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Immigration Courts Are Relying on Bad Tech

Immigration courts increasingly rely on video teleconference hearings, but those proceedings come with their own problems

Photo: Erik McGregor/Pacific Press/LightRocket via Getty

AsAs immigration court backlogs balloon to nearly 900,000 cases, the Trump administration has taken at least one decidedly technocratic approach to governance: expanding the use of video teleconference (VTC) court hearings, in which detained migrants, or the judges themselves, can beam into court. As long as wires aren’t crossed and the technology is running smoothly, the hearings are meant to proceed as normal. But the “solution,” as anybody who has ever conducted an office videoconference surely knows, comes with its own problems.

The Department of Justice claims that such VTC hearings save money and time. While the increased efficiency is in dispute by attorneys and advocates, it does seem to be resulting in more deportations. But immigration attorneys claim that VTC hearings undercut their clients’ access to due process and contribute to the growing backlog of pending immigration cases. Given the ever-expanding role such a process plays in immigration courts — in 2018 there were more than 125,000 TVC hearings, a 14.5% increase from the previous year — it’s quite possible that, in the near future, people coming to this country seeking asylum will never see a judge in person.

The idea behind VTC is that remote hearings will make the overburdened process run more efficiently. But technological glitches, faulty equipment, untrained or unaccustomed users, as well as increased difficulty for judges in reading the demeanor of a claimant or for attorneys to have confidential face time with their clients, all add up to what some activists claim is actually exacerbating the swelling backlog of cases — currently approaching 900,000. A 2017 study from the Executive Office of Immigration Review (EOIR) found that “issues with poor video and sound quality, can disrupt cases to the point that due process issues may arise.”

Everything gets more complicated for VTC hearings when interpretation is involved, and over 85% of people proceeding through immigration courts rely on an interpreter. Increasingly, immigrants appearing in those courts are speaking less common indigenous languages, such as Mam or K’iche’; finding interpreters for those individuals can be much more difficult. Not that there’s been any effort on that end: While EOIR hired nearly 200 new immigration judges in the last two years, it did not hire more interpreters. Because interpreters rely on both visual and audio cues to help determine meaning, a lot is liable to be lost in translation if interpreters are working across the wires. As the Brennan Center for Justice succinctly put it, “even the most sophisticated telephone technology makes it impossible to catch visual cues.”

Meanwhile, the use of VTC — referred to by the Department of Justice as a “force multiplier” — is expanding. In 2017, then Attorney General Jeff Sessions issued a “Strategic Caseload Reduction Memorandum” which, among other directives, imposed “caseload management goals and benchmarks” — basically quotas and deadlines — requiring immigration judges to complete 700 removal cases a year or risk losing their jobs. In order to facilitate that streamlining and expand “adjudicatory capacity,” the memo also endorsed the use of VTC “immigration adjudication centers.”

Because interpreters rely on both visual and audio cues to help determine meaning, a lot is liable to be lost in translation if interpreters are working across the wires.

There are currently two such “adjudication centers” in the country, courtroomish centers where judges conduct video hearings by “beaming into different courts on different days,” according to Laura Lynch, senior policy counsel at American Immigration Lawyers Association. Newly arrived asylum-seeking families in Chicago, for example, in a new family unit docket, are having all of their cases heard by judges in the Fort Worth “adjudication center.” “That’s something that is deeply concerning,” says Lynch, “that you would have vulnerable populations present their case over VTC. Many of these individuals need interpreters and have difficulty due to the harm that they’ve experienced.”

In March, the president of the National Association of Immigration Judges, Ashley Tabaddor, wrote a letter to the House Appropriations Committee. According to Tabaddor’s letter, there were 1,090 cases in 2018 that were adjourned due to video malfunctioning. At blame: “rampant problems with dropped connections, difficulty hearing or seeing people on the screens, extremely problematic issues with interpretation and coordination between telephonic interpreters and the VTC units.” VTC, the letter concludes, “is not a panacea.”

While the outcome of VTC hearings does seem to result in an overall higher number of deportations, it isn’t because judges decide more harshly when ruling via flatscreen, but because the litigants themselves expressed “depressed engagement” with the process, according to UCLA law professor Ingrid Eagly. Eagly says that respondents subjected to VTC felt “alienation, bewilderment, and confusion” and simply had trouble understanding the courtroom procedures and making their case to a judge.

LLast June, ICE’s New York Field Office unexpectedly announced that they would no longer transport detainees to immigration courts, and would instead conduct all hearings by VTC. But three New York-based legal organizations filed suit this February, alleging that the move undercuts their ability to represent their clients. At stake is the first-in-the-country “appointed counsel program,” the New York Immigrant Family Unity Project (NYIFUP), which offers representation to detained migrants who can’t afford an attorney. Since the institution of NYIFUP, in 2013, favorable outcomes for immigrants seeking relief has risen 1,100%. But, according to the lawsuit, VTC-only hearings have had “disastrous effects on detained immigrants” and NYIFUP’s ability to represent them. Andrea Sáenz, an attorney with NYIFUP, says that, under the program, lawyers generally have fewer or zero opportunities to meet confidentially with their clients. Previously, when clients came to the courtroom on the day of a hearing, attorneys could meet with them, confidentially and one-on-one. Now, the first interaction clients sometimes have with their attorneys is via an often-glitchy video screen, with an entire courtroom listening in. Sáenz says it’s all “very frustrating.” And yet, if EOIR has their way, this may be the future of all immigration court proceedings — at least for detained migrants.

The origin of the court backlog, at its root, is the growing gap between the human need (and proclivity) to migrate and the politics of nativism and refusal. Neither walls nor VTC — no matter how high or how slick — will be able to bridge that gap.

John Washington is a writer and translator focusing on immigration and criminal justice. His first book on US asylum history/policy is forthcoming from Verso.

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