each exposure is managed, including cleaning protocols. Updating its internal guidance should 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.
Executive Office for Immigration Review 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)
Closed – Implemented
In August 2021 , we reported that the Department of Justice's (DOJ) Executive Office for Immigration Review (EOIR) developed internal guidance on its processes for responding to COVID-19 exposures at immigration courts; however, we found that the guidance was out of date. In April 2020, EOIR headquarters developed a document outlining the process EOIR headquarters officials were to follow, and the criteria officials were to use, to make decisions about whether and how to respond to reported COVID-19 exposures in immigration courts. However, the guidance used an outdated definition of a close contact for criteria as of May 2021 and did not reflect several updates to EOIR's close contact definition throughout the pandemic . Further, several 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 . As a result, we recommended that EOIR distribute updated internal guidance on responding to COVID-19 exposures in immigration courts to all staff at EOIR headquarters and immigration courts . In response, EOIR developed a "Frequently Asked Questions" document concerning health and safety requirements and court operations, and distributed it to staff . Specifically, EOIR emailed the updated guidance to staff in late October 2021 , and distributed an updated version in November 2021. The document is also available on EOIR's internal website. Distributing updated internal guidance should 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 .
Executive Office for Immigration Review 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)
Closed – Implemented
In August 2021, we reported that the Department of Justice's (DOJ) Executive Office for Immigration Review (EOIR) did not regularly engage with stakeholders during the COVID-19 pandemic. Specifically, 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. As a result, we recommended that EOIR take additional steps to ensure that the agency regularly engages with court stakeholders about matters affecting court operations and their health and safety. In response, EOIR held a series of stakeholder national and local outreach and information-sharing sessions in fiscal year 2022, with plans for additional sessions in fiscal year 2023. During these sessions, stakeholders and EOIR officials have discussed court operations and health and safety protocols, among other topics. In addition, EOIR announced a new initiative in September 2021, called "Access EOIR," which included a March 2022 information-sharing session with the public. Taking steps to regularly engage with court stakeholders should help EOIR address their concerns about its response to the pandemic and maintain positive relationships in the future.

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