Practicing Law in TV Land

The Executive Office for Immigration Review (EOIR) is completely enamored with 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 play a role in the tectonic shift to video versus in-person hearings.

To be fair, video hearings in the Immigration Court have been around for many years. During the COVID-19 pandemic the uptick in use of video equipment to conduct hearings was considerable and, in many ways, necessary. Given the inability to conduct in-person hearings during the height of the pandemic, 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 by video 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 Judge’s 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 while conducting a hearing using the Webex video system.

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 back-log 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 menial tasks clerks and other staff members should be doing. Even worse is the current situation in many courts where judges outnumber the actual court space and available technology at various locations. 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 just have Respondents and witness 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 thinks that’s OK, they would be wrong.

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 will not have access to the quality education and health care we enjoy in America.

The importance of 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, politicians and policy-makers with no business meddling in how to operate a court system often control how EOIR functions. The importance of an in-person hearing and live witness testimony has been lost in the push to produce numbers 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 and something that EOIR has consistently done in its push to produce numbers for policy makers and politicians who demonstrate no interest in the administration of justice. The only way to keep fairness and justice in the immigration system is to require in-person Individual Hearings, especially in complicated cases where live testimony allows a Judge to assess the character and veracity of witness testimony. 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 overuse of Webex should never become the norm.