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Mimi Tsankov
The pandemic has reset settled expectations about how we interact in the workplace, and that transformation has hurled the nation's immigration courts on a technological voyage into the 21st century.
Despite record congressional appropriations over the past few cycles targeted, in part, on technological advances, the court has relied historically on physical files, paper communications and traditional, in-person exchanges.[1]
Although video teleconferencing has been in limited use at the immigration court since the mid-1990s, those hearings were most often in detained settings, relying typically on judges, attorneys, interpreters and legal staff who were physically present in the courthouse.[2]
Not so post-September 2021, when pandemic restraints required the U.S. Department of Justice's Executive Office for Immigration Review, or EOIR, home to the immigration court system, to rethink the basics of how we interact.
During the pandemic, with court staff hamstrung for months, struggling to process mountains of court-paper filings, and judges in some jurisdictions unable to hold hearings, EOIR rolled out about 100 specially equipped laptops with digital audio recording applications installed and connected to a commercially available video conferencing application called Cisco Webex.
These so-called DAR laptops enable the parties, the witnesses, the public and even the judge to appear at hearings virtually because the laptops can digitally record the video hearings in the same way as a judge in a courtroom.[3]
This powerful advance was made all the more effective with the introduction of the EOIR Courts and Appeals System, or ECAS, an online tool for filing and maintaining records of proceeding that is now operational throughout the entire immigration court system.[4]
Thousands of hearings have now been held virtually, and are helping to chip away at the stubborn backlog, which reached over two million cases as of January.[5] The new system is helping an agency, often criticized for antiquated systems, leverage cutting-edge technology to alleviate its caseload and adjudicate cases efficiently.[6] Because remote hearings were so effective, EOIR continued to support their use even as we saw the pandemic receding.[7]
Trial judges are finding that use of the DAR laptops with Webex is efficient and provides for great elasticity, as the court can dispatch judges to handle urgent cases in different locales as needed, without the judge having to physically go anywhere. Furthermore, with shortages of courtroom space at some locations, a remote judge corps can offer cost savings to traditional brick-and-mortar courthouse requirements.
However, for all of their speed and convenience, remote hearings raise significant concerns. For years, the legacy immigration court video teleconferencing hearings had been criticized as due-process denying, and inferior to fully in-person hearings.
Those concerns remain, and yet, with Webex now powering full days of hearings in more than 149 courtrooms around the nation, perhaps the most significant and lasting effect of the pandemic on the court will be whether the DAR laptops and Webex can satisfy due process and stakeholder needs while reducing the case backlog.
What's clear is that with an ever-growing burden of cases waiting for their day in court, the DAR laptops are helping to keep the court-going public safer as COVID continues to linger. Moreover, from a transparency standpoint, the public and members of the media can now access hearings nationwide with the click of a link.
As for how proceedings look and feel — think Zoom with judicial robes and the DOJ seal in the virtual background. With nothing more than an internet connection, the U.S. Department of Homeland Security assistants chief counsel represent the federal government in immigration court proceedings by accessing dedicated judicial hearing rooms online.
Assistants chief counsel housed within U.S. Immigration and Customs Enforcement are supplied by DHS with their own laptops that enable them to appear virtually at all hearings nationwide, whether or not the judge is holding the hearing via a DAR laptop.
Many private bar attorneys tell us that they consider the new system to be a win since they can appear in cases outside their home city. Remote hearings have become a force multiplier. Counsel can now represent clients in hearings around the country, in any of the 75 immigration courts, from the safety of their law firm offices. Moreover, they can opt to have their clients appear either alongside them or remotely, access being virtually limitless from a technology perspective.
As for lingering due process concerns, the American Immigration Lawyers Association, the leading association of immigration law practitioners, cautions that "virtual hearings should be used only at the Respondent's request given the serious due process concerns at stake in removal proceedings."[8]
The pandemic seems to have shocked the immigration court into action following release of an April 2021 DOJ Office of Inspector General report finding that court hearings were affected in large part because of the court's technological limitations, including its lack of laptops.[9]
Since hearings need to generate an official transcript and that requires integration with the court's digital audio recording system, it took time to develop a system workaround. Yet, what started in mid-2021 with a soft rollout of just 32 DAR-enabled laptops seems to be catching the immigration courts up to what is becoming the status quo.
Reporting since 2020 suggests that almost all federal, state and municipal courts around the nation used virtual hearings to some degree during the pandemic. Now that courts have entered a new phase of relative normalcy, the vast majority of these plan to continue holding virtual proceedings.[10]
A 2021 Thomson Reuters study revealed that "[o]nly 7% of the respondents ... said they didn't plan to hold any remote court proceedings after the pandemic."[11]
On June 22, 2022, the DOJ OIG released an updated report examining how the court has been improving its ability to leverage technology to address its mandate. The report, "Limited-Scope Inspection and Review of Video Teleconference Use for Immigration Hearings," acknowledges some success, but highlighted that this technology had only been rolled out to about 25% of the judge corps.[12]
Results revealed that the system is working pretty well. While there continue to be occasional connectivity issues, the judges interviewed reported adequate audio and good video capabilities.
That said, digitization of two million court files requires significant manpower, and has presented a strain on already overburdened resources. Scanning of the files is being phased in and, to date, only a fraction of the cases in the backlog have been transferred to the electronic format.[13]
Continuing areas of concern are the court's ability to provide full and complete simultaneous interpretation in these virtual hearings, and how this and other features of remote hearings can affect due process. The workaround use of consecutive interpretation is considered inferior, yet is difficult to avoid when the interpreter isn't physically in the same room as the noncitizen respondent in proceedings.
In the months and years ahead, perhaps the court will introduce new features that could address these concerns, such as abandoning DAR audio recordings in favor of video recordings for transcription and appellate review purposes, expanding the use of virtual breakout rooms for private attorney-client discussions and enabling remote interpreters to use dedicated audio links to provide simultaneous interpretation that doesn't render the master recording a jumble of overlapping voices.
With improvements sure to be made as technological capabilities advance in the years ahead, the OIG has recommended that immigration courts "[c]ontinue the deployment of remote kits to immigration judges to ensure that immigration judges have the equipment necessary to adjudicate hearings efficiently from non-court settings." This way, judges can more easily assist courts in areas overwhelmed by new cases, and mitigate health- and safety-related court cancelations.
Expansion of the remote judge corps program offers obvious efficiencies, especially if the court is able to speed up and optimize digitization of our backlogged files. Although there are some courts that are reducing reliance on the remote hearing program, as of February that appears to be an anomaly given the overwhelming support nationwide for the program.[14]
With the trial immigration judges poised to adapt and adopt these advances, it will be up to EOIR management to lead the way in determining how quickly and effectively these and other stakeholder-identified challenges can be addressed.
Mimi Tsankov has been an immigration judge since 2006 and is president of the National Association of Immigration Judges.
The opinions expressed are those of the author, who is the president of the National Association of Immigration Judges, and do not necessarily reflect the views of the U.S. Department of Justice, the attorney general, the Executive Office for Immigration Review, Portfolio Media Inc. or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.justice.gov/jmd/page/file/1398386/download.
[2] U.S. Department of Justice, Final Rule, Executive Office for Immigration Review; Stipulated Requests for Deportation or Exclusion Orders, Telephonic, Video Electronic Media Hearings, Federal Register Volume 60, Number 95, May 17, 1995.
[3] https://oig.justice.gov/sites/default/files/reports/21-063.pdf.
[4] https://www.justice.gov/eoir/ECAS.
[5] https://trac.syr.edu/phptools/immigration/court_backlog/.
[6] https://oig.justice.gov/sites/default/files/reports/22-084.pdf.
[7] https://www.justice.gov/eoir-operational-status.
[8] https://www.aila.org/infonet/video-teleconferences-immigration-hearings.
[9] https://oig.justice.gov/sites/default/files/reports/21-063.pdf.
[10] https://news.bloomberglaw.com/us-law-week/zoom-courts-will-stick-around-as-virus-forces-seismic-change.
[11] https://www.law.com/nationallawjournal/2021/08/18/virtual-court-hearings-are-here-to-stay-post-pandemic-survey-finds/.
[12] https://oig.justice.gov/sites/default/files/reports/22-084.pdf.
[13] https://www.justice.gov/eoir/ECAS_1.
[14] https://www.law360.com/immigration/articles/1570183/virtual-immigration-hearing-denials-improper-nj-judge-rules.