March 26, 2004
The Honorable Michael J. Creppy
Chief Immigration Judge
Executive Office for Immigration Review
U.S. Department of Justice
Dear Honorable Judge Creppy:
We, the undersigned organizations, write to express concern over the expanded use of video-conferencing technology in removal proceedings. We strongly oppose the use of video hearings and urge the Executive Office for Immigration Review to limit the use of video-conferencing technology. Video hearings increase the likelihood of due process violations. We are particularly concerned about the impact of merit hearings held via video, since due process violations that occur during merit hearings carry significant consequences for individuals in removal proceedings.
To date, the only court to examine the legality of video hearings in removal proceedings found that such hearings could potentially violate due process by depriving an individual of a full and fair hearing.[1] Such hearings are often plagued with technological problems related to defective equipment, and can result in confusion, misunderstandings, delays and rescheduled hearings. Video hearings complicate and sometimes make accurate translation extremely difficult if not impossible. They force legal representatives to chose between appearing in court with the Immigration Judge and Trial Attorney or at the detention facility with a client. Both options unfairly compromise an attorney’s ability to effectively represent his or her client. Finally, video hearings deprive Immigration Judges of the opportunity to examine a respondent’s demeanor in person. This undermines a respondent’s ability to make a sincere impression on the Immigration Judge, and can lead to inequitable credibility determinations.
Technical Problems
Immigration Court practitioners report many problems with video-conferencing equipment. The problems include frozen images, camera images that are too small or blurry to see, lack of camera movement throughout the courtroom so that only the Immigration Judge is seen during the hearing, breaks in audio transmission that require much repetition and that slow the pace of the hearing[2], as well as the interference of background noises picked up by the camera. Technical deficiencies can present several problems for all parties to the hearing, including difficulty in observing courtroom testimony, hearing a speaker, observing physical expressions, etc. Such problems can directly contribute to misunderstandings and consequently erroneous decisions. In a merit hearing, such problems can be especially detrimental to the outcome of a case.
Translation
Accurate translation is complicated by the physical separation of the translator and respondent. The natural cues, body language, and hesitations that signal the translator or the applicant to speak or pause are much more difficult to determine via video. Depending upon the scope or size of the image captured by the camera, such signs may not be transmitted at all. Video-conferencing makes it impossible for a translator to use hand signals and eye contact to interrupt a respondent’s speech to allow for translation. This leads to longer periods of speech before translation, which increases the likelihood that information is forgotten or unintentionally omitted. Accurate translation is critical in all hearings, but especially important in a merit hearing where the substance of a claim for relief from removal is fully articulated.
These problems are further exacerbated when the interpreter does not appear on camera and is therefore not visible to the respondent at the detention facility. Additionally, some practitioners have noted that in the absence of the respondent=s presence in the courtroom, there is a greater tendency for the Immigration Judge to speak without pausing for translation. As a distant figure on a screen, the respondent, and his or her need for translation are more easily forgotten. In such cases, attorneys have noted the need to be assertive to ensure ongoing translation throughout the hearing. It has also been noted that in courts where the Immigration Judge regularly instructs the translator sit next to the respondent to translate the final oral decision, the separation of the respondent and translator during hearings held via video makes this practice impossible.
Pro se individuals have no advocate in the courtroom working to ensure translation of the complete hearing. As a result, there is a greater probability that such individuals will be adversely impacted by inaccurate or incomplete translation. This will impair their ability to understand the purpose and significance of the hearing.
Interference with Effective Representation
During video-hearings, legal representatives are forced to choose between appearing in court with the Immigration Judge and trial attorney and appearing at the detention facility with a client. Both options unfairly compromise an attorney’s ability to effectively and best represent his or her client. During an in-person hearing, an applicant and his or her attorney sit next to each other in the courtroom. This proximity allows them to exchange notes, write or discuss questions or concerns that arise and must be clarified during the hearing, and to draw pictures if necessary. If, during a hearing, an attorney chooses to appear in the courtroom with the Immigration Judge, these fundamentals of the attorney-client relationship are lost. Confused or anxious clients separated from their attorneys are unable to privately request information or convey worries during video hearings. This reduces a respondent’s ability to participate in his or her hearing in a meaningful manner.
Conversely, if an attorney decides to appear with his or her client, this decision undermines the attorney’s ability to effectively cross-examine witnesses brought by the government, or to directly examine witnesses present to testify in support of the respondent. Absence from the courtroom also makes it impossible for the attorney and respondent to view and examine documents submitted by the government at the hearing. Moreover, video hearings decrease the respondent’s ability to present convincing evidence of physical injuries related to an asylum, withholding, or Convention Against Torture claims to the Immigration Court. The effect of video presentation of such injuries is not equivalent to the effect of an in-person presentation. The impact of something seen on screen is significantly less than something seen in-person. Effective cross-examination, as well as the ability to present and examine evidence are central to a fair and full hearing. Video hearings undermine one’s ability to achieve this.
Pro Se Respondents
Due process requires that an individual have the ability to meaningfully participate in a proceeding held against him or her. Respondents in removal hearings often face language barriers, and are unfamiliar with the U.S. legal system and the complex immigration laws that govern their procedures. Hearings held via camera only amplify these obstacles. Furthermore, immigrants in removal proceedings are not afforded court appointed counsel. Those who are unable to secure legal counsel due to their detention must proceed without a legal representative’s helpful explanation of the proceedings and laws that apply to their cases. There is a heightened need to ensure the ability of such individuals to meaningfully participate in their hearings. Video-hearings detract from this goal. The remoteness created by the camera decreases the likelihood that the respondent will understand the proceedings around him. Similarly, they make it equally more difficult for an Immigration Judge to ensure that a respondent understands the process and outcome of the proceedings. In-person hearings help to safeguard the fundamental need for the person subject to removal proceedings to understand and effectively participate in the proceeding. This is essential in a merit hearing since the outcome may result in permanent separation from family members residing in the United States or removal to a country where an individual’s life may be at stake.
Credibility Assessments
An Immigration Judge’s credibility determination is one of the most important findings in a removal proceeding. Many forms of relief from removal are dependent upon an Immigration Judge’s credibility finding. A process that interferes with a Judge’s ability to make a fair credibility finding carries significant consequences for the respondent. In Rusu v. INS, the court found that video hearings “”may render it difficult for a fact finder in adjudicative proceedings to make credibility determinations and to gauge demeanor.”” It is much more difficult to assess the credibility of a small image that appears on a television screen than a live person. Eye contact, body language, facial expressions and demeanor, all factors that influence credibility, cannot be sufficiently captured by video camera. The small size of the video screen and occasionally poor quality of the transmission can make a detainee’s expressions and body language extremely difficult for the Immigration Judge to observe. As a result, there is an increased likelihood that judges will make errors when assessing credibility during video-hearings.
Pro se individuals are particularly disadvantaged, as they attend video hearings without the benefit of preparation by legal counsel. Such individuals do not know where to look during the hearing and do not receive reminders from counsel to look into the camera. As a result, an Immigration Judge may wrongly perceive a respondent’s confusion or failure to consistently look directly at the camera to be a sign of insincerity or a lack of credibility.
For the above reasons, we respectfully request that the EOIR discontinue the use of video hearings. Video-hearings clearly involve multiple avenues where due process violations can occur. As stated above, in merit hearings the consequences of such violations are so amplified that no individual should be subjected to them.
Sincerely,
Organizations
American-Arab Anti-Discrimination Committee (ADC)
American Civil Liberties Union (ACLU)
American Friends Service Committee (AFSC)
American Immigration Lawyers Association (AILA)
Capital Area Immigrants’ Rights (CAIR) Coalition
Catholic Charities of the Archdiocese of New Orleans
Catholic Charities of Central Texas
Catholic Charities of the Diocese of Monterey
Catholic Charities of the Diocese of Santa Rosa
Catholic Charities of Idaho
4202 W. Emerald
Boise, ID 83706
Catholic Charities Immigration Legal Services of the Archdiocese of Washington
Catholic Charities Immigration Legal Services of Oregon
Catholic Charities Immigration Services of the Diocese of Charleston
Catholic Charities Migration and Refugee Services of the Archdiocese of Hartford
Catholic Charities Migration and Refugee Services of the Diocese of Cleveland
Catholic Charities Refugee and Immigrant Services of the Diocese of San Diego
Catholic Legal Immigration Network, Inc. (CLINIC)
Catholic Migration & Refugee Office, Diocese of Brooklyn
Catholic Social Services, Inc of the Archdiocese of Atlanta Immigration Services
Center for Gender and Refugee Studies
University of California, Hastings College of the Law
Chicago Legal Clinic, Inc.
Detention Resource Project
Diocesan Migrant & Refugee Services, Inc.
Florence Immigrant and Refugee Rights Project
Florida Immigrant Advocacy Center (FIAC)
Guadalupe Center
Holy Cross Church/Hispanic Ministry
Human Rights First (formerly Lawyers Committee for Human Rights)
Immigrant Law Center of Minnesota
Immigrant Legal Resource Center (ILRC)
Immigrant and Refugee Rights Project
Washington Lawyers’ Committee for Civil Rights and Urban Affairs
Immigration Equality
(formerly known as Lesbian and Gay Immigration Rights Task Force)
Immigration Law Project
Interfaith Legal Services for Immigrants
Interfaith Refugee & Immigration Ministries
Law Offices of Vikram Badrinath, P.C.
Lawyers’ Committee for Civil Rights
Legal Aid Society of Rochester, Inc. Immigration Program
Lutheran Immigration and Refugee Service
Margaret W. Wong & Associates
Mexican-American Political Organization
The Midwest Immigrant & Human Rights Center, a program of Heartland Alliance
Migration and Refugee Services of the Diocese of Trenton
National Immigration Forum
New York Immigration Coalition (NYIC)
National Asian Pacific American Legal Consortium (NAPALC)
Nesbit Law Firm
Northwest Immigrant Rights Project Office of the Appellate Defender
Political Asylum/Immigration Representation (PAIR) Project
PRIME – Ecumenical Commitment to Refugees
South Asian Network
Texas Lawyers’ Committee for Civil Rights
Washington Defender Association’s Immigration Project
Individuals
Deborah Anker
Director, Harvard Immigration and Refugee Clinical Program
Harvard Law School
Cynthia C. Arn, Esquire
Landis & Arn, P.A.
Regina Germain
Visiting Assistant Professor of Law
University of Denver College of Law
Karl Hack, Attorney
McConnell, Meyer and Associates
Jamila Harrison, Esq.
The Fogle Law Firm, LLC
Barbara Hines
Clinical Professor of Law
University of Texas at Austin School of Law
Robert E. Juceam
Partner, Fried, Frank, Harris, Shriver & Jacobson, LLP
Warren R. Kaufman
Attorney at Law
The Kaufman Law Firm
Sr. Joan Kobe, DW
St. Francis Catholic Church
Daniel M. Kowalski
Deborah Schneer, Esq
Attorney and Counselor at Law
Jill Stanton
Attorney at Law
Virgil Wiebe
Director of Clinical Education & Assistant Professor of Law
University of St. Thomas School of Law
Shelley Wittevrongel
Attorney at Law, P.C.
cc:
Kevin Rooney
Director, EOIR
Kevin Ohlson
Deputy Director, EOIR
Charles Adkins-Blanch
General Counsel, EOIR
James Comey
Deputy Attorney General, U.S. Department of Justice
[1] Rusu v. INS, 296 F. 3d 316, 321-22 (4th Cir. 2002).
[2] In one example from an attorney who attended a master calendar hearing held by video, almost everything said by the Immigration Judge had to be repeated at least three times before it was clearly understood because the audio transmission repeatedly failed.
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