New York Lawsuit Challenges Replacement of Immigration Court Hearings with Video Technology

An Immigration and Customs Enforcement agent at a federal detention facility in Buffalo, NY. (Source: Flickr/Department of Homeland Security)

In the latest salvo in a long debate over the use of video teleconferencing (VTC) technology in immigration courts, several legal aid organizations filed a class-action lawsuit on Feb. 12 in New York challenging the U.S. Immigration and Customs Enforcement (ICE) practice of denying in-person hearings to immigrants. The government and other proponents of remote adjudication by video argue that it improves efficiency, while skeptics worry about how it affects judges’ ability to evaluate credibility and immigrants’ ability to present their cases. There have been several legal challenges to the practice since it was introduced in 1996, though this most recent one is the largest and most sophisticated.

Immigration court proceedings have traditionally taken place in courtrooms. However, as dockets have grown and costs have ballooned, the government has increasingly explored methods of reducing the expenses associated with such proceedings. The Immigration and Nationality Act (INA) was amended in 1996 to give immigration judges discretion to conduct removal proceedings via VTC. The agency’s regulationstreat video hearings as interchangeable with in-person ones, and the Department of Justice encourages immigration judges to make use of this technology, emphasizing that it is an “effective and efficient” way to conduct hearings.

However, some experts have expressed concerns about the efficacy of proceedings conducted through VTC. A study from 2015 published in the Northwestern Law Review, which analyzed the impact of VTC on outcomes, found that respondents appearing by video were less likely to retain counsel and pursue relief from deportation—and thus were more likely to be deported. The Government Accountability Office’s 2017 reporton the issue cited court officials, experts and stakeholders who were concerned that VTC creates challenges in holding hearings, especially merits hearings, because of technical difficulties, confusion by noncitizens appearing in court without an attorney, and complication in translation services. Similarly, a 2017 report commissioned by the Executive Office for Immigration Review, the office within the Justice Department that operates the immigration courts, found that judges have difficulty interpreting body language and nonverbal communication over video feed, and that faulty VTC could be so disruptive to cases that “due process issues may arise.”

By Jessica Zhang, Andrew Patterson for LAWFARE

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