March 01, 2012

ABA Concerned About Videoconferencing in Immigration Courts; Urges Allowing Requests for In-Person Hearings

The ABA last month commended the Administrative Conference of the United States (ACUS) for undertaking a study of immigration adjudication, noting that both the ACUS draft report released in January and a detailed report issued by the ABA in 2010 focus on ensuring fairness and promoting efficiency in the adjudication system.

In a Feb. 17 letter to ACUS, ABA Governmental Affairs Director Thomas M. Susman said that the association agrees with a number of the ACUS draft recommendations but has concerns about the use of video teleconferencing (VTC) in immigration adjudication hearings.

The ABA opposes using VTC in immigration hearings, except in procedural matters in which the noncitizen has given consent. The association also maintains that the Executive Office of Immigration Review (EOIR) should work with Immigration and Customs   Enforcement to ensure that every new detention facility includes a courtroom and that detainees who are in removal proceedings are housed in facilities with courtrooms or provided transportation to an immigration court for non-procedural matters.

The ACUS draft report recommends further study to determine the effect of VTC on immigration adjudication.

 “We have serious concerns with the Executive Office of Immigration Review’s increased use of videoconferencing in immigration hearings, in spite of a lack of information regarding its possible effect on case outcomes,” Susman said, noting that the ABA’s concerns are compounded by the serious challenges confronting the immigration adjudication system, including persistent lack of adequate representation.

According to the ABA, VTC makes it difficult, if not impossible, for attorneys to consult confidentially with their clients. In some detention facilities, counsel is required to attend the hearing with the judge and may only communicate with clients through video technology during the hearing.

In addition, VTC may make it difficult for respondents to understand interpreters and may discourage them from asking questions. Susman also pointed out that many detainees do not understand the roles of individuals in the courtroom, and sometimes are not certain which individual is the judge.

VTC also makes it harder for parties, attorneys, and the immigration judge to communicate and connect emotionally, Susman said, which compounds difficulties faced by vulnerable individuals such as juveniles and individuals diagnosed with severe mental illnesses.

He urged the conference to recommend that noncitizens in the immigration adjudication system be allowed to request in-person hearings, but he said the draft report also should encourage EOIR to establish clear standards for immigration judges and other personnel using video technology.

In other areas of the draft report, the ABA does not agree with a recommendation calling for an evaluation of whether fees may be appropriate for defensive asylum filings. The ABA opposes charging fees for applications for humanitarian forms of immigration relief and associated benefits.

Susman wrote that the association appreciates the report’s call for assistance from EOIR and the Department of Homeland Security for transcription into additional languages of the forthcoming ABA Know Your Rights video, which provides information to detainees on immigration law and the immigration court process.

To further examine the use of VCT in immigration adjudication hearings, ACUS has scheduled a meeting focusing on the issue this month.

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