Illegal immigrants exempt from DOJ’s vaccine mandate at deportation hearings

The federal vaccine mandate will soon apply to Justice Department employees, contractors and visitors to its buildings, but one group it won’t apply to is illegal immigrants showing up for their deportation case hearings.

The migrants are deemed an exception to President Biden‘s mandates because they are seeking a public benefit or service. That means they will not have to prove they’ve been vaccinated or show a negative COVID-19 test from the previous three days. Their attorneys are also exempt.

Those exemptions aren’t sitting well with immigration judges and other employees who will have to interact with the unvaccinated. They say allowing in unvaccinated and untested people defeats the purpose of the mandate.

“Everyone coming to immigration court should be subject to the same rules,” said one Justice Department official. “A double standard undermines the rationale for the vaccine mandate and puts everyone at risk.”

In its August memo laying out COVID-19 rules, the department said all employees, on-site contractors and visitors need vaccinations or proof of recent negative tests. The exception is for visitors entering Justice Department buildings “to obtain a public service or benefit.”

The department’s executive office for immigration review has determined that people showing up for their immigration hearings are there to get a benefit and are not subject to the mandate.

“The Biden administration is requiring highly educated and skilled immigration judges to get the COVID-19 vaccine or risk losing their jobs. Meanwhile, the same administration is allowing unvaccinated foreign nationals to stream over our borders and remain in our country illegally,” an employee at the immigration review office told The Washington Times. “And nobody forces those immigration violators — or their attorneys — to get vaccinated before appearing in immigration court. This is patent absurdity worthy of a Fellini film.”

After this story first published online, EOIR issued a statement to The Times saying visitors are still supposed to follow Centers for Disease Control and Prevention guidelines inside the building.

“Immigration judges may ask a respondent or a representative who is not wearing a face covering to verify their vaccination status to determine whether it would be appropriate to wear a face covering, and may ask respondents or representatives to wear a face covering regardless of vaccination status,” the agency said.

COVID-19 has left the Biden administration with a tricky balancing act. The president wants to encourage vaccination but doesn’t want to chase people away from needed services.

In the case of immigration courts, which hear cases of migrants facing deportation proceedings, no-shows can end up with deportation orders in absentia.

Immigration courts complete about 8,000 cases a month, according to the most recent data from the immigration review office.

The vaccine mandate in federal buildings was announced in July. It is one in a series of steps Mr. Biden has taken in recent months to try to constrain the lingering coronavirus.

In September, Mr. Biden announced the mandate for executive branch employees and set a Nov. 22 deadline for vaccination.

The immigration courts, as part of the Justice Department, fall under the executive branch and are subject to Mr. Biden‘s orders. That means the judges, their support staff and the lawyers from U.S. Immigration and Customs Enforcement who argue the government’s side of cases are required to comply.

Regular federal courts are in a separate branch of government under the Constitution and do not follow the president’s directives. Each of the nation’s district and appeals courts is writing its own rules for vaccines for employees and visitors.

In Maryland, the chief judge ordered employees to be vaccinated. If they have a religious or medical objection, they must undergo weekly testing. That policy did not mention any requirement for courthouse visitors. Virginia’s Eastern District courthouses adopted a similar policy.

New Jersey’s chief federal judge did include visitors in her vaccine mandate. That covers attorneys and criminal defendants. The judge said those who aren’t vaccinated may enter only if they show a negative test result within 72 hours.

New York’s Southern District requires vaccines or a recent negative test for visitors who have traveled outside New York and its neighboring states. Even with full vaccination, international travelers are required to show negative test results, and the unvaccinated must show they have been quarantined and received negative test results.

People who have business at the courthouse but don’t meet the vaccine visitor mandate are told to call their attorneys or the offices they are scheduled to visit.

Other agencies that interact face-to-face with the public also are grappling with how to treat visitors.

Social Security said in-person visits are by appointment only and pointed to a webpage listing criteria for those visits. Visitors must answer a self-screening but there is no mention of a vaccine or testing mandate to enter. 

The Times also reached out to the IRS and the National Park Service to see how they were handling the visitor vaccination mandate and the public benefit exemption. Neither provided answers.

The federal Office of Personnel Management referred questions to the White House Office of Management and Budget, which also did not comment.

Most of the attention on Mr. Biden‘s mandates has focused on federal employees, who face the Nov. 22 deadline.

Given the two-week time frame for full vaccination after the final shot, that means the effective deadline is Nov. 8. The Biden administration has said agencies may begin disciplining violators on Nov. 9, according to OPM.

Some federal employees have said the process for seeking an exemption to the mandate for religious or medical reasons is broken, leaving those with valid reasons exposed to disciplinary action.

Sen. James M. Inhofe of Oklahoma, the ranking Republican on the Senate Armed Services Committee, this week called the Defense Department’s exemption process unrealistic. Tens of thousands of troops have yet to comply with the mandate.

Mr. Inhofe worried that the country’s military readiness could falter at a critical time.

“Combined with the uncertainty and burden the vaccination mandate places on industry, this administration will do more damage to the nation’s security than any external threat,” Mr. Inhofe said.

Rep. Carlos A. Gimenez of Florida, the top Republican on the House Homeland Security Committee’s subcommittee on transportation security, worried that the holiday travel season could be disrupted by a low vaccination rate among Transportation Security Administration employees.

“While I agree that having a fully vaccinated TSA workforce should be the objective, I believe that, like all Americans, federal employees should have the right to choose if and when they will receive the vaccine based on personal health considerations and their own timeline, not the federal government’s,” Mr. Gimenez said in a statement.

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