The COVID-19 pandemic ushered in dramatic changes to the operations of the Immigration Courts including vast expansion of the use of video technology, so much so that consideration of how critical in-person hearings are for people fighting to stay in this country has been lost in the shuffle. Immigration lawyers have played a role in this tectonic shift to video rather than in-person hearings.
To be fair, video hearings in the Immigration Court have been around for many years, they aren’t just a result of the COVID-19 pandemic, though of course during the pandemic the uptick in use of video equipment to conduct hearings was considerable and, in many ways, necessary. In-person hearings were impossible during the height of the pandemic, so use of video equipment increased substantially in an effort to keep courts running. This shift in how hearings are conducted was not limited to Immigration Courts. All courts had to adjust to using video technology to conduct motion hearings, conferences, and various other matters in order to keep cases moving through the court system. Notably, however, state and federal courts continued to recognize the importance of in-person hearings for trials. Unfortunately, EOIR didn’t get the message. EOIR has now set up an “adjudication center” in Richmond, Virginia, and staffed the court with judges who only conduct hearings by video, including Master Calendar and Individual Hearings. Many attorneys, especially those who work for the government, have fully embraced hearings conducted using EOIR’s Webex system which allows judges, lawyers, respondents and witnesses to all be in different places physically.
However convenient, the shift to video hearings has caused multiple problems with EOIR operations, court efficiency, and the administration of justice. For starters, EOIR’s solution to cutting through the backlog of cases in the immigration courts has been to hire more immigration judges. While hiring judges to conduct hearings might seem well-intended, EOIR has consistently failed to hire clerks and other staff members to help judges manage their respective case-loads. In fact, it’s quite normal during a hearing to watch the judge manage operation of video technology, shuffle files, print orders, make copies and manage other tasks that would be more efficiently done by clerks and other staff members. Even worse is the current situation in many courts where judges outnumber the actual court space and available technology. EOIR’s answer to this problem is to have attorneys provide their own technology, their office space, their home, and their staff to conduct hearings and to provide waiting areas for witnesses who they intend to call at these video hearings. If the attorney does not have adequate office space for these accommodations EOIR’s response is to have respondents and witnesses located somewhere other than the attorney’s office so they can provide testimony by video. In these situations, attorneys will have no direct communication with their client during a hearing. In case anyone reading this thinks that’s OK, you’re wrong. Being able to immediately communicate with your client is key during a court proceeding.
Certainly, technology plays an important role in our court system and that role will most likely expand over time. Regardless of what courts may require in terms of technology to conduct hearings, the importance of in-person testimony at substantive hearings must never be underestimated or forgotten. In the Immigration Court an Individual Hearing is a non-citizens’ last real chance to remain in the United States. The difference between winning and losing can mean a noncitizen will spend the rest of his or her life in this country or their home country where their life may be in danger or their family might be separated.
A fair and unbiased hearing for respondents in removal proceedings is paramount. Unfortunately, EOIR policy and practice is primarily driven by results measured in terms of the number of cases adjudicated. Because EOIR is not an independent court, it is far more vulnerable to influence by politicians and policy-makers with no expertise in how to operate a court system – a vulnerability that was exploited aggressively by the previous administration. The importance of an in-person hearing and live witness testimony has been lost in the push to close cases and deport people rather than justice.
While state and federal courts obviously understand the necessity for in-person hearings for jury trials, it’s a mistake to think that individual judges are immune from the impact of a witness testifying in the courtroom where the judge actually sits. The effect on a judge’s decision making when a respondent testifies in-person versus by video or by affidavit is incomparable. Underestimating the human impact in-person testimony has on other humans is a big mistake.
It seems to me, after decades in this area of law, that the only way to keep fairness and justice in the immigration system is to ensure the availability of in-person Individual Hearings, especially in complicated cases where live testimony allows a judge to better assess the character and veracity of witness testimony. In 2022, EOIR issued guidance to immigration judges on the use of virtual hearings, but far more clear guidance and standards are needed to ensure fairness. Last year, AILA issued detailed recommendations on virtual hearings. Continuing to allow video or telephonic testimony from witnesses when necessary can continue as an effective way to move cases through our immigration system, but deference should be given to protect the due process rights and interests of the noncitizen. Overuse of Webex should never become the norm.