National Immigration Forum

Practical Solutions for Immigrants and America

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Virtual Due Process

July 15, 2010 - Posted by Lena Graber

Video screen 

In the United States, due process is about having an adequate opportunity to present your story to an independent judge, to stand before a neutral decision maker and explain your situation to him or her.  Fundamental is the idea that the accused have the chance, in person or through their lawyer, to speak directly to a judge, respond to the evidence against them, and argue their case.


In immigration proceedings, where fundamental legal rights are determined and in some cases matters of life and death may be ruled upon, this basic principle of due process has been eroded beyond recognition.  Immigrants often testify not before a judge, but before a video camera, sign away their legal rights without translation or explanation, and are not allotted adequate time or attention for the judge to make a reasoned decision on their case.  Some of this has to do with changes made in the immigration laws in the past 15 years, as Congress has made it much more difficult for immigrants to have their day in court.  Some of the erosion of due process rights is the result of how the laws are implemented in the immigration courts.


Today, the immigration courts have notorious backlogs in their caseloads, and immigration judges hear far more cases per year than their counterpart administrative judges in other tribunals.  Another key problem is the lack of any legal representation for the majority of immigration respondents, particularly those who are detained.  (84% of immigrants who appear before the immigration courts while in Department of Homeland Security custody are not represented by a lawyer.)


In February, the ABA, in an exhaustive study of the entire immigration court system, found among other problems that resources for immigration courts are insufficient; that decisions among different immigration judges are highly inconsistent; that judges have inadequate time to sufficiently consider cases; and that DHS attorneys did not properly use discretion in weeding out less important issues or cases. 


Congress occasionally takes a look at the immigration court system.  On June 17, the House Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law held an oversight hearing on the Executive Office for Immigration Review (EOIR), the office within the Department of Justice under which the immigration courts are organized.  In her remarks, Chairwoman Zoe Lofgren noted that,


“At a time when resources dedicated to the apprehension of illegal immigrants have rapidly increased, there has not been a corresponding increase in resources necessary for the immigration courts…”


One way the courts have been dealing with lack of resources is to adopt the expediency of video teleconferencing.


Aaron Haas recently described a video conference in a Harvard University publication:


“It may surprise many people to witness an immigration hearing in present-day America….  They are likely to see a small room deep within a large federal building, with two tables perpendicular to one another, connected to form a right angle. At each table sits a lawyer, one representing the government and the other the alien. A row of chairs behind these tables and against the walls seat the family and friends of the subject of these proceedings. On the other side of the room, in view of the advocates and observers, is a television screen with a camera on top. This monitor shows, on one side of the screen, the judge, who may be located in another state, and on the other side, the immigrant, who is seated in a detention center in a third location.”


Lawrence Schneider, speaking recently on a panel at the Annual Immigration Law and Policy Conference organized by Georgetown University, the Migration Policy Institute, and the Catholic Legal Immigration Network, painted a picture of a video- conference hearing and raised questions about it,


"Videoconferencing presents fundamental conflicts to adequate representation, for the lucky immigrant detainees who do have counsel.  Picture this: the judge is in one location, speaking to a screen, and the immigration respondent is in a detention center hours away, looking back at a screen.  Where is their lawyer?  Does she go to the detention center to confer with her client, or go to the courtroom or office where the judge sits, to speak to them directly?"


Videoconference removal hearings, rather than physical appearances, were permitted by federal statute in 1996, and have increased in usage considerably in recent years.  The ABA, in its study mentioned above, found that videoconference hearings, which have become the only form of hearing for a great number of immigration detainees, can prevent the noncitizen from communicating effectively and confidentially with counsel, and impair the immigration judge’s ability to make accurate credibility determinations.  Close to 50% of the EOIR docket are detainee cases, and many immigration courts only allow detainees to appear for their hearings over videoconference.  This number will only rise as the courts search for efficiencies, and the detained docket grows as a proportion of the cases before the courts.


The ABA’s analysis of 500,000 cases found that videoconferencing doubled the likelihood that an asylum applicant is denied.  In addition, 45% of proceedings have technical problems, including lack of translation, interruption of the video feed, and lack of access to counsel. 


Videoconferencing is unquestionably cheaper than in-person hearings.  But at what cost to the integrity of our judicial system?  While modern technology has in many cases expedited and improved due process, it has also eroded that fundamental right to stand before a judge and present your case.  The ABA recommended that only procedural matters be decided by videoconference, while hearings on the merits should require in-person testimony.  It should be obvious that having one’s day in court assumes that one is actually in the courtroom.



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