Featured Issue: Use of Video Teleconferences During Immigration Hearings

In recent years, the Executive Office for Immigration Review (EOIR) has rapidly and widely expanded the use of mandatory virtual technologies in immigration hearings, without the necessary guardrails to ensure due process. For years, organizations have raised concerns about the use of virtual hearings to conduct immigration merits hearings. Decisions made in immigration court are weighty and virtual hearings can adversely affect respondents’ abilities to access due process in hearings.

For example, an empirical study published in the Northwestern University Law Review revealed that detained respondents appearing virtually were more likely to be deported than those with in-person hearings. In April of 2017, a separate EOIR-commissioned report concluded that virtual proceedings should be limited to procedural matters because virtual appearances may interfere with due process.

In October 2021, AILA published its position on the use of virtual technologies in immigration proceedings. In short, virtual technology should be used only at the Respondent’s request given the serious due process concerns at stake in removal proceedings. AILA and the Council have since published a policy brief that builds on this position, describing the challenges associated with the use of VTC, drawing lessons from other federal agencies, and recommending agency standards and guidance to spur change and optimize virtual technology use in immigration proceedings.

Our policy recommendations are necessary for the successful use of virtual technologies, which can be important and useful tools in removal proceedings if EOIR implements consistent and fair policies governing its use.

AILA's Position | AILA Resources | Advocacy Resources | Congressional Resources | Media Coverage

AILA’s Position and Recommendations

AILA takes the position that virtual hearings should be used only at the Respondent’s request given the serious due process concerns at stake in removal proceedings. While we understand circumstances might require that some master calendar hearings be held virtually, if a respondent requests an in-person master calendar hearing, EOIR should generally grant that request. However, individual hearings should be scheduled as in-person hearings unless a virtual hearing is specifically requested by the respondent. For more information, read AILA Position on the Use of Virtual Hearings in Immigration Removal Proceedings.

AILA and the Council’s policy brief builds on this position by describing the challenges associated with the use of VTC, drawing lessons from other federal agencies, and recommending agency standards and guidance to spur change and optimize virtual technology use in immigration proceedings. For more information, read Policy Brief: Use of Virtual Hearings in Removal Proceedings.

AILA Resources

• Policy Brief: Use of Virtual Hearings in Removal Proceedings
• AILA Position on the Use of Virtual Hearings in Removal Proceedings – October 20, 2021
• Call for Examples: Tell AILA What’s Going Wrong (and Right!) with WebEx – December 2021
• Practice Alert: Videos Replace Interpreters at Hearings – September 18, 2019
• Practice Alert: EOIR Policy Memo, No Dark Courtrooms - May 29, 2019
• AILA Policy Brief: Facts About the State of Our Nation’s Immigration Courts – May 14, 2019
• AILA Policy Brief: FOIA Reveals EOIR's Failed Plan for Fixing the Immigration Court Backlog - February 21, 2019
• FOIA Response: Booz Allen Hamilton Report on Immigration Courts – April 6, 2017
• AILA Comments on ACUS Immigration Removal Adjudications Report – May 3, 2012

Advocacy Resources

• Children’s Advocates Call for Immediate Suspension of Plan to Subject Unaccompanied Children to Remote Video Hearings – March 5, 2020
• ABA Journal: Video teleconference program for immigrant children 'is contrary to the American pursuit of justice,' ABA says – March 5, 2020
• KIND Statement: New Trump Administration policies eviscerate protections for children alone – March 3, 2020
• Young Center for Immigrant Children’s Rights: Immigration Hearings by Video: A Threat to Children’s Right to Fair Proceedings – Updated January 2020
• American Immigration Council: The Judicial Black Sites the Government Created to Speed Up Deportations – January 7, 2019
• ABA Letter to Acting EOIR Director Jean King: Comments on EOIR Operating Policies and Procedures Memoranda and Policy Memoranda - May 20, 2021
• ABA 2019 Update Report – Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (March 2019).
• TRAC Report: Use of Video in Place of In-Person Immigration Court Hearings – January 28, 2020
• GAO Report: Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges – June 1, 2017
• Ingrid Eagly, Northwestern Law Review, Remote Adjudication in Immigration, 2015.

Congressional Resources

• Representatives Urge DOJ to Restore Due Process to Removal Proceedings and Improve Docket Management Protocols – March 29, 2022
• The Joint Explanatory Report accompanying H.R. 1158, the “Consolidated Appropriations Act, 2020,” that was signed into law on December 20, 2019, directed EOIR to collect real-time data indicating each time a master calendar or individual merits hearing is conducted via VTC. This information is to be provided in the quarterly reports submitted to the Committees and should include the number and type of hearings conducted by VTC, including data on appeals cases related to the use of VTC and the number of in-person hearing motions filed. The language also directed EOIR to make publicly available all policies and procedures related to its use of VTC, and to note and justify any deviations from EOIR’s VTC standard policy and procedures in EOIR’s quarterly report to the committees. To date, EOIR has published some VTC statistics to its website but EOIR has failed to publish its VTC policies and procedures (including those related to EOIR’s use of Immigration Adjudication Centers) to its website.
• Forty-Two House Democrats Demand that DOJ Rescind New Plan to Eliminate In-Court Interpreters - July 26, 2019

Media Coverage

• The Hill: (Op-ed) Remote hearings for unaccompanied children proves a disaster - March 16, 2020
• Associated Press: More Children Face Immigration Judges Through Video Screens – March 11, 2020
• Houston Chronicle: New Trump administration policies fast-track some children’s immigration court hearings, including video pilot in Houston – March 4, 2020
• AP News: AP Visits Immigration Courts Across US, Finds Nonstop Chaos – January 19, 2020
• BuzzFeed News: Immigration "Tent Courts" Aren't Allowing Full Access to the Public, Attorneys Say - January 13, 2020
• CNN: More immigration judges to be assigned to cases at tent facilities – December 6, 2019
• Law 360: Immigration Courts’ Video Evolution Stirs Due Process Fears – November 17, 2019
• Dallas Morning News: Judges, lawyers say video justice is just adding to the mess within U.S. immigration courts – September 28, 2019
• Los Angeles Times: Trump administration bars access to immigration tent courts – September 11, 2019
• San Francisco Chronicle: Confusion, delays as videos replace interpreters at immigrants’ hearings – September 5, 2019
  
  • EOIR video transcript for detained respondents;
  • EOIR video transcript for nondetained respondents; and
  • FAQ for pro se respondents.
• (NY) Gothamist: Immigration Judges Fear Switch to Video Explainers Loses Personal Touch – July 29, 2019
• Pacific Standard: Immigration Courts Are Replacing Interpreters with Orientation Videos- July 19, 2019
• San Francisco Chronicle: Videos start replacing interpreters at immigration court hearings – July 17, 2019
• Buzzfeed: Immigration Judges Are Railing Against A Plan To Replace Court Interpreters With Videos – July 12, 2019
• San Francisco Chronicle: Trump administration ending in-person interpreters at immigrants’ first hearing – July 3, 2019
• WNYC: Use of Video Technology Surges in Immigration Courts – December 17, 2018
• WMYC: Do Immigrants Get a Fair Day in Court When It’s by Video - September 11, 2018
• AP: Immigrant advocates slam video hearings for detained kids – November 8, 2018
• Mother Jones: How Trial by Skype Became the Norm in Immigration Court – May/June 2018

Cite as AILA Doc. No. 20020602.