BRYAN, Texas (KBTX) – “You’re seeing an increased adoption of technologies across the immigration courts,” said Robert Dunikoski, deputy chief counsel for Immigration and Customs Enforcement in Dallas, U.S. Department of Homeland Security. “I think it is starting to lead to efficiencies.”
These efficiencies are much needed at this point, as there are nearly 1.2 million cases pending adjudication in immigration court. The numbers made headlines last year when they surpassed 1 million, but now, the issue largely sits in the background of public consciousness, lost behind flashier immigration stories.
Texas leads the country in pending immigration cases, with the average respondent in the state waits more than two years for their day in court.
Currently, only 14 percent of detainees have access to an attorney, and despite efforts, that rate of representation has not been increasing in recent years.
While Republicans and Democrats may not agree on what reform should look like, both sides of the aisle generally agree that reform needs to happen. Immigration court backlog might even be considered a bipartisan issue on that front, as it is jamming up American courtrooms and putting a strain on American resources.
On Tuesday, a group of attorneys joined a virtual roundtable for the Texas A&M University School of Law’s Changing Technology in Immigration Court: COVID-19 and Beyond webinar. They discussed how this technology can help—and occasionally hurt—cases in immigration court.
It used to be that hard copies of documents were needed in most immigration courts. Now, many of those papers are allowed to be emailed. Both DHS and immigration attorneys appear to be on board. “At DHS we love it,” said Dunikoski. “It’s fantastic. Right now at DHS, almost every piece of paper that comes into DHS gets digitized. So having it come in where it doesn’t have to be digitized because it’s already digital is fantastic. Save it to our case management system. It also allows our attorneys—during this pandemic, a lot of us have been working in a remote capacity. So it keeps us from having to come into the office and keeps our people safe.”
“Avoiding the expense and logistical burden of shipping a couple hundred pages worth of materials to immigration court has been a considerable benefit,” added Daniel Bleiberg, an associate at Jones Day’s Laredo Project.
A telephonic hearing is when some or all parties involved in the immigration court hearing are joining over the phone. It is widely available in immigration court, especially during the COVID-19 pandemic.
Attorneys for those responding to immigration court summons say this can help immigration lawyers access courtrooms without having to be there physically.
It also affects how and when an objection can be made to evidence presented during the hearing.
“If you want to appear telephonically, then you cannot say later that, ‘I’m going to object to evidence because I wasn’t physically there for it.’ You have to choose: do you want to appear telephonically, or how do you want to be able to submit evidence,” said Judge Hugo Martinez, the assistant chief immigration judge at the Fort Worth Immigration Adjudication Center. “But I don’t think there’s any standing order that I know of that prevents a party—either party—from objecting merely of some situation like appearing telephonically.”
How do remote adjudications generally affect immigration court outcomes? Some judges might argue that if you can’t see a respondent’s face, you might not be able to make that judgment call that you are hired to make.
But Martinez says that should never be the case.
“First and foremost, I think anybody who testifies in any scenario is nervous, especially a respondent who realizes that the hearing may result in their removal from the United States,” said Martinez. “But also in immigration court, most of but not all of the respondents are going to be foreign nationals who came to the U.S. from a myriad of different nationalities and religions and backgrounds and cultures that are going to be different from the American culture. So what we’re usually taught in the U.S. to look for as to determining someone’s credibility, like the ability of the individual to make eye contact, may not be taught in other cultures. So you shouldn’t take that into consideration because you may not be as familiar with the individual’s background to be able to say ‘Well, when he or she testified, they appeared nervous, or they didn’t make eye contact, therefore, I think they’re not being credible.’ I personally don’t do that.”
Another attorney has done research on how remote video adjudication affects outcomes. Ingrid Eagly, a professor at the UCLA law school, says her research shows that respondents participating in remote adjudication were more likely to be deported as a result of their case. However, she says that is not necessarily because of the judgments from the judges themselves. “Paradoxically, those who were assigned to the video setting were less likely to obtain a lawyer. They were less likely to seek voluntary departure,” said Eagly. They were less likely to see any form of relief. “
This brings up a larger point: some immigration attorneys are concerned that remote adjudication hurts the respondent-attorney relationship, not allowing them to have those informal moments of conversation, clarification, and planning.
Luz Herrera, a professor at the Texas A&M School of Law says those things could be possible, remotely, but it would cost.
“We’re spending a lot of money—putting a lot of federal money into private parties to develop huge detention centers, and I think we could probably invest a little portion of that money, or at least require some of these contracts to permit some technology built into what they’re doing that would allow—would facilitate some rooms that would permit respondents to have confidential conversations with their attorneys when they are being represented remotely,” said Herrera. “I think that would facilitate attorney-client relationship and might get more attorneys willing to take a case in one of the far-out detention centers where a lot of these things are being held.”
Herrera also called for better access to detainee records, something that would speed up the work of immigration attorneys.
“There is an opportunity to create maybe a national detainee database that allows pro bono counsel and other counsel to identify respondents who might be in need and need attorneys,” said Herrera. “I think there’s a lot that we can do with technology, but it does take a real commitment to want to make this system a little bit fairer.”
Choice–and maybe video conferencing
In the end, the roundtable attorney seemed to agree: choice is important. For those who want to go to immigration court in person, that choice should and does exist, resources permitting. For those who want to go to court over the phone, that option should and usually does exist. Furthermore, Dunikoski explained that the DHS is working on funding video conferencing for all immigration courtrooms.
For the full segment from First News at Four, see the video player above.
Copyright 2020 KBTX. All rights reserved.