We just received a call from the Immigration Court Administrator with jurisdiction over the state of Montana, and were informed that the final deportation hearings scheduled in Montana this May will now be conducted by video conferencing. We are representing clients in eight final deportation hearings next month, and this came as a surprise to us. We were told that this change in policy arose due to budget cuts from the sequester, and is likely to continue for the foreseeable future.
This means that when a Montana resident appears for a final deportation/removal hearing, only the individuals and their attorney will be physically present in the room. The Immigration Judge, who is based out of Portland, Oregon, used to travel to Montana twice a year to conduct final deportation hearings in person. Now, the Immigration Judge will appear through a computer system that transmits two-way audio and video. The Department of Homeland Security (“DHS”) attorneys who “prosecute” the cases will also be appearing by video conferencing from their offices in Denver, Colorado. Each of the parties are supposed to be able to see and hear one another, but many groups have questioned whether this impersonal method of conducting hearings prejudices the immigrant’s ability to get a fair hearing.
Individuals in final deportation hearings have a lot at stake, as they may be separated from spouses and children, and removed to their home country. Many individuals in removal proceedings are seeking asylum because they fear persecution or death in their home countries. They have a right to testify, present witnesses, and present documentary evidence. However, one study found that “videoconferencing may interfere with the ability of immigrants to present their cases in court and also creates a lack of transparency of the process. In particular, we found considerable evidence that videoconferencing was marred by technical problems, exacerbated interpretation difficulties, interfered with access to counsel, and impaired the presentation of evidence.”
The potential problems with conducting Immigration Court hearings by video conferencing include:
- Immigration Judges are often required to make credibility determinations to see if an individual is telling the truth. Being unable to see the individual in person could negatively impact that determination. “Commentators have focused particularly on the risk that videoconferencing may skew a court’s perception of defendants or other witnesses through its failure to convey subtle nonverbal cues, its interference with ordinary eye contact, and the possibility that camera angles or screen size will distort perceptions of a witness’s affect.” Indeed, “[s]tudies indicate that fact-finders empathize more with live witnesses, and that decision makers are less likely to be sensitive to the impact of negative decisions on physically remote persons.”
- Technical problems often occur with the video equipment, leading to inability to effectively communicate.
- Video conferencing can exacerbate language issues, creating an extra layer of inefficiency in communicating through translation. Translators often appear by telephone through the court. This extra electronic communication, on top of the video conferencing, could lead to frustration at the individual in removal, or even miscommunication of his or her rights.
- Being unable to walk over and show the Immigration Judge evidence could make it more difficult to effectively present evidence, especially documentary evidence. While attorneys typically submit all exhibits ahead of time, individuals who are not represented by an attorney often present new evidence on the day of the hearing. Unless accommodations are made, this is not possible through video conferencing.
To prevent these potential barriers to a fair hearing, the American Immigration Lawyer’s Association has recommended that “the regulation should provide that an evidentiary hearing on the merits may only be conducted through video conference with the consent of the respondent.” If presented with the option, our clients would prefer an in-person hearing.
Montana has always been a bit unusual, because initial status hearings called “master calendar” hearings have always been conducted by telephone. Montana’s Immigration Court is located in Helena, Montana, in a DHS office across from the airport. We routinely attend status hearings with our clients, and convey information by speaking into a speakerphone. Because status hearings are rarely very in-depth, this works fine. However, once a final deportation hearing is scheduled, an Immigration Judge has always driven or flown to Montana to preside over the hearing in person.
Now that all Montana hearings — even final deportation hearings — will be conducted by video conferencing, we share the concerns expressed above. We will be considering our options to preserve our clients’ rights, and we will be carefully monitoring the experience to determine if objections are warranted.