**4. Access to Justice**

Section 2.3 above indicated that the Human Rights Committee has interpreted Article 7 to require access to lawyers. In addition, Article 9(4) provides a right to judicial review for those deprived of their liberty that has also been interpreted by the Committee as including "prompt and regular access" to lawyers (United Nations Human Rights Committee 2014b, para. 58). Once it became evident that the pandemic could have a devastating effect in the United States, the Executive Office for Immigration Review (EOIR), the office that manages the immigration court system, began grappling with how to respond to COVID-19. On 15 March 2020, the EOIR announced that hearings scheduled for people not in detention would be postponed, but that the courts would remain open for other matters. It later began to close immigration courts and announced rules requiring visitors (including attorneys) to courts operated by DHS and located in detention centers to wear PPE—some even specified that visitors must provide their own (Adelstein and Keith 2020).

While it may seem a positive development that the EOIR did not suspend hearings for detainees, given the poor quality of protection measures implemented in ICE facilities, continuing in-person hearings for detained immigrants posed an unnecessary risk of contamination for all people present in the immigration courts, including the immigrants themselves. Speaking to the Texas Tribune, Judge Ashley Tabaddor, president of the National Association of Immigration Judges, commented that "[f]ailing to close all of the nation's Immigration Courts, both non-detained and detained settings, now will exacerbate a once-in-a-century public health crisis and lead to a greater loss of life" (Aguilar 2020). In addition, the requirement to wear PPE at a time when there was a shortage of PPE, meant that some lawyers were unable to go to the courts and detention centers to see clients whose cases were progressing (Aguilar 2020).

These specific circumstances must be viewed in the larger context of access to justice for immigrants. In particular, unlike criminal defendants, immigrants do not have the right to a court-appointed lawyer. This leaves most immigrants without representation when it comes to contesting their detention and deportation orders (Eagly and Shafer 2015).<sup>34</sup> Without legal representation, it is often extremely difficult to obtain release. In fact, represented immigrants are "three times more likely to be released and 10.5 times more likely to establish their right to remain in the United States" than unrepresented immigrants (Vera Institute of Justice 2020, p. 1). Not being able to obtain release from detention because of a lack of access to a lawyer means that many immigrants are unnecessarily detained for prolonged periods of time in facilities that were already struggling to meet human rights minimums before the pandemic.

Each of these issues together created a perfect storm in immigration detention facilities. Although pandemics on the scale of COVID-19 are infrequent, it is not smart to assume that they will continue to be so rare. It is also not wise to presume that the low number of detainees reported by ICE at the end of 2020 is a sign of a change in detention practice. Indeed, as of 4 June 2021, ICE reported 24,100 people in detention.<sup>35</sup> That is a 26% increase from the 19,068 people detained at the end of 2020. It seems that ICE is returning to its pre-pandemic level of detaining immigrants. It is therefore of the utmost importance to consider what can and should be done to safeguard the fundamental rights of detainees in future outbreaks.
