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AILA Doc. No. 20020602 | Dated March 12, 2020
For years, legal organizations, including AILA, have opposed the use of video teleconference (VTC) to conduct in immigration merits hearings, except in matters in which the noncitizen has given consent. An empirical study published in the Northwestern University Law Review revealed that detained respondents appearing via VTC were more likely to be deported than those with in-person hearings. In April of 2017, a separate EOIR-commissioned report explained that VTC technology does not provide for the ability to transmit nonverbal cues, which can impact an immigration judges’ assessment of an individual’s demeanor and credibility. The report concluded that proceedings by VTC should be limited to procedural matters because appearances by VTC may interfere with due process.”
Additionally, technological glitches such as weak connections and bad audio can make it difficult to communicate effectively via VTC. An EOIR-commissioned study revealed that 29 percent of EOIR staff reported that VTC caused meaningful delay, a finding that is supported by accounts from courts including Omaha, which reported that VTC technology works “sometimes,” Salt Lake City, where observers stated that “technical delays are common,” and New York City, where immigration attorneys describe a VTC connection that “often stops working.” While EOIR claims that few cases are continued due to VTC malfunction, in reality, judges are only allowed to record one reason for a case being continued even if VTC issues contribute to a delay, which means that EOIR’s data is far from precise. Despite these concerns, EOIR has expanded its use of VTC for substantive hearings, going as far as to create two immigration adjudication centers where IJs adjudicate cases from around the country from a remote setting.
On March 9, 2020, the Trump administration will launch a pilot project in Houston immigration court through which all cases of detained unaccompanied children will be heard before a judge who joins the proceedings via video teleconference (VTC), a step that comes on the heels of a new administration directive requiring immigration judges to complete their unaccompanied children’s cases in 60 days.
(as stated in AILA’s comments on the Administrative Conference of the United States’ Immigration Removal Adjudications Report, from May 2012)
AILA strongly opposes the use of video teleconference technology to conduct immigration merits hearings, unless the respondent has knowingly waived his or her right to an in-person hearing. The decisions made in immigration court are weighty—for example, whether a family can remain together or whether an individual will be sent back to violence or even death in her home country. No matter how good the technology, video hearings can never be equivalent to in-person hearings. As the Committee has noted, particular concerns about video hearings include the physical separation between a lawyer and the client, difficulties with translators—exacerbated by the fact that translators often appear via phone and the inability of a television screen to transmit nonverbal cues. AILA was disappointed by the Committee’s position that continued and expanded use of video hearings is a foregone conclusion and, therefore, does not warrant further, in-depth and comprehensive study. It is no secret that EOIR is underfunded and overburdened. However, the amount of savings that video hearings might garner does not outweigh the need to protect a respondent’s due process rights. The dissatisfaction expressed by a significant number of immigration judges over video hearings should raise alarm bells about the impact of video hearings on respondents’ rights. Better technology and electronic docketing and case files, while important, would not address the most significant concerns immigration judges expressed about video hearings. With the rapidly expanding use of video hearings, it is vital importance that a comprehensive and in-depth study be undertaken to look at the impact of video hearings on respondents’ due process rights.
Cite as AILA Doc. No. 20020602.
In December 2018, CLINIC submitted a FOIA request to EOIR seeking statistics on immigration court adjudications of motions for telephonic and video appearances of attorneys, respondents, and witnesses. In April 2019, EOIR responded with a ten-tab spreadsheet breaking down adjudication of motions for telephonic appearance by court from fiscal year (FY) 2012 through FY2018 and adjudications of motions for video appearance by court for FY2018 only. From the FOIA results, CLINIC created a separate document, identical to the first, but incorporating percentages from the raw numbers to ease analysis.