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AILA Doc. No. 20020602 | Dated May 5, 2022
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 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.
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.
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